As filed with the Securities and Exchange Commission on August 29, 2025.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Elauwit Connection, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 4899 | 84-3890657 | ||
| (State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
1700 Alta Vista Drive, Suite 130
Columbia, SC 29223
(704) 558-3099
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Barry Rubens
Chief Executive Officer
1700 Alta Vista Drive, Suite 130
Columbia, SC 29223
(704) 558-3099
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Alexander R. McClean, Esq. Margaret K. Rhoda, Esq. Harter Secrest & Emery LLP 1600 Bausch & Lomb Place Rochester, NY 14604 Tel: (585) 232-6500 Fax: (585) 232-2152 |
M. Ali Panjwani, Esq. Pryor Cashman LLP 7 Times Square, 40th Floor New York, NY 10036 Tel: (212) 421-4100 Fax: (212) 326-0806 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ¨ | Accelerated filer ¨ | |||
| Non-accelerated filer x | Smaller reporting company x | |||
| Emerging growth company x |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
| PRELIMINARY PROSPECTUS | SUBJECT TO COMPLETION, DATED August 29, 2025 |
1,500,000 Shares of Common Stock
ELAUWIT CONNECTION, INC.
This is an initial public offering of shares of our common stock. We are offering on a firm commitment basis, shares of common stock, par value $0.0001 per share (“common stock”). The initial public offering price per share of common stock is expected to be between $9.00 and $11.00.
Prior to this offering, there has been no public market for our common stock. We have applied to list our common stock on the Nasdaq Capital Market (“Nasdaq”) under the symbol “ELWT.” No assurance can be given that our application will be approved. If our application is not approved or we otherwise determine that we will not be able to secure the listing of our common stock on Nasdaq, we will not complete this offering.
We are an “emerging growth company” and a “smaller reporting company” as defined under the federal securities laws and, as such, we have elected to comply with certain reduced public company reporting requirements for this prospectus and future filings. See “Prospectus Summary — Implications of Being an Emerging Growth Company and Smaller Reporting Company.”
Investing in our securities is speculative and involves a high degree of risk. You should carefully consider the risk factors beginning on page 6 of this prospectus before purchasing our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
| Price Per Share | Total | |||||||
| Public offering price | $ | $ | ||||||
| Underwriting discounts and commissions (1) | $ | $ | ||||||
| Proceeds to us, before expenses | $ | $ | ||||||
| (1) | Craig-Hallum will be due no less than 80% of the underwriting discount and Maxim Group LLC will be due no less than 20% of the underwriting discount. We have also agreed to issue warrants to purchase shares common stock to the representative of the underwriters and reimburse the underwriters for certain expenses in connection with this offering. See “Underwriting” for additional information regarding total underwriting compensation, including information on underwriting discounts and offering expenses. |
Upon the closing of this offering, we will issue to Craig-Hallum Capital Group LLC (“Craig-Hallum”) or its designee, as the representative of the underwriters in this offering, warrants entitling it to purchase a number of shares of common stock equal to 7.0% of the shares of common stock sold in this offering at an exercise price equal to 115% of the public offering price in this offering (the “Representative’s Warrants”). The Representative’s Warrants shall be exercisable immediately and will expire five years after the effective date of the registration statement of which this prospectus forms a part. This prospectus also relates to the offering of the shares of common stock issuable upon exercise of the Representative’s Warrants.
We have granted the representative of underwriters an option to purchase from us, at the public offering price, up to an additional 225,000 shares of common stock, less the underwriting discounts and commissions, within 45 days from the closing of this offering to cover over-allotments, if any. If the representative of the underwriters exercises the option in full, the total underwriting discounts and commissions payable will be $ , and the total proceeds to us, before expenses, will be $ .
The underwriters expect to deliver the shares of common stock to purchasers on or about , 2025, subject to the satisfaction of customary closing conditions.
Sole Bookrunner
Craig-Hallum
The date of this prospectus is , 2025
TABLE OF CONTENTS
You should rely only on the information contained in this prospectus and in any free writing prospectus. We and the underwriters have not authorized anyone to provide you with information different from that contained in this prospectus. We and the underwriters take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We and the underwriters are offering to sell, and seeking offers to buy, our securities only in jurisdictions where offers and sales are permitted. The information in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of our securities.
The information contained in this prospectus is current only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of our securities. Our business, financial condition, results of operations and prospects may have changed since that date.
Neither we nor any of the underwriters have done anything that would permit this offering or possession or distribution of this prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of our securities and the distribution of this prospectus outside of the United States.
This prospectus includes estimates regarding market and industry data. Unless otherwise indicated, information concerning our industry and the markets in which we operate, including our general expectations, market position, market opportunity and market size, are based on our management’s knowledge and experience in the markets in which we operate, together with currently available information obtained from various sources, including publicly available information, industry reports and publications, surveys, our customers, trade and business organizations and other contacts in the markets in which we operate. Certain information is based on management estimates, which have been derived from third-party sources, as well as data from our internal research, and are based on certain assumptions that we believe to be reasonable.
In presenting this information, we have made certain assumptions that we believe to be reasonable based on such data and other similar sources and on our knowledge of, and our experience to date in, the markets in which we operate. Market and industry data, which is derived in part from management’s estimates and beliefs, are subject to change and may be limited by the availability of raw data, the voluntary nature of the data gathering process and other limitations inherent in any statistical survey of such data. In addition, projections, assumptions and estimates of the future performance of the markets in which we operate and our future performance are necessarily subject to uncertainty and risk due to a variety of factors, including those described in “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements.” These and other factors could cause results to differ materially from those expressed in the estimates made by third parties and by us.
We own or have rights to trademarks or trade names that we use in connection with the operation of our business, including our corporate names, logos and website names. In addition, we own or have the rights to copyrights, trade secrets and other proprietary rights that protect the content of our products. This prospectus may also contain trademarks, service marks and trade names of other companies, which are the property of their respective owners. Our use or display of third parties’ trademarks, service marks, trade names or products in this prospectus is not intended to, and should not be read to, imply a relationship with or endorsement or sponsorship of us. Solely for convenience, some of the copyrights, trade names and trademarks referred to in this prospectus are listed without their ©, ® and ™ symbols, but we will assert, to the fullest extent under applicable law, our rights to our copyrights, trade names and trademarks. All other trademarks are the property of their respective owners.
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The following summary highlights information contained elsewhere in this prospectus and is qualified in its entirety by the more detailed information and financial statements included elsewhere in this prospectus. This summary does not contain all of the information you should consider before investing in our securities. Before you decide to invest in our securities, you should read and carefully consider the following summary together with the entire prospectus, including our financial statements and the related notes thereto and the matters discussed in the sections in this prospectus entitled “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and “Business.” Some of the statements in this prospectus constitute forward-looking statements that involve risks and uncertainties. See “Cautionary Note Regarding Forward-Looking Statements.” Our actual results could differ materially from those anticipated in such forward-looking statements as a result of certain factors, including those discussed in the “Risk Factors” and other sections of this prospectus. In this prospectus, unless otherwise stated or the context otherwise requires, references to “Elauwit,” the “Company,” “we,” “us,” “our,” or similar references mean Elauwit Connection, Inc. on a consolidated basis.
Our Company
We are a provider of broadband Internet networks for the multifamily and student housing property sector. We provide Managed Services and Network-as-a-Service solutions designed to modernize and enhance the Internet connectivity experience for residents while driving significant financial benefits for property owners.
We strive to be a leading player in a booming multifamily property conversion trend through service commitment, operational experience and flexibility. Key highlights of our business and market opportunity include:
| · | There is an untapped market to fulfill major demand for network services in multifamily housing units: |
| o | According to market estimates from the National Multifamily Housing Council (NMHC), there are approximately 23 million apartment units in the U.S, and we estimate 55% of those units are well-suited for our network services. |
| o | Through our own market research using data provided by CoStar, a platform that provides comprehensive commercial real estate information, we estimate there are 10 million units in our addressable market of properties with 100 properties or more for overbuilds, or installing our network in a multifamily building with an existing network. |
| o | According to the National Apartment Association, the United States needs to build more than 4.6 million new apartment homes at a minimum, with as many as 11.7 million needed by 2030. |
| · | Our pipeline is rapidly growing due to our longstanding relationships and expanding customer base. From both existing and new customer relationships, we are currently tracking over 400 opportunities for our Managed Services solution, representing $103.5 million of potential network construction revenue and an estimated $22 million annual recurring revenue, if we were able to successfully complete all of these opportunities. We have also identified approximately 265,000 units in our near-term Network-as-a-Service pipeline, which we estimate could represent $150 million in annual recurring revenue. |
| · | We have a strong reputation for execution, customer satisfaction and top-notch support from our current business and our management team’s association with Elauwit Networks, LLC, which was acquired by Boingo Wireless, Inc. (“Boingo”) for total consideration of approximately $28.6 million in August 2018. |
| · | Our resident experience focused service offering helps our property owner customers differentiate their communities through our high-speed, instant-on, internet access approach paired with customer support developed to deliver timely, wholistic support. |
| · | We have a highly repeatable and efficient network installation process, where we install fiber or switched ethernet to each unit in a multifamily property. Once our network is installed, we achieve 100% penetration of our network to the units. |
| · | Once our network is installed, we have the opportunity to collect high margin, recurring revenue streams with ongoing service packages. If we are able to appropriately scale our business, we believe we could achieve up to 70% and 75% gross margin in our Managed Services and Network-as-a-Service lines of business, respectively. |
| · | We view the fragmented competitive landscape as ripe for consolidation. We have identified over 40 competitors as potential acquisition opportunities we plan to explore. |
We design, install, operate, and maintain new fiber optic and WiFi networks throughout each contracted property. Once installed, property owners begin selling Internet connectivity over our network directly to their residents at monthly prices and terms of their choosing. We, in turn, provide all resident activation, onboarding, customer support, and all network monitoring and maintenance services in exchange for a fixed monthly fee based on the number of units in the property times a monthly per-unit wholesale price. Our contracts with property owners generally have five to eight-year terms.
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By implementing Elauwit’s network and services, multifamily property owners:
| · | Bring the latest fiber-based Internet connectivity and WiFi services to their entire property, which has become an important factor in a property’s appeal to current and potential residents, |
| · | Provide residents with directly connected upload and download speeds of 1 gigabit per second (“Gbps”) as generally measured by the industry, plus both in-unit and all-property WiFi connectivity averaging between 200 and 500 Mbps as generally measured by the industry, plus 24/7 customer service and support provided by Elauwit, |
| · | Increase their per-unit contribution to net operating income by the difference between the monthly retail rate they charge to residents and our monthly wholesale fee to them, and |
| · | Reduce duplicative operating expenses by moving over technology assets and services to Elauwit. |
Our mission is to be the leading experience provider of Internet access solutions. For our property ownership clients, this means clear communication and timely execution. For the end users of our service, residents and their guests, this means dedication to the objective of providing an excellent resident experience. We differentiate ourselves in the area of resident experience by building reliable networks, responding to service requests quickly, establishing support protocols that lead to industry-leading first touch resolution metrics, and communicating effectively with key stakeholders throughout.
We closely monitor the challenges and needs of development and ownership groups in the real estate sectors in focus. A continued theme has been the fragmented market of service providers in the space in which we operate and issues stemming out of such. We view these issues to be a large opportunity for our business and an indication that consolidation is likely in the near future. We aim to be a driver of consolidation.
Corporate History and Structure
Our company was incorporated on May 15, 2024, in the State of Delaware as DeltaMax, Inc. Effective September 13, 2024, Elauwit Connection, Inc., a company incorporated on December 4, 2019 in the State of Delaware, merged with and into us with us as the surviving entity, where we will continue the business of Elauwit Connection, Inc. Also on September 13, 2024, we changed our name to Elauwit Connection, Inc. to reflect the nature of the business of the merged corporation.
Our principal address is 1700 Alta Vista Drive, Suite 130, Columbia, SC 29223. Our telephone number is (704) 558-3099. We maintain a website at www.elauwit.com. The information contained on our website is not, and should not be interpreted to be, incorporated into this prospectus, and you should not rely on any such information in making the decision of whether to purchase our securities.
Listing on the Nasdaq Capital Market
There is currently no public trading market for our shares of common stock. In connection with this offering, we have applied to list our common stock on the Nasdaq Capital Market (“Nasdaq”) under the symbol “ELWT.” If our listing application is approved, we expect to list our common stock on Nasdaq upon consummation of the offering. No assurance can be given that our listing application will be approved or that our common stock will be listed on Nasdaq. This offering will occur only if Nasdaq approves the listing of our common stock.
Implications of Being an Emerging Growth Company and Smaller Reporting Company
We qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). As a result, we are permitted to, and intend to, rely on exemptions from certain disclosure requirements that are applicable to other companies that are not emerging growth companies. Accordingly, we have included detailed compensation information for only our three most highly compensated executive officers and have not included a compensation discussion and analysis of our executive compensation programs in this prospectus. In addition, for so long as we are an “emerging growth company,” we will not be required to:
| · | engage an auditor to report on our internal control over financial reporting pursuant to Section 404(b) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”); |
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| · | comply with any requirement that may be adopted by the Public Company Accounting Oversight Board (“PCAOB”) regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements; |
| · | comply with new or revised accounting standards applicable to public companies as quickly as other public companies; |
| · | submit certain executive compensation matters to stockholder advisory votes, such as “say-on-pay,” “say-on-frequency,” and “say-on-golden parachutes;” or |
| · | disclose certain executive compensation related items such as the correlation between executive compensation and performance and comparison of the chief executive officer’s compensation to median employee compensation. |
We will remain an “emerging growth company” until the earliest to occur of:
| · | our reporting $1.235 billion or more in annual gross revenues; |
| · | our issuance, in a three-year period, of more than $1 billion in non-convertible debt; |
| · | the end of the fiscal year in which the market value of our common stock held by non-affiliates exceeds $700 million on the last business day of our second fiscal quarter; and |
| · | December 31, 2030. |
We cannot predict if investors will find our securities less attractive because we may rely on these exemptions, which could result in a less active trading market for our securities and increased volatility in the price of our securities.
Finally, we are a “smaller reporting company” (and may continue to qualify as such even after we no longer qualify as an emerging growth company) and accordingly may provide less public disclosure than larger public companies, including the inclusion of only two years of audited financial statements and only two years of management’s discussion and analysis of financial condition and results of operations disclosure. As a result, the information that we provide to our stockholders may be different than you might receive from other public reporting companies in which you hold equity interests.
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THE OFFERING
| Issuer: | Elauwit Connection, Inc. | |
| Securities being offered by us: | 1,500,000 shares of common stock (or 1,725,000 shares of common stock if the underwriters exercise their over-allotment option in full). | |
| Assumed public offering price: | $10.00 per share, which is the mid-point of the price range indicated on the cover page of this prospectus. | |
| Common stock outstanding immediately prior to this offering: | 5,000,000 shares | |
| Common stock to be outstanding immediately after this offering: | 6,500,000 shares(1) (or 6,725,000 shares if the underwriters exercise their over-allotment option in full). | |
| Over-allotment option: | We have granted the underwriters an option, exercisable for 45 days after the closing of the offering, to purchase up to an additional 225,000 shares of common stock at the public offering price less the underwriting discounts payable by us, solely to cover over-allotments, if any. | |
| Use of proceeds: | We intend to use the net proceeds from this offering for debt repayment, Network-as-a-Service project deployments, sales and marketing organizational development, payment of deferred compensation, working capital and general corporate purposes. See “Use of Proceeds.” | |
| Underwriter compensation: | The underwriters will receive an underwriting discount equal to 7.0% of the gross proceeds from the sale of securities in the offering. We will also reimburse Craig-Hallum Capital Group LLC (“Craig-Hallum”) for certain out-of-pocket actual expenses related to the offering. See “Underwriting.” | |
| Representative’s Warrants: | Upon the closing of this offering, we will issue to Craig-Hallum or its designee, as the representative of the underwriters in this offering, warrants entitling it to purchase a number of shares of common stock equal to 7.0% of the shares of common stock sold in this offering at an exercise price equal to 115% of the public offering price in this offering (the “Representative’s Warrants”). The Representative’s Warrants shall be exercisable immediately and will expire five years after the effective date of the registration statement of which this prospectus forms a part. This prospectus also relates to the offering of the shares of common stock issuable upon exercise of the Representative’s Warrants. | |
| Proposed Nasdaq trading symbol: | We have applied to have our common stock listed on Nasdaq under the symbol “ELWT.” No assurance can be given that the listing will be approved or that a trading market will develop for the common stock. We will not complete this offering unless we receive approval for listing on Nasdaq. |
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| Lock-up agreements: | We and our directors, officers and the holders of 10% or more of the outstanding shares of our common stock have agreed with the representative not to offer for sale, issue, sell, contract to sell, pledge or otherwise dispose of any of our securities for a period of six months after the closing of this offering. See “Underwriting—Lock-Up Agreements.” | |
| Dividend policy: | Holders of our common stock are entitled to ratably receive dividends as may be declared and paid from time to time by the Board of Directors (the “Board”). We have never paid cash dividends on any of our capital stock, and we do not anticipate paying any cash dividends on our common stock in the foreseeable future. See “Dividend Policy.” | |
| Transfer agent and registrar: | The transfer agent and registrar for our common stock is Colonial Stock Transfer Company, Inc. | |
| Risk factors: | The securities offered by this prospectus are speculative and involve a high degree of risk. Investors purchasing securities should not purchase the securities unless they can afford the loss of their entire investment. See “Risk Factors” beginning on page 6. |
| (1) | The number of shares of our common stock to be outstanding following this offering is based on 5,000,000 outstanding shares of common stock as of August 29, 2025 and excludes: |
| · | shares of our common stock issuable upon the conversion the simple agreement for future equity (“SAFE”); and |
| · | shares of our common stock issuable upon the exercise of the Representative’s Warrants to be issued in this offering. |
Unless otherwise indicated, this prospectus reflects and assumes that the following are not converted into or exercised for shares of our common stock:
| · | shares of our common stock issuable upon the conversion of the SAFE; |
| · | shares of our common stock issuable upon the exercise of the Representative’s Warrants to be issued in this offering; and |
| · | no exercise by the underwriters of their option to purchase up to 225,000 additional shares of our common stock from us to cover over-allotments, if any. |
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Investing in our securities is highly speculative and involves a significant degree of risk. You should carefully consider the risks described below and elsewhere in this prospectus, which could materially and adversely affect our business, results of operations or financial condition. Our business faces significant risks and the risks described below may not be the only risks we face. Additional risks not presently known to us or that we currently believe are immaterial may materially affect our business, results of operations, or financial condition. If any of these risks occur, the trading price of our common stock could decline and you may lose all or part of your investment.
Risks Related to Our Business
We have a history of losses, expect to continue to incur losses in the near term and may not achieve or sustain profitability in the future, and as a result, our management has identified and our auditors agreed that there is a substantial doubt about our ability to continue as a going concern.
We have incurred significant losses since our inception. We experienced net losses of approximately $0.4 million during the six months ended June 30, 2025 and $3.5 million and $2.7 million for the years ended December 31, 2024 and 2023, respectively. We expect our capital expenses and operational expenses to increase in the future due to investing in network construction activities and, therefore, our operating losses will continue or even increase at least through the near term. Our sales cycle is long, and a substantial amount of time could pass between when we begin the process of deploying our network for a project and when we are able recognize revenue or realize gross margin contributions from the project. Furthermore, to the extent that we are successful in increasing our customer base, we will also incur increased expenses to meet the demand of our customers. You should not rely upon our past results as indicative of future performance. We may not reach profitability in the near future or at any specific time in the future. If and when our operations do become profitable, we may not sustain profitability.
The report of our independent registered public accounting firm that accompanies our audited consolidated financial statements in this prospectus contains a going concern qualification in which such firm expressed substantial doubt about our ability to continue as a going concern. Our consolidated financial statements do not include any adjustments that might result if we are unable to continue as a going concern. If we are unable to continue as a going concern, holders of our securities might lose their entire investment.
We may need to raise additional capital, which may not be available on favorable terms, if at all, and which may cause dilution to holders of our common stock, restrict our operations or adversely affect our ability to operate our business.
If we need to raise additional funds due to unforeseen circumstances or material expenditures or if our operating results are worse than expected, we cannot be certain that we will be able to obtain additional financing on favorable terms, if at all, and any additional financings could result in additional dilution to holders of our common stock. Debt financing, if available, may involve agreements that include covenants limiting or restricting our ability to take specific actions such as incurring additional debt, expending capital, or declaring dividends, or which impose financial covenants on us that limit our ability to achieve our business objectives. If we need additional capital and cannot raise it on acceptable terms, we may not be able to meet our business objectives, our stock price may fall and you may lose some or all of your investment.
Our secured indebtedness could have important consequences to you.
Our secured indebtedness could have important consequences to you. For example, it could:
| · | limit our ability to obtain additional financing for working capital, capital expenditures, acquisitions and other general corporate requirements; |
| · | require us to dedicate a portion of our cash flow from operations to payments on our debt, thereby reducing the availability of our cash flow for operations and other purposes; |
| · | limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; and |
| · | place us at a competitive disadvantage compared to competitors that may have proportionately less debt and greater financial resources. |
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Our secured indebtedness is secured by a security interest in a portion of our accounts receivable. If we were to default on our obligations under these loans and arrangements, the counterparties would have the right to our assets. We could be required to dispose of material assets or operations to meet our debt service and other obligations, and the value realized on such assets or operations will depend on market conditions and the availability of buyers. Accordingly, any such sale may not, among other things, be for a sufficient dollar amount. If we were to otherwise attempt to sell material assets or operations, the foregoing encumbrances may limit our ability to dispose of material assets or operations. In the event that the counterparties enforced their rights to our assets, we may have to discontinue our business, and our investors could lose all or a part of their investment in us.
We have a relatively short operating history, which makes it difficult to evaluate our business and future prospects.
We have a relatively short operating history, which makes it difficult to evaluate our business and future prospects. Our business has been in existence only since December 2019. We have encountered, and will continue to encounter, risks and difficulties frequently experienced by growing companies in rapidly changing industries, including those related to:
| · | market acceptance of our current and future services; |
| · | our ability to compete with other companies offering similar products and services; |
| · | our ability to effectively market our services and attract new customers; |
| · | the amount and timing of expenses, particularly expenses related to the installation of our Network-as-a-Service solutions, and expenses related to the maintenance and expansion of our business, operations and infrastructure; |
| · | our ability to control costs, including our expenses; |
| · | our ability to manage organic growth; |
| · | changing regulatory environments and costs associated with compliance; and |
| · | general economic conditions and events. |
If we do not manage these risks successfully, our business and financial performance will be adversely affected.
Given our relatively limited operating history, we have historically earned most of our revenue from a limited number of ownership groups, and if we lose any of these ownership groups as customers or if we are unable to replace the revenue, our financial condition and results from operations would be materially and adversely affected.
Given our relatively limited operating history, we have historically earned most of our revenue from a limited number of ownership groups. During the six months ended June 30, 2025, two ownership groups accounted for approximately 48% of our total revenue. During the year ended December 31, 2024, three ownership groups accounted for approximately 36% of our total revenue. As of June 30, 2025, three ownership groups accounted for approximately 58% of our accounts receivable balance. As of December 31, 2024, two ownership groups accounted for approximately 65% of our accounts receivable balance. Revenue from a single ownership group may comprise a material portion of our revenue at a certain point in time, primarily due to the timing of recognizing network construction revenue for a project, which comprises a significant portion of the Company’s expected revenue on a given project. This concentration of revenue from ownership groups leaves us exposed to the risks associated with the loss of one or more of these significant ownership groups as customers, which would materially and adversely affect our revenue and results of operations. If these ownership groups were to significantly reduce their relationship with us, or in the event that we are unable to replace the revenue through the provision of our services to additional ownership groups, our financial condition and results from operations could be negatively impacted, and such impact could be significant.
We could be directly or indirectly affected by potential regulatory changes to our industry and our financial condition, results of operations and business may be adversely affected.
The current regulatory environment for our Managed Services and Network-as-a-Service solutions is uncertain. We may be directly impacted by any federal or state regulation of our industry or indirectly impacted through any federal or state regulation that affects property owners. We are aware of state legislation in areas where we do not yet operate that could impact our revenue if we were to enter those markets. The legislation limits the markup or fee property owners can charge tenants for the services we provide and bill to property owners. In addition, any federal regulation related to bulk billing could limit our ability to effectively grow our business. If an ‘anti-bulk’ proposal were approved, property owners of multifamily housing properties would not be able to enter into bulk billing agreements with network service providers for a property, which would significantly adversely affect our business, financial condition or results of operations.
If we are unable to adapt to the speed of changes in wireless network infrastructure and anticipate market adoption of new technologies our financial condition, results of operations and business may be adversely impacted.
Our future success depends upon growing demand for wireless connected services. The demand for wireless connectivity may decrease or may grow more slowly than expected. Any such decrease in the demand or slowing rate of growth could have a material adverse effect on our business. The continued demand for wireless connectivity services depends on the continued proliferation of smartphones, tablets and other wireless connection enabled devices. Our revenue is derived from the demand from consumers for internet connectivity and from property owners attempting to provide consumers with greater connectivity. We may face challenges as we seek to increase the revenue generated from our Managed Services and Network-as-a-Service solutions.
A portion of our business depends on the continued integration of WiFi as a standard feature in internet connected devices. If WiFi ceases to be a standard feature in internet connected devices, or if the rate of integration of WiFi on devices decreases or is slower than expected, the market for our services may be substantially diminished.
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We deliver value to our users by providing simple access to WiFi networks, regardless of whether we manage and operate the network, or the network is operated by a property owner. As a result, our business depends on our ability to anticipate and quickly adapt to changing technological standards and advances. If technological standards change and we fail to adapt accordingly, our business and revenue may be adversely affected.
A significant portion of our revenue is dependent on our relationships with our property owners and network partners, and if these relationships are impaired or terminated, or if our partners do not perform as expected, our business and results of operations could be materially and adversely affected.
We depend on our relationships with property owners in order to manage and operate our Managed Services and Network-as-a-Service solutions. These relationships allow us to generate revenue and new property owner relationships. Our agreements with our property owners and telecom operators are for defined periods and of varying durations. In order to maintain our relationships with property owners, we may need to upgrade our networks or make other changes to our products and services we provide, which would, in most cases, require significantly higher initial capital expenditures than we have historically incurred, and if we are unsuccessful, our relationships could be impaired. If property owners terminate or fail to renew these agreements, our ability to generate and retain property owner relationships would be diminished, which might result in a significant disruption of our business and adversely affect our operating results. Further, any delays in our ability to complete the upgrade of our networks or build out new networks could adversely affect our operating results.
A significant portion of our revenue depends on maintaining these relationships with network partners. Some network partners may compete with us for relationships with property owners and may decide to terminate our partnerships and instead develop competing retail products and services. Our network partner agreements are for defined periods and of varying durations. If our network partners terminate these agreements, or fail to renew these agreements, our ability to maintain property owner relationships could be diminished and our network reach could be reduced, which could result in a significant disruption of our business and adversely affect our operating results.
We depend on our relationships with our manufacturers for certain materials necessary to provide our services.
We depend on close relationships with our manufacturers for hardware and other materials necessary to provide our services to customers. Our ability to purchase at competitive prices and terms results from the volume of our purchases from these manufacturers. We purchase a substantial amount of the hardware necessary to provide our services from one hardware manufacturer. If this manufacturer were to experience shortages or financial difficulties or charge increased prices due to inflationary pressures or tariff uncertainty, and we are unable to purchase our desired volume of hardware on the same or better terms, or at all, our revenue and ability to service our customers could suffer considerably.
We believe that alternative sources exist for most of the materials we need to provide our services, and we would not expect the loss of any one manufacturer to have a material adverse effect on our business, financial condition, or results of operations. If any of our manufacturers do not perform adequately or otherwise fail to supply the materials we need to provide our services, our inability to replace the manufacturers in a timely manner and on acceptable terms could increase our costs and could cause shortages or interruptions that could have a material adverse effect on our business, financial condition, and results of operations.
Because we purchase hardware and other materials, which are subject to cost variations related to commodity costs, inflationary pressures or tariffs, if we cannot pass along cost increases, our profitability would be negatively impacted.
If we are unable to consistently win competitive request for proposal (“RFP”) processes, become a preferred or sole supplier for new-build projects, begin to increase our gross margins with newer customer relationships, or capitalize on the opportunities in our pipeline, our financial condition, results of operations and business may be adversely impacted.
Many property development projects in the U.S. with 100 units or more now mandate a Managed Services approach for their residential Internet services. These projects increasingly source Managed Services providers through a competitive RFP process or directly from a trusted provider who the property owner has previously worked with. We selectively enter RFP processes where we believe our experience, quality, service reputation and standard pricing and terms will make us competitive, and the property owner is an existing customer or a potential long-term multi-property customer. We may submit RFPs or other offers for our services at rates that would result in relatively lower gross margin in order to remain competitive and/or initiate a relationship with a potential long-term multi-property customer. Our goal is to become a preferred or sole provider for property owners’ new-build projects, where we win Managed Services projects “automatically” instead of through a RFP processes. We cannot provide any assurance that we will consistently win every RFP process we enter, become a preferred or sole supplier for new-build projects, begin to increase our gross margins with newer customer relationships, or capitalize on the opportunities in our pipeline. If we are unable to consistently win competitive RFP processes, become a preferred or sole supplier for new-build projects, begin to increase our gross margins with newer customer relationships, or capitalize on the opportunities in our pipeline, we may not be able to effectively grow our business, and our financial condition, results of operation and business may be adversely impacted.
Our performance may be impacted by general and regional economic volatility or an economic downturn.
An overall decline in economic activity could adversely impact our business and financial results. Economic uncertainty may reduce property owner spending as they make decisions on how to provide access to WiFi networks to consumers. Economic uncertainty could also result in changing preferences. Shifts in consumer spending and preferences could result in increased pressure from competitors or customers that may require us to increase promotional spending or reduce the prices of some of our services, which could then lower revenue and profitability. Accordingly, any change in property owner spending or consumer preferences related to access to WiFi networks could adversely affect the Company’s operating results.
Uncertain global economic conditions could adversely affect our business. Negative global and national economic trends, such as decreased consumer and business spending, high inflation, relatively higher interest rates for a prolonged period of time, tariffs, or the threat thereof, high unemployment levels and declining consumer and business confidence, pose challenges to our business and could result in declining revenue, profitability and cash flow. Additionally, we are subject to regional economic volatilities in the areas where we provide services. Unfavorable economic conditions may negatively affect demand for our services.
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If we lose key personnel, including members of our management team, or are unable to attract and retain personnel on a cost-effective basis, our business could be harmed.
Our performance is substantially dependent on the continued services and performance of our senior management and our highly qualified team of engineers, many of whom have numerous years of experience and specialized expertise in our business and technology. If we are not successful in hiring and retaining highly qualified engineers, we may not be able to extend or maintain our engineering and technological expertise and our future product and service development efforts could be adversely affected. Additionally, the process of attracting and retaining suitable replacements for any executive officers or any of our highly qualified engineers we lose in the future would result in transition costs and would divert the attention of other members of our senior management from our existing operations. Additionally, such a loss could be negatively perceived in the capital markets.
Our success depends, in large part, on the continued contributions of Dan McDonough, Jr., Barry Rubens, Taylor Jones and Sean Arnette. Although we will be a party to employment agreements with Messrs. Rubens, Jones and Arnette and a consulting agreement with Baron Hunter Group, LLC, pursuant to which services will be provided to us through Mr. McDonough, upon the closing date of this offering, we cannot assure you that each will remain with us for a specified period. In addition, our consulting agreement with Baron Hunter Group, LLC does not include a contractual restriction on Mr. McDonough’s ability to compete with us after the completion of the term of the consulting agreement. Although we have additional personnel that contribute to our business, the loss of any of these executives could harm our ability to implement our business strategy and respond to the rapidly changing market conditions in which we operate. Competitors who have lost key personnel have experienced reductions in service execution, network deployment and service quality. If we lose members of our senior management, this may significantly delay or prevent the achievement of our strategic objectives and adversely affect our operating results.
Our future success also depends on our ability to identify, attract, hire, train, retain and motivate highly skilled managerial, operations, business development and marketing personnel, especially personnel that has experience in our business and industry. We do not know whether we will be able to hire sufficient personnel to support our business strategy. The loss of the services of one or more of our key employees, or our inability to attract, retain and motivate qualified personnel could have a material adverse effect on our business, financial condition and operating results.
We may not successfully integrate assets from future acquisitions.
If we fail to accurately assess and successfully integrate any future acquisitions, we may not achieve the anticipated benefits, which could result in lower revenue, unanticipated operating expenses, and increased losses. Successful integration involves many challenges, including:
| · | the difficulty of integrating acquired operations and personnel with our existing operations; |
| · | the diversion of our management’s attention as a result of evaluating, negotiating and integrating acquisitions; |
| · | in some cases, our exposure to unforeseen liabilities of acquired companies; |
| · | the loss of key employees of an acquired business operation; and |
| · | the difficulty of developing, manufacturing, and marketing new products and services. |
In addition, an acquisition could adversely impact cash flows, operating results, and stockholder interests, for many reasons, including:
| · | contingent consideration payments; |
| · | the issuance of securities in connection with an acquisition or new business venture that dilutes or lessens the rights of our current stockholders; |
| · | charges to our income to reflect the impairment of acquired intangible assets, including goodwill; and |
| · | interest costs and debt service requirements for any debt incurred in connection with an acquisition or new business venture. |
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If we are not able to successfully integrate our acquisitions into our business, we could significantly increase our costs without realizing expected benefits, which would adversely affect our business, financial condition, and results of operations.
If the integration of any or all of our future acquisitions is not successful, it could have a material adverse impact on our operating results and stock price.
Our future business acquisition efforts may not be successful, which may limit our growth or adversely affect our results of operations, and financing of any future acquisitions could result in stockholder dilution and increase our outstanding indebtedness. If we identify an appropriate acquisition candidate, we may not be able to successfully negotiate terms or finance the acquisition. If economic downturns or other matters of national or global concern continue for an extensive period of time or recur, our ability to pursue and consummate potential acquisitions could be materially adversely affected. In addition, to successfully complete targeted acquisitions, we may issue additional equity securities that could dilute our stockholders’ ownership, or we may incur additional debt, which could increase our existing indebtedness. If we fail to successfully acquire businesses, our growth and results of operations could be adversely affected.
The costs of our operations may exceed our estimates due to factors outside of our control, such as labor shortages, tariffs or increasing commodity prices for components used in our networks, and we may be unable to pass those costs to our customers, which would negatively impact our financial results.
We depend on our employees and engineers to design, install and manage our solutions. We rely on access to competitive, local labor supply, including skilled and unskilled positions, to operate our business consistently and reliably. Increased immigration enforcement may reduce the number of available workers for projects, increase costs or lead to delays in projects. Any labor shortage, and any disruption in our ability to hire workers would negatively affect our operations and financial condition. If we experience a sustained labor shortage, we may need to increase wages to attract workers, which would increase our costs. Furthermore, if commodity prices for components that are used in our networks were to increase, including due to inflationary pressures or the impact of tariffs on prices, the availability of hardware used in our solutions and our ability to obtain supplies through our existing supply chain could be restricted and we may be unable to pass those increased costs on to our customers. If we are unable to do so, our gross margin would decline, and our financial results would be negatively impacted. To the extent our real estate developer customers are impacted by the same external and market factors as we are, their ability to commence new development projects will be similarly negatively impacted. If our customers are unable to continue developing new properties because of a slowdown in the new construction market or other external factors, our ability to grow our operating results and financial condition may be negatively impacted.
We may implement new lines of business or offer new services within existing lines of business, which may not meet the changing needs of property owners.
As an early-stage company, we may implement new lines of business at any time. There are substantial risks and uncertainties associated with these efforts, particularly in instances where the markets are not fully developed and the needs of property owners are unknown. In developing and marketing new lines of business and/or new services, we may invest significant time and resources. Initial timetables for the introduction and development of new lines of business and/or new products or services may not be achieved, and price and profitability targets may not prove feasible. We may not be successful in introducing new services or adapting to changing needs of property owners, industry trends or developments in technology, or those new products may not achieve market acceptance. As a result, we could lose business, be forced to price services on less advantageous terms to retain or attract customers, or be subject to cost increases. As a result, our business, financial condition or results of operations may be adversely affected.
Damage to our reputation could negatively impact our business, financial condition and results of operations.
Our reputation and the quality of our brand are critical to our business and success with existing and future customers, and will be critical to our success as we seek to develop new relationships with property owners. Any incident that erodes customer loyalty for our brand could significantly reduce its value and damage our business. We may be adversely affected by any negative publicity, regardless of its accuracy. Also, there has been a marked increase in the use of social media platforms and similar devices, including blogs, social media websites and other forms of internet-based communications that provide individuals with access to a broad audience of consumers and other interested persons. The availability of information on social media platforms is virtually immediate as is its impact. Information posted may be adverse to our interests or may be inaccurate, each of which may harm our performance, prospects or business. The harm may be immediate and may disseminate rapidly and broadly, without affording us an opportunity for redress or correction.
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If we are unable to protect our intellectual property rights, our business could suffer.
Our success depends, in part, on our ability to maintain as trade secrets our proprietary products, technologies and inventions and to maintain the confidentiality of our trade secrets and know-how, operate without infringing upon the proprietary rights of others and prevent others from infringing upon our business proprietary rights. Despite our efforts to protect our proprietary rights, it is possible that competitors or other unauthorized third parties may obtain, copy, use or disclose our technologies, inventions, processes or improvements. We cannot assure you that any of our intellectual property rights will be enforceable, will not be challenged, invalidated or circumvented, or will otherwise provide us with meaningful protection or any competitive advantage. Our competitors may also be able to develop similar technology independently, or through the disclosure of trade secrets, and we may not be able to detect the unauthorized use of our proprietary technology or take appropriate steps to prevent such use. We may need to enter into intellectual property license agreements in the future, and if we are unable to obtain these licenses, our business could be harmed. Any of the foregoing events would lead to increased competition and lower revenues or gross margins, which could adversely affect our operating results.
We rely on a license to use the tradename “Elauwit” and if our license is terminated, our business, financial condition and results of operations may be adversely impacted.
We depend on the tradename “Elauwit” and the goodwill associated therewith to operate our business. On August 20, 2024, we entered into a tradename license agreement (the “License Agreement”) with Mr. McDonough, pursuant to which Mr. McDonough granted us an exclusive license to use the tradename “Elauwit” and the service marks, domain names and goodwill associated therewith as long as we operate our business. If we are found to be in material breach of any of the terms of the License Agreement and do not cure the breach, Mr. McDonough may terminate the License Agreement and we would not be able to use the tradename “Elauwit” or the related service marks and domain names, and we would lose all goodwill associated with the Elauwit brand. If our license is terminated, our business, financial condition and results of operations may be adversely impacted.
Our business could be negatively impacted by cyber security threats, attacks and other disruptions.
We face advanced and persistent attacks on our information infrastructure where we manage and store various proprietary information and sensitive/confidential data relating to our operations. These attacks may include sophisticated malware (viruses, worms, and other malicious software programs) and phishing emails that attack our products or otherwise exploit any security vulnerabilities. These intrusions sometimes may be zero-day malware that are difficult to identify because they are not included in the signature set of commercially available antivirus scanning programs. Experienced computer programmers and hackers may be able to penetrate our network security and misappropriate or compromise our confidential information or that of our customers or other third-parties, create system disruptions, or cause shutdowns. Additionally, sophisticated software and applications that we produce or procure from third-parties may contain defects in design or manufacture, including “bugs” and other problems that could unexpectedly interfere with the operation of the information infrastructure. A disruption, infiltration or failure of our information infrastructure systems or any of our data centers as a result of software or hardware malfunctions, computer viruses, cyber-attacks, employee theft or misuse, power disruptions, natural disasters or accidents could cause breaches of data security, loss of critical data and performance delays, which in turn could adversely affect our business.
Risks Related to Our Industry
Our industry is competitive and if we do not compete successfully, we could lose market share, experience reduced revenue or suffer losses.
The market for commercial wireless infrastructure solutions is competitive and impacted by technological change, and we expect competition with our current and potential competitors to intensify in the future. Some of our competitors have taken steps or may decide to more aggressively compete against us, particularly in the market for Managed Services and Network-as-a-Service solutions.
Our competitors, many of whom are also our partners, include a variety of telecom operators, network operators, and tower companies, including AT&T, Spectrum, Comcast, Pavlov Media, Single Digits, WhiteSky and Aerwave, and local operators. These and other competitors may compete directly with us to provide internet, Managed Services or Network-as-a-Service to our target customers. Many of our competitors are substantially larger than we are and have substantially longer operating histories. Competitors who do not currently offer Managed Services of Network-as-a-Service solutions may have a competitive advantage if they enter our market due to their expanded capabilities. We may not be able to fund or invest in certain areas of our business to the same degree as our competitors. Many have substantially greater marketing budgets and other financial and personnel resources necessary to build networks for customers. Some also have greater name and brand recognition and a larger base of customers than we have. In addition, our competitors may provide services that we generally do not. Users that desire these services may choose to obtain them from a competitor rather than from us.
Competition could increase our selling and marketing expenses and related customer acquisition costs. We may not have the financial resources, technical expertise or marketing and support capabilities to continue to compete successfully. A failure to respond to established and new competitors may adversely impact our business and operating results.
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Construction risks to our customers’ development projects could affect our profitability.
We intend to continue to pursue opportunities to provide our Managed Services and Network-as-a-Service solutions to multifamily properties as part of our business strategy. Property development often includes long planning and development timelines, subjecting the projects to changes in market conditions. It can involve complex and costly activities, including significant environmental remediation or construction work. We may experience an increase in costs due to general disruptions that affect our customers’ cost of labor and/or materials, such as supply chain disruptions, trade disputes, tariffs, immigration issues, labor unrest, geopolitical conflicts or other factors that create inflationary pressures. Our customers may abandon property development opportunities that they have already begun to explore for a number of reasons, and as a result, we may fail to recover costs already incurred in exploring the opportunity to provide our solutions. Our customers may also be unable to obtain, or experience delays in obtaining, necessary zoning, occupancy, or other required governmental or third-party permits and authorizations, which could cause delays in our ability to monetize our solutions in a given market. These and other risks inherent in development projects could result in increased costs to our customers or the delay or abandonment of opportunities by our customers, which may affect our profitability.
Risks Related to this Offering and Ownership of our Securities
The price of the shares of our common stock and other terms of this offering have been determined by us along with our underwriter.
If you purchase our shares of common stock in this offering, you will pay a price that was not established in a competitive market because our common stock has not been listed on any stock exchange or other public trading market. Rather, you will pay a price that was determined by us along with our underwriters. The offering price for our shares of common stock may bear no relationship to our assets, book value, historical results of operations or any other established criterion of value. The trading price, if any, of our common stock that may prevail in any market that may develop in the future, for which there can be no assurance, may be higher or lower than the price you paid for our shares of common stock.
Investors in this offering will experience immediate and substantial dilution in the book value of their investment.
The public offering price will be substantially higher than the net tangible book value per share of our outstanding shares of common stock. As a result, investors in this offering will incur immediate dilution of $8.77 per share based on the assumed public offering price of $10.00 per share. Investors in this offering will pay a price per share that substantially exceeds the book value of our assets after subtracting our liabilities. See “Dilution” for a more complete description of how the value of your investment will be diluted upon the completion of this offering.
Our management will have broad discretion over the use of the proceeds we receive in this offering and might not apply the proceeds in ways that increase the value of your investment.
Our management will have broad discretion over the use of our net proceeds from this offering, and you will be relying on the judgment of our management regarding the application of these proceeds. Our management might not apply our net proceeds in ways that ultimately increase the value of your investment. We expect to use the net proceeds from this offering for debt repayment, Network-as-a-Service project deployments, sales and marketing organizational development, payment of deferred compensation, working capital and general corporate purposes, including investments in, or acquisitions of, complementary businesses, services or technologies. Our management might not be able to yield a significant return, if any, on any investment of these net proceeds. You will not have the opportunity to influence our decisions on how to use our net proceeds from this offering.
A majority of the voting power of our common stock is consolidated among our executive officers and directors, which may prevent you or any new investors from influencing significant corporate decisions.
Our executive officers and directors own shares representing approximately 71.6% of the voting power of our common stock. After this offering, assuming 1,500,000 shares of common stock are sold in this offering, our executive officers and directors will own shares representing approximately 55.1% of the voting power of our common stock. As a result, our executive officers and directors may have the ability to control the outcome of matters requiring stockholder approval, including the election of directors and approval of significant corporate transactions, such as a merger, other sale of our Company or our assets or significant acquisitions. This concentration of voting control will limit the ability of other stockholders to influence corporate matters and may cause us to make strategic decisions that could involve risks to you or that may not be aligned with your interests. Our directors and executive officers owe a fiduciary duty to our stockholders and are legally obligated to act in good faith and in a manner they reasonably believe to be in the best interests of our stockholders. As stockholders, the these individuals are entitled to vote their shares in their own interests, which may not always be in the interests of our stockholders generally. The concentration of voting power held by our executive officers and directors may adversely affect the market price of our common stock.
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We are an “emerging growth company,” as defined in the JOBS Act, and a “smaller reporting company” within the meaning of the Securities Act of 1933, as amended (the “Securities Act”), and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies or smaller reporting companies will make our common stock less attractive to investors.
We are an “emerging growth company,” as defined in the JOBS Act. For as long as we continue to be an emerging growth company, we are permitted to, and intend to, take advantage of exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies, including (1) not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, (2) reduced disclosure obligations regarding executive compensation in this prospectus and our periodic reports and proxy statements, (3) exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved, and (4) an extended transition period for complying with new or revised accounting standards applicable to public companies. Additionally, we may take advantage of certain reduced disclosure obligations as a “smaller reporting company” as defined in Item 10(f)(1) of Regulation S-K. To the extent we take advantage of such reduced disclosure obligations, it may also make comparison of our financial statements with other public companies difficult or impossible.
After we are no longer an “emerging growth company,” we expect to incur additional management time and cost to comply with the more stringent reporting requirements applicable to companies that are deemed accelerated filers or large accelerated filers, including complying with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act. We cannot predict or estimate the amount of additional costs we may incur or the timing of such costs.
We have not and do not expect to declare any dividends to our stockholders in the foreseeable future.
We have not and do not anticipate declaring any cash dividends to holders of our common stock in the foreseeable future. Consequently, investors may need to rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on their investment. Investors seeking cash dividends should not purchase our common stock.
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We may seek to raise additional funds, finance acquisitions or develop strategic relationships by issuing securities that would dilute your ownership and may negatively impact the trading price of our shares.
Any additional financing that we secure may require the granting of rights, preferences or privileges senior to, or pari passu with, those of our common stock. Any issuances by us of equity securities may be at or below the prevailing market price of our common stock and may have a dilutive impact on your ownership interest, which could cause the market price of our common stock to decline. We may also raise additional funds through the incurrence of debt or the issuance or sale of other securities or instruments senior to our shares of common stock, which may be highly dilutive. The holders of any securities or instruments we may issue may have rights superior to the rights of our stockholders. If we experience dilution from the issuance of additional securities and we grant superior rights to new securities over holders of our common stock, it may negatively impact the trading price of our shares and you may lose all or part of your investment.
Shares eligible for future sale may adversely affect the market price of our common stock if the shares are successfully listed on Nasdaq or other stock markets, as the future sale of a substantial number of outstanding shares in the public marketplace could reduce the price of our common stock.
The market price of our shares could decline as a result of sales of substantial amounts of our shares in the public market, or the perception that these sales could occur. In addition, these factors could make it more difficult for us to raise funds through future offerings of our common stock. An aggregate of 5,000,000 shares of common stock will be outstanding before the consummation of this offering all of which, except those held by management and holders subject to lock-up agreements, are or will be freely tradable immediately upon effectiveness of this registration statement. All of the shares sold in the offering will be freely transferable without restriction or further registration under the Securities Act. The remaining shares will be “restricted securities” as defined in Rule 144. These shares may be sold without registration under the Securities Act to the extent permitted by Rule 144 or other exemptions under the Securities Act. See “Shares Eligible for Future Sale.”
A possible “short squeeze” due to a sudden increase in demand of our shares that largely exceeds supply may lead to price volatility in our shares of common stock.
Following this offering, investors may purchase our common stock to hedge existing exposure in our common stock or to speculate on the price of our common stock. Speculation on the price of our shares may involve long and short exposures. To the extent aggregate short exposure exceeds the number of shares of our common stock available for purchase in the open market, investors with short exposure may have to pay a premium to repurchase our common stock for delivery to lenders of our shares. Those repurchases may in turn, dramatically increase the price of our shares of common stock until investors with short exposure are able to purchase additional common shares to cover their short position. This is often referred to as a “short squeeze.” A short squeeze could lead to volatile price movements in our common stock that are not directly correlated to the performance or prospects of our company and once investors purchase the common stock necessary to cover their short position the price of our common stock may decline.
Provisions in our amended and restated certificate of incorporation (“certificate of incorporation”) and amended and restated bylaws (“bylaws”) could discourage a change in control, or an acquisition of us by a third party, even if the acquisition would be favorable to you, thereby adversely affecting existing stockholders.
Our certificate of incorporation and bylaws contain provisions that may have the effect of making more difficult or delaying attempts by others to obtain control of our Company, even when these attempts may be in the best interests of our stockholders. For example, our certificate of incorporation (i) authorizes our Board, without stockholder approval, to issue one or more series of preferred stock, which could have voting and conversion rights that adversely affect or dilute the voting power of the holders of our common stock; (ii) provides for a classified board structure in which only one-third of our directors will be elected at any annual meeting of stockholders and directors may only be removed for cause; (iii) does not provide for cumulative voting; (iv) designates the Court of Chancery of the State of Delaware as the exclusive forum for certain litigation that may be initiated by our stockholders; (v) authorizes the Board to issue authorized but unissued shares of common stock without stockholder approval; and (vi) provides for limitations on the liability of, and the provisions of indemnification to, our officers and directors. Our bylaws also limit the ability of stockholders to call special meetings of the Board and require stockholders to provide us advance notice of any nominations of candidates for election to our Board or for proposing matters that can be acted upon by stockholders at meetings of stockholders. These provisions and others that could be adopted in the future could deter unsolicited takeovers or delay or prevent changes in our control or management, including transactions in which stockholders might otherwise receive a premium for their shares over then-current market prices. These provisions may also limit the ability of stockholders to approve transactions that they may deem to be in their best interests.
Our certificate of incorporation designates the Court of Chancery of the State of Delaware as the exclusive forum for certain litigation that may be initiated by our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or increase the stockholder’s costs in bringing such a claim.
Our certificate of incorporation specifies that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of fiduciary duty owed by any of our directors, officers, or other employee to us or to our stockholders, (iii) any action asserting a claim against us arising pursuant to any provision of the Delaware General Corporation Law, the certificate of incorporation or the bylaws or (iv) any action asserting a claim governed by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in our securities shall be deemed to have notice of and to have consented to the provisions of our certificate of incorporation described above. However, this provision does not apply to suits brought to enforce a duty or liability created by the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any other claim for which the federal courts have exclusive jurisdiction. In addition, the Court of Chancery of the State of Delaware and the federal district courts will have concurrent jurisdiction for the resolution of any suit brought to enforce any duty or liability created by the Securities Act.
This provision may have the effect of discouraging lawsuits against our directors, officers, employees and agents as it may limit any stockholder’s ability to bring a claim in a judicial forum that the stockholder finds favorable for disputes with us or our directors, officers, employees or agents or increase the stockholder’s costs in bringing such a claim. The enforceability of similar choice of forum provisions in other companies’ certificates of incorporation has been challenged in legal proceedings, and it is possible that, in connection with any applicable action brought against us, a court could find the choice of forum provisions contained in our certificate of incorporation to be inapplicable or unenforceable in such action. If a court were to find the choice of forum provision contained in our certificate of incorporation to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could adversely affect our business, financial condition or results of operations.
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General Risk Factors
Litigation may adversely affect our business, financial condition and results of operations.
From time to time in the normal course of our business operations, we may become subject to litigation involving intellectual property, data privacy and security, consumer protection, service disruption or failure, and commercial disputes and other matters that may negatively affect our operating results if changes to our business operations are required. The cost to defend such litigation may be significant and may require a diversion of our resources. There also may be adverse publicity associated with litigation that could negatively affect customer perception of our business, regardless of whether the allegations are valid or whether we are ultimately found liable. As a result, litigation may adversely affect our business, financial condition and results of operations. In addition, insurance may not cover existing or future claims, be sufficient to fully compensate us for one or more of such claims, or continue to be available on terms acceptable to us. A claim brought against us that is uninsured or underinsured could result in unanticipated costs, thereby adversely affecting our results of operations and resulting in a reduction in the trading price of our stock.
An active, liquid and orderly trading market for our common stock may not develop, the price of our stock may be volatile, and you could lose all or part of your investment.
The trading price of our common stock may be highly volatile and could be subject to wide fluctuations in response to various factors, some of which are beyond our control. Our stock price could be subject to wide fluctuations in response to a variety of factors, which include:
| · | whether we achieve our anticipated corporate objectives; |
| · | actual or anticipated fluctuations in our quarterly or annual operating results; |
| · | changes in our financial or operational estimates; |
| · | our ability to implement our operational plans; |
| · | termination of the lock-up agreement or other restrictions on the ability of our stockholders to sell shares after this offering; |
| · | changes in the economic performance or market valuations of companies similar to ours; and |
| · | general economic or political conditions in the United States or elsewhere. |
In addition, the stock market has experienced extreme price and volume fluctuations that have often been unrelated or disproportionate to the operating performance of those companies. Broad market and industry factors may seriously affect the market price of companies’ stock, including ours, regardless of actual operating performance. These fluctuations may be even more pronounced in the trading market for our stock shortly following this offering. In addition, in the past, following periods of volatility in the overall market and the market price of a particular company’s securities, securities class action litigation has often been instituted against these companies. This litigation, if instituted against us, could result in substantial costs and a diversion of our management’s attention and resources.
Our failure to meet the continuing listing requirements of Nasdaq could result in a delisting of our securities.
If we fail to satisfy the continuing listing requirements of Nasdaq, such as the corporate governance, stockholders’ equity or minimum closing bid price requirements, Nasdaq may take steps to delist our common stock. Such a delisting would likely have a negative effect on the price of our common stock and would impair your ability to sell or purchase our common stock when you wish to do so. In the event of a delisting, we would likely take actions to restore our compliance with Nasdaq’s listing requirements, but we can provide no assurance that any such action taken by us would allow our common stock to become listed again, stabilize the market price or improve the liquidity of our securities, prevent our common stock from dropping below the Nasdaq minimum bid price requirement or prevent future non-compliance with Nasdaq’s listing requirements.
We incur increased costs and demands upon management as a result of complying with the laws and regulations affecting public companies, which could adversely affect our operating results.
As a public company, we incur significant legal, accounting and other expenses that we did not incur as a private company, including costs associated with public company reporting and corporate governance requirements. These requirements include compliance with Section 404 and other provisions of the Sarbanes-Oxley Act, as well as rules implemented by the SEC and Nasdaq. In addition, our management team also has to adapt to the requirements of being a public company. We expect complying with these rules and regulations will substantially increase our legal and financial compliance costs and to make some activities more time-consuming and costly.
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The increased costs associated with operating as a public company will decrease our net income or increase our net loss, and may require us to reduce costs in other areas of our business or increase the prices of our services. Additionally, if these requirements divert our management’s attention from other business concerns, they could have a material adverse effect on our business, financial condition and operating results.
As a public company, we also expect that it may be more difficult and more expensive for us to obtain director and officer liability insurance, and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be more difficult for us to attract and retain qualified individuals to serve on our board of directors or as our executive officers.
As a public company, we are obligated to develop and maintain proper and effective internal control over financial reporting. We may not complete our analysis of our internal control over financial reporting in a timely manner, or these internal controls may not be determined to be effective, which may adversely affect investor confidence in our company and, as a result, the value of our common stock.
We will be required, pursuant to Section 404 of the Sarbanes-Oxley Act, to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting for the first fiscal year beginning after the effective date of the initial public offering (“IPO”). This assessment will need to include disclosure of any material weaknesses identified by our management in our internal control over financial reporting.
We are in the early stages of the costly and challenging process of compiling the system and processing documentation necessary to perform the evaluation needed to comply with Section 404. We may not be able to remediate future material weaknesses, or to complete our evaluation, testing and any required remediation in a timely fashion. During the evaluation and testing process, if we identify one or more material weaknesses in our internal control over financial reporting, we will be unable to assert that our internal controls are effective. If we are unable to assert that our internal control over financial reporting is effective, we could lose investor confidence in the accuracy and completeness of our financial reports, which would have a material adverse effect on the price of our common stock.
If our shares of common stock become subject to the penny stock rules, it would become more difficult to trade our shares.
The SEC has adopted rules that regulate broker-dealer practices in connection with transactions in penny stocks. Penny stocks are generally equity securities with a price of less than $5.00, other than securities registered on certain national securities exchanges or authorized for quotation on certain automated quotation systems, provided that current price and volume information with respect to transactions in such securities is provided by the exchange or system. If we do not retain a listing on Nasdaq and if the price of our common stock is less than $5.00, our common stock will be deemed a penny stock. The penny stock rules require a broker-dealer, before a transaction in a penny stock not otherwise exempt from those rules, to deliver a standardized risk disclosure document containing specified information. In addition, the penny stock rules require that before effecting any transaction in a penny stock not otherwise exempt from those rules, a broker-dealer must make a special written determination that the penny stock is a suitable investment for the purchaser and receive (i) the purchaser’s written acknowledgment of the receipt of a risk disclosure statement; (ii) a written agreement to transactions involving penny stocks; and (iii) a signed and dated copy of a written suitability statement. These disclosure requirements may have the effect of reducing the trading activity in the secondary market for our common stock, and therefore stockholders may have difficulty selling their shares.
If we were to dissolve, the holders of our securities may lose all or substantial amounts of their investments.
If we were to dissolve as a corporation, as part of ceasing to do business or otherwise, we may be required to pay all amounts owed to any creditors before distributing any assets to the investors. There is a risk that in the event of such a dissolution, there will be insufficient funds to repay amounts owed to holders of any of our indebtedness and insufficient assets to distribute to our other investors, in which case investors could lose their entire investment.
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If securities or industry analysts do not publish or cease publishing research or reports about us, our business or our market, or if they change their recommendations regarding our stock adversely, our stock price and trading volume could decline.
The trading market for our common stock will be influenced by the research and reports that industry or securities analysts may publish about us, our business, our market or our competitors. If any of the analysts who may cover us change their recommendation regarding our stock adversely, or provide more favorable relative recommendations about our competitors, our stock price would likely decline. If any analyst who may cover us were to cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline.
In making your investment decision, you should understand that we and the underwriters have not authorized any other party to provide you with information concerning us or this offering.
You should carefully evaluate all of the information in this prospectus before investing in our company. We may receive media coverage regarding our company, including coverage that is not directly attributable to statements made by our officers, that incorrectly reports on statements made by our officers or employees, or that is misleading as a result of omitting information provided by us, our officers or employees. We and the underwriters have not authorized any other party to provide you with information concerning us or this offering, and you should not rely on this information in making an investment decision.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the sections entitled “Prospectus Summary,” “Risk Factors,” “Use of Proceeds,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and “Business” contains forward-looking statements. All statements other than statements of historical facts contained in this prospectus, including statements regarding our future results of operations and financial position, business strategy and plans and our objectives for future operations, are forward-looking statements. The words “aim,” “anticipate,” “believe,” “can,” “continue,” “could,” “estimate,” “expect,” “goal,” “intend,” “may,” “might,” “outlook,” “seek,” “strive,” “will,” “would” and similar expressions are intended to identify forward-looking statements. These forward-looking statements include statements relating to:
| · | our history of losses and our ability to continue as a going concern; |
| · | our ability to obtain additional financing and fund our operations; |
| · | our market opportunity; |
| · | the effects of increased competition and innovations by new and existing competitors in our market and our ability to adapt to and anticipate changes in technology; |
| · | our ability to maintain and grow relationships with property owners and network partners and increase our customer base; |
| · | our ability to consistently win competitive RFP processes, become a preferred or sole supplier for new-build projects, increase our gross margins with newer customer relationships, and capitalize on the opportunities in our pipeline; | |
| · | our reliance on manufacturers to obtain the materials necessary to provide our services; |
| · | the potential effects of delays or disruptions in property development; |
| · | the future growth of the network services industry and demands of our customers; |
| · | our ability to pay our debts as they come due; |
| · | our ability to grow the business and effectively manage or sustain our growth; |
| · | our expected use of proceeds from this offering; |
| · | future revenue, hiring plans, expenses and capital expenditures; |
| · | our ability to comply with new or modified laws and regulations that currently apply or become applicable to our business or the business of our customers; |
| · | our ability to recruit and retain key employees and management personnel; |
| · | our financial performance and capital requirements following this offering; |
| · | our ability to maintain, protect, and enhance our intellectual property; |
| · | the potential lack of liquidity and trading of our securities; and |
| · | the lack of an established market for our securities. |
We caution you that the foregoing list may not contain all of the forward-looking statements made in this prospectus. We have based these forward-looking statements largely on our current expectations about future events and financial trends that we believe may affect our financial condition, results of operations, business strategy, short term and long-term business operations and objectives, and financial needs. These forward-looking statements are subject to a number of risks, uncertainties and assumptions, including those described in “Risk Factors.” Moreover, we operate in a very competitive and rapidly changing environment. New risks emerge from time to time. It is not possible for our management to predict all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements we may make. In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances discussed in this prospectus may not occur and actual results could differ materially and adversely from those anticipated or implied in the forward-looking statements.
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You should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance or events and circumstances reflected in the forward-looking statements will be achieved or occur. We undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus to conform these statements to actual results or to changes in our expectations, except as required by law.
You should read this prospectus and the documents that we reference in this prospectus and have filed with the SEC as exhibits to the registration statement of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance and events and circumstances may be materially different from what we expect.
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We estimate that the net proceeds from this offering will be approximately $13,050,000 after deducting estimated underwriting discounts and estimated offering expenses payable by us. If the over-allotment option is exercised in full, we estimate that our net proceeds will be approximately $15,142,500. We intend to use the net proceeds from this offering for the following purposes:
| Proceeds: | ||||
| Gross Proceeds | $ | 15,000,000 | ||
| Discounts | 1,050,000 | |||
| Estimated Fees and Expenses | 900,000 | |||
| Net Proceeds | $ | 13,050,000 | ||
| Uses: | ||||
| Debt Repayment(1) | $ | 2,046,297 | ||
| Network-as-a Service Project Deployments(2) | 8,086,987 | |||
| Sales and Marketing Organizational Development(3) | 2,000,000 | |||
| Payment of Deferred Compensation(4) | 416,716 | |||
| Working Capital and General Corporate Purposes(5) | 500,000 | |||
| Total Uses | $ | 13,050,000 |
| (1) | Includes repayment of all or a portion of the outstanding balance under a fixed rate loan agreement (the “Fixed Rate Loan Agreement”) with Endurance Opportunities I LLC (“Endurance Opportunities”) and may include repayment of all or a portion of the balances of our outstanding promissory notes. See “Certain Relationships and Related Party Transactions” for additional information. |
| (2) | Includes funding for infrastructure and technology initiatives to support service expansion. |
| (3) | Includes investments in team growth, customer acquisition and brand awareness. |
| (4) | If we complete this offering, includes the repayment of all arrearages owed pursuant to a deferred compensation agreement, by and between the Company, Daniel McDonough, Jr., Barry Rubens, Taylor Jones and Sean Arnette, dated August 20, 2024 (the “Deferred Compensation Agreement”). |
| (5) | May include a payment of up to $2,000,000 under a put-call agreement with Baron Hunter Group, LLC and Steele Creek Partners, LLC if either entity exercises its right to sell shares to the Company. See “Certain Relationships and Related Party Transactions” for additional information. |
A $1.00 increase (decrease) in the assumed public offering price of $10.00 per share, would increase (decrease) the net proceeds to us from this offering by approximately $1.4 million, assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the estimated underwriting discounts and commissions.
The actual allocation of proceeds realized from this offering will depend upon our operating revenue, cash position, and working capital requirements. We cannot currently allocate specific percentages of the net proceeds to us from this offering that we may use for these purposes. Therefore, as of the date of this prospectus, we cannot specify with certainty all of the particular uses for the net proceeds to be received upon the completion of this offering. Accordingly, we will have broad discretion in the application of the net proceeds, and investors will be relying on our judgment regarding the application of the proceeds of this offering. Pending our use of the net proceeds from this offering, we intend to invest the net proceeds in a variety of capital preservation investments, including short-term, investment-grade, interest-bearing instruments and U.S. government securities.
We have never paid cash dividends on any of our capital stock, and we do not anticipate paying any cash dividends on our common stock in the foreseeable future. We intend to retain all available funds and any future earnings to fund the development and expansion of our business. Any future determination to pay dividends will be at the discretion of our Board and will depend upon a number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors our Board deems relevant. Therefore, we cannot assure you that we will pay any cash dividends or other distributions to holders of our common stock, or as to the amount of any such cash dividends or other distributions.
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The following table sets forth our capitalization as of June 30, 2025 as follows:
| · | on an actual basis; |
| · | on a pro forma basis to reflect (i) the conversion of Class B common stock into Class A common stock, and the reclassification of Class A common stock to common stock; and (ii) the conversion of the SAFE into shares of our common stock upon the consummation of this offering; and |
| · | on a pro forma, as adjusted, basis to reflect the issuance and sale by us of $ in shares of common stock in this offering at the assumed public offering price of $ per share, after deducting underwriting discounts and commissions and estimated offering expenses payable by us and the receipt by us of the proceeds of such sale. |
The pro forma and pro forma as adjusted information below is illustrative only, and our capitalization following the closing of this offering will change based on the actual initial public offering price and other terms of this offering determined at pricing. You should read this table in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the financial statements and related notes included elsewhere in this prospectus.
| As of June 30, 2025 | ||||||||||||
| (In thousands) | Unaudited, Actual | Unaudited, Pro Forma(1) | Unaudited, Pro Forma As Adjusted(1) | |||||||||
| Cash | $ | 525 | $ | 525 | $ | 13,575 | ||||||
| Related party debt, current | 1,451 | 1,451 | 1,451 | |||||||||
| Related party debt, net of current | 2,627 | 2,627 | 2,627 | |||||||||
| SAFE liability | 1,000 | - | - | |||||||||
| Stockholders’ Equity: | ||||||||||||
| Class A common stock, $0.0001 par value; 7,000,000 shares authorized; 2,522,950 shares outstanding as of June 30, 2025; 0 shares outstanding on a pro forma basis; and 0 shares outstanding on a pro forma as adjusted basis | - | - | - | |||||||||
| Class B common stock, $0.0001 par value; 3,000,000 shares authorized; 2,477,050 shares issued and outstanding as of June 30, 2025; 0 shares outstanding on a pro forma basis; and 0 shares outstanding on a pro forma as adjusted basis | - | - | - | |||||||||
| Common stock, $0.0001 par value; 0 shares authorized; 0 shares outstanding as of June 30, 2025; 5,117,647 shares outstanding on a pro forma basis; and 6,617,647 shares outstanding on a pro forma as adjusted basis | - | - | - | |||||||||
| Additional paid-in capital | 5,859 | 6,859 | 19,909 | |||||||||
| Accumulated deficit | (10,744 | ) | (10,744 | ) | (10,744 | ) | ||||||
| Total stockholders’ equity | (4,885 | ) | (3,885 | ) | 9,165 | |||||||
| Total capitalization | $ | 193 | 193 | $ | 13,243 | |||||||
| (1) | The pro forma and pro forma as adjusted information is illustrative only and following the completion of this offering will be adjusted based on the actual public offering price and other terms of this offering determined at pricing. |
The number of shares of our common stock to be outstanding following this offering is based on 5,000,000 outstanding shares of capital stock as of June 30, 2025 and excludes:
| · | shares of our common stock issuable upon the exercise of the Representative’s Warrants to be issued in this offering. |
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If you invest in this offering, your ownership interest will be immediately diluted to the extent of the difference between the public offering price per share of common stock and the pro forma as adjusted net tangible book value per share after giving effect to this offering. The information below is illustrative only. Our dilution following this offering will depend upon the number of shares of our common stock sold and the market price at which they are sold. You should read this section in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the financial statements and related notes included elsewhere in this prospectus.
Our net tangible book value (deficit) as of June 30, 2025 was $(4.9) million, or approximately $(0.98) per share of common stock. Net tangible book value per share represents our total tangible assets less total liabilities, divided by the number of shares of common stock outstanding.
Our pro forma net tangible book value (deficit) as of June 30, 2025 which reflects the pro forma adjustments described in “Capitalization” was $(4.9) million, or approximately $(0.95) per share of common stock.
The pro forma as adjusted net tangible book value dilution per share of common stock to new investors represents the difference between the amount per share of common stock paid by purchasers in the offering and the pro forma net tangible book value per share of common stock immediately after completion of the offering.
After giving effect to the pro forma adjustments described in the “Capitalization” section and the offering and sale of our common stock at an assumed public offering price of $10.00 per share, and after deduction of underwriting discounts and commissions from gross proceeds raised in the offering and estimated offering expenses payable by us, on a pro forma as adjusted basis, our net tangible book value as of June 30, 2025 would have been approximately $8.2 million, or $1.23 per share of common stock. This represents an immediate increase in the pro forma as adjusted net tangible book value of approximately $2.19 per share to our existing stockholders and an immediate decrease in net tangible book value of $8.77 per share of common stock to new investors.
| Assumed offering price per share of common stock | $ | 10.00 | ||||||
| Actual net tangible book value per share of common stock before this offering(1) | $ | (0.98 | ) | |||||
| Pro forma adjustments(2) | 0.02 | |||||||
| Pro forma net tangible book value per share | (0.95 | ) | ||||||
| Increase (decrease) in net tangible book value per share of common stock attributable to new investors(3) | $ | 2.19 | ||||||
| Pro forma net tangible book value per share of common stock after this offering(4) | $ | 1.23 | ||||||
| Immediate dilution in net tangible book value per share of common stock to new investors | $ | 8.77 |
| (1) | Determined by dividing (i) net tangible book value (total assets less intangible assets) less total liabilities by (ii) the total number of shares of common stock issued and outstanding prior to the offering. |
| (2) | Represents the expected conversion of the SAFE into shares of common stock. |
| (3) | Represents the difference between (i) pro forma as adjusted net tangible book value per share of common stock after this offering and (ii) net tangible book value per share as of June 30, 2025. |
| (4) | Determined by dividing (i) pro forma as adjusted net tangible book value, which is our pro forma net tangible book value plus the cash proceeds of this offering, after deducting the estimated offering expenses payable by us, by (ii) the total number of shares of common stock to be outstanding following this offering. |
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Each $1.00 increase (decrease) in the assumed initial public offering price of $10.00 per share, which is the midpoint of the estimated offering price range set forth on the cover page of this prospectus, would increase (decrease) the pro forma as adjusted net tangible book value per share after this offering by $0.21 per share and the dilution to new investors purchasing common stock in this offering by $0.79 per share, assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
If the underwriters exercise their option in full to purchase an additional 225,000 shares of common stock in this offering, the pro forma as adjusted net tangible book value per share after the offering would be $1.50 per share, the increase in the net tangible book value per share to existing stockholders would be $2.45 per share and the dilution to new investors purchasing our common stock in this offering would be $8.50 per share.
The number of shares of our common stock to be outstanding following this offering is based on 5,000,000 outstanding shares of capital stock as of June 30, 2025 and excludes:
| · | shares of our common stock issuable upon the exercise of the Representative’s Warrants to be issued in this offering. |
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion and analysis of our financial condition and results of our operations together with our consolidated financial statements and the notes thereto appearing elsewhere in this prospectus. This discussion contains forward-looking statements reflecting our current expectations, whose actual outcomes involve risks and uncertainties. Actual results and the timing of events may differ materially from those stated in or implied by these forward-looking statements due to a number of factors, including those discussed in the sections entitled “Risk Factors,” “Cautionary Note Regarding Forward-Looking Statements,” and elsewhere in this prospectus.
Business Overview
We are a customer-centric service provider of broadband Internet networks for the multifamily and student housing property sectors across the United States. Our managed WiFi networks provide property-wide Internet access for residents, guests, property management staff, and third-party technology vendors at each property we serve. We provide our service offering wholesale to REITs, property ownership groups, and property management companies, engaged in our target real estate sectors, who then offer the service to their residents.
In building out a managed WiFi network, we provide network design, project management, network engineering, network installation, and quality control. As part of our service delivery model, we provide dedicated bandwidth, 24/7 network monitoring, network maintenance, and resident support.
Our mission is to be the leading experience provider of Internet access solutions. For our property ownership clients, this means clear communication and timely execution. For the end users of our service, residents and their guests, this means dedication to the objective of providing an excellent resident experience. We differentiate ourselves in the area of resident experience by building reliable networks, responding to service requests quickly, establishing support protocols that lead to industry-leading first touch resolution metrics, and communicating effectively with key stakeholders throughout.
While anyone can claim top tier operational capabilities, we have grown quickly through word-of-mouth, as a trusted partner for real estate development and ownership groups. We have an excellent track record of repeat business from parties we contract with. Internet access has become a utility, but unlike electricity and water, reliability is not something property owners can take for granted. Our performance has created the opportunity to expand within ownership portfolios and is a key aspect of our growth strategy moving forward.
We closely monitor the challenges and needs of development and ownership groups in the real estate sectors in focus. A continued theme has been the fragmented market of service providers in the space in which we operate and issues stemming out of such. We view these issues to be a large opportunity for our business and an indication that consolidation is likely in the near future. We aim to be a driver of consolidation.
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Results of Operations
Comparison of Results of Operations for the six months ended June 30, 2025 (the “six months”) compared to the six months ended June 30, 2024 (the “prior six-month period”).
Key results for the six months include:
| · | Topline revenue growth of 254% for the six months. The robust pace of network construction activities and activations ramping throughout 2024 continued into the six months, driving strong topline growth. |
| · | Gross margin of 25.5% primarily from network construction activities in line with expectations. Over time, management expects our gross margin to increase dramatically, as higher margin recurring service fees constitute a growing share of revenues. |
| · | Operating expenses for the six months increased by 61.1% over the prior six-month period, primarily driven by continued growth in our project management and network engineering functions, as well as expenses associated with the preparation for being a publicly traded company. |
| · | Backlog as of June 30, 2025 was $35.9 million, compared to $23.3 million as of June 30, 2024. |
| · | Contracted units as of June 30, 2025 were 32,094, compared to 17,436 as of June 30, 2024. |
Revenue
Revenue for the six months increased $8.4 million, or 254%, to $11.7 million compared to $3.3 million for the prior six-month period. This increase was primarily due to increased network construction activities and the activation of networks, driving the ramp in our recurring service revenues.
Cost of Revenue
Cost of revenue increased to $8.7 million for the six months, compared to $2.6 million for the prior six-month period. The increase in cost of revenue was due to increased network construction activities.
Gross Profit
Gross profit increased 345% to $3.0 million for the six months compared to $0.7 million for the prior six-month period. Our gross margin for the six months increased to 25.5% compared to 20.3% for the prior six-month period, primarily due to increased network activations and greater recurring services revenues in which we realize higher gross margin levels than with our network construction activities. The increase in gross profit was driven by higher revenue levels and gross margin expansion.
Operating Expenses
Operating expenses were $3.2 million for the six months compared to $2.0 million for the prior six-month period. The increase was driven by continued growth in our project management and network engineering functions, as well as expenses associated with the preparation for being a publicly traded company.
Operating Loss
Higher gross profit from revenue increases paired with gross margin expansion resulted in a decrease in operating loss of $1.1 million to $0.2 million for the six months compared to $1.3 million for the prior six-month period.
Interest Expense
Interest expense was $0.2 million for the six months compared to $0.1 million for the prior six-month period. The increase was primarily driven by increased network financing activities and borrowings for working capital. See Note 6, “Related Party Debt,” of the unaudited consolidated financial statements for the six months included in this prospectus (the “six months financials”) for additional information.
Net Loss
Net loss decreased $1.0 million to $0.4 million for six months compared to $1.4 million for the prior six-month period. The reasons for the decrease in net loss are discussed above.
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Comparison of Results of Operations for the year ended December 31, 2024 (“fiscal 2024”) compared to the year ended December 31, 2023 (“fiscal 2023”).
Key results for fiscal 2024 include:
| · | Topline revenue growth of 117% for fiscal 2024. Last year was a breakout year for our business, based upon execution of robust contracting activity during fiscal 2023. |
| · | Gross margin of 13.7% from primarily network construction activities in line with expectations. Over time, management expects our gross margin to increase dramatically, as higher margin recurring service fees constitute a growing share of revenues. |
| · | Operating expenses for fiscal 2024 increased by 57.2% over fiscal 2023, primarily driven by continued scaling of our network construction and operations teams. |
| · | Backlog as of December 31, 2024 was $34.8 million, compared to $13.1 million as of December 31, 2023. |
| · | Contracted units as of December 31, 2024 were 25,375, compared to 9,730 as of December 31, 2023. |
Revenue
Revenue for fiscal 2024 increased $4.6 million, or 117%, to $8.5 million compared to $3.9 million for fiscal 2023. This increase was primarily due to an increase in revenue from our network design and installation services of $3.9 million compared to fiscal 2023, driven by accelerated sales activities.
Cost of Revenue
Cost of revenue increased to $7.3 million for fiscal 2024, compared to $3.7 million for fiscal 2023. The increase in cost of revenue was due to increased levels of network design and installation service activities.
Gross Profit
Gross profit increased 497% to $1.2 million for fiscal 2024 compared to $0.2 million for fiscal 2023. Our gross margin for fiscal 2024 was 13.7% compared to 5.0% for fiscal 2023. The increase in gross profit and gross margin was due to increased levels of network design and installation service activities and economies of scale in these efforts.
Operating Expenses
Operating expenses were $4.4 million for fiscal 2024 compared to $2.8 million for fiscal 2023. The increase was driven by continued scaling of our network construction and operations teams, which contributed approximately $0.9 million and $0.5 million, respectively.
Operating Loss
Higher gross profit offset by higher operating expenses resulted in an increase in operating loss of $0.6 million to $3.2 million for fiscal 2024 compared to $2.6 million for fiscal 2023.
Interest Expense
Interest expense was $0.3 million for fiscal 2024 compared to $0.1 million for fiscal 2023. The increase was primarily driven by the increase in related party indebtedness during fiscal 2024. See Note 6, “Related Party Debt,” of the audited consolidated financial statements for fiscal 2024 included in this prospectus (the “fiscal 2024 financials”) for additional information.
Net Loss
Net loss increased $0.8 million to $3.5 million for fiscal 2024 compared to $2.7 million for fiscal 2023. The reasons for the increase in net loss are discussed above.
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Contracted Units and Backlog
Management uses contracted units and backlog as key performance metrics to assess our financial performance and results of operations. We define contracted units as the total number of individual units served across the properties using our networks. We believe this metric is useful to investors because it illustrates the total number of units we serve and can be tracked over time to show the reach of our networks. We believe it is more useful to compare total contracted units as opposed to total customers or total subscribers because our revenue is more closely tied to the number of units we serve than the total number of customers or subscribers. The measure of contracted units may vary across the internet services or real estate industries. Therefore, our contracted units measure is not necessarily comparable to similarity titled measures reported by other companies.
Backlog is defined as the aggregate amount of a contract price allocated to remaining performance obligations. Total backlog can include network design and installation performance obligations and internet network services and hardware and internet services performance obligations. We believe tracking backlog is useful to investors because it illustrates the remaining performance obligations under our contracts and the revenue we expect to recognize in the future. The measure of backlog may vary across the internet services or real estate industries. Therefore, our backlog measure is not necessarily comparable to similarity titled measures reported by other companies.
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Liquidity and Capital Resources
Going Concern Considerations
We have incurred significant losses since our inception. The financial statements included in this prospectus have been prepared assuming we will continue as a going concern. As of June 30, 2025 and December 31, 2024, we have an accumulated deficit of $10.7 million and $10.4 million, respectively. We experienced net losses of approximately $0.4 million for the six months and $3.5 million and $2.7 million for fiscal 2024 and fiscal 2023, respectively, and used net cash in operating activities of $1.5 million and $3.9 million during the first quarter and fiscal 2024, respectively. We expect our capital expenses and operational expenses to increase in the future due to investing in network construction activities and, therefore, our operating losses will continue or even increase at least through the near term. Furthermore, to the extent that we are successful in increasing our customer base, we will also incur increased expenses to meet the demand of our customers. We may not reach profitability in the near future or at any specific time in the future. If our operations do become profitable, we may not sustain profitability.
The report of our independent registered public accounting firm that accompanies our audited consolidated financial statements in this prospectus contains a going concern qualification in which such firm expressed substantial doubt about our ability to continue as a going concern. Our consolidated financial statements do not include any adjustments that might result if we are unable to continue as a going concern. If we are unable to continue as a going concern, holders of our securities might lose their entire investment.
Liquidity
Our primary liquidity requirements are for working capital, debt repayment, Network-as-a-Service project deployment and the payment of deferred compensation. Although income taxes are not currently a significant use of funds, after the benefits of our net operating loss carryforwards are fully recognized, they could become a material use of funds, depending on our future profitability and future tax rates. Our liquidity needs have been met primarily through equity offerings and related party loans.
As of June 30, 2025, we had approximately $0.5 million in cash. As of both December 31, 2024 and December 31, 2023, we had approximately $0.3 million in cash. We continue to manage our cash position in line with forecast network construction activities. During the six months and fiscal 2024, we used net cash in operating activities of $1.5 million and $3.9 million, respectively. As of June 30, 2025, December 31, 2024 and December 31, 2023, we had working capital deficit of $2.5 million, $2.5 million and $1.6 million, respectively. Key drivers of our working capital position have been, and continue to be, network construction receivables and deferred revenue.
Capital Resources
As of June 30, 2025 and December 31, 2024, we had long-term debt of $4.1 million and $3.4 million, respectively, compared to $1.2 million as of December 31, 2023.
We have financing arrangements with Endurance Financial LLC (“Endurance”), the manager of Endurance Opportunities, and Endurance Opportunities. On March 1, 2025 and March 25, 2025, we issued commercial promissory notes to Endurance in exchange for $1.0 million in total, that have a term of 18 months and 180 days, respectively, and on November 12, 2024, we issued a commercial promissory note to Endurance Opportunities in exchange for $0.25 million, that has a term 18 months, using certain account receivables as collateral for each of the commercial promissory notes. The purpose of these facilities was to support our working capital position. On April 1, 2024 we entered into the Fixed Rate Loan Agreement with Endurance Opportunities for $1.0 million to refinance previously held long-term debt. See Note 6, “Related Party Debt,” of the six month financials and “Certain Relationships and Related Party Transactions” for additional information.
On April 12, 2024, we issued a promissory note to Motherlode, LLC (“Motherlode”) for $1.0 million as part of an agreement to repurchase and retire Series Seed Preferred Shares previously issued to Motherlode. See Note 6, “Related Party Debt,” of the fiscal 2024 financials and “Certain Relationships and Related Party Transactions” for additional information.
During fiscal 2024, we entered into various participation and agency agreements with Endurance Opportunities pursuant to which Endurance provided us with the financing necessary to support our Network-as-a-Service product offerings under certain network service agreements (the “NSAs”). During fiscal 2024, we financed $1.2 million from Endurance Opportunities, and as of December 31, 2024, the NSAs had a balance of $1.3 million. See Note 6, “Related Party Debt,” of the fiscal 2024 financials for additional information.
During fiscal 2024, we received approximately $2.4 million in net proceeds through issuances of Series B Preferred Stock. See Note 8, “Equity Offerings” of the fiscal 2024 financials for additional information.
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On January 6, 2025, we entered into a SAFE agreement with an investor, pursuant to which we received an aggregate amount of $1.0 million. See Note 9, “SAFES,” of the six months financials for additional information.
Cash Flow Analysis
Operating Activities
Net cash used in operating activities was $1.5 million for the six months, compared to $1.6 million for the prior six-month period, primarily driven by higher gross income leading to a reduction in net loss.
Net cash used in operating activities was $3.9 million for fiscal 2024, compared to $2.0 million for fiscal 2023, primarily driven by the scaling of our network construction and network operations platform.
Investing Activities
Net cash provided by investing activities was $0.25 million for fiscal 2024, compared to none for fiscal 2023, driven by cash acquired from the reverse recapitalization with DeltaMax.
Financing Activities
Net cash provided by financing activities was $1.7 million for the six months, compared to $2.3 million for the prior six-month period, primarily driven by a reduction in the issuance of Series B Preferred Stock.
Net cash provided by financing activities was $3.6 million for fiscal 2024, compared to $2.2 million for fiscal 2023, primarily driven by increased equity fundraising through the issuance of Series B Preferred Stock and proceeds from related party debt.
Off Balance Sheet Arrangements
There were no material off-balance sheet arrangements as of June 30, 2025, December 31, 2024 or December 31, 2023.
Critical Accounting Estimates
The preparation of the consolidated financial statements in conformity with GAAP requires management to use judgment in making estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities, and the reported amounts of revenues and expenses. The following accounting policies are based on, among other things, judgments and assumptions made by management that include inherent risks and uncertainties. Management’s estimates are based on historical experience, the relevant information available at the end of each period, and their judgment. Although management believes the judgment applied in preparing estimates is reasonable based on circumstances and information known at the time, actual results could differ materially from these estimates under different assumptions or market conditions. See Note 2, “Summary of Significant Accounting Policies,” of the six months financials for information about our significant accounting policies.
Accounts Receivable, Unbilled Receivables, Network Financing Receivables and Allowance for Credit Losses
Trade accounts receivable are recorded at invoiced amounts, net of allowance for expected credit losses (CECL), if applicable, and are unsecured and do not bear interest. Unbilled and network financing receivables are presented net of allowances for credit losses. Under the CECL impairment model, the Company develops and documents its allowance for credit losses on trade accounts receivable based on historical losses. The determination of portfolio segments is based primarily on the qualitative consideration of the credit risks driven by the customer type and macroeconomic factors, if any are deemed to drive credit loss. The Company also considers reasonable and supportable current information in determining its estimated loss rates, such as external forecasts, macroeconomic trends or other factors including customers’ credit risk and historical loss experience.
Revenue Recognition
We generate revenue from the following sources: (1) network design and installation and (2) internet network services. In accordance with Accounting Standards Codification 606 “Revenue Recognition,” there is significant judgment required in determining when to recognize revenue as performance obligations are satisfied. Recognition of network design and installation revenue occurs in line with incurred costs along set project milestones, with the most meaningful being delivery of provisioned network hardware to a client’s property, installation of the fiber backbone, and installation of endpoint electronics. Recognition of internet network services revenue occurs monthly as services are delivered.
Income Taxes
We utilize an asset and liability approach for financial accounting and reporting for income taxes. The provision for income taxes is based upon income or loss after adjustment for those permanent items that are not considered in the determination of taxable income.
Recent Accounting Pronouncements
See Note 2, “Summary of Significant Accounting Policies,” of the six months financials for information about recent accounting pronouncements.
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Internal Controls and Procedures
We are not currently required to comply with the SEC’s rules implementing Section 404 of the Sarbanes-Oxley Act and are therefore not required to make a formal assessment of the effectiveness of our internal control over financial reporting for that purpose. Upon becoming a public company, we will be required to comply with the SEC’s rules implementing Section 302 of the Sarbanes Oxley Act, which will require our management to certify financial and other information in our quarterly and annual reports and provide an annual management report on the effectiveness of our internal control over financial reporting. Though we will be required to disclose material changes made to our internal controls and procedures on a quarterly basis, we will not be required to make our first annual assessment of our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act until the year following our first annual report required to be filed with the SEC. We will not be required to have our independent registered public accounting firm attest to the effectiveness of our internal control over financial reporting until our first annual report subsequent to our ceasing to be an “emerging growth company.”
Change in Auditor
On August 26, 2025, Freed Maxick P.C. (“FM”), following the acquisition of certain assets of FM by Withum Smith+Brown, PC (“Withum”), notified us of its resignation as our independent registered public accounting firm, effective immediately (the “Replacement”).
The reports of FM on our financial statements for the fiscal years ended December 31, 2023 and 2024 did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles, except for an explanatory paragraph in its report related to our financial statements for the fiscal year ended December 31, 2024 regarding the substantial doubt about our ability to continue as a going concern.
During the fiscal years ended December 31, 2023 and 2024, and the subsequent interim period through August 26, 2025, (i) there were no “disagreements,” as defined in Item 304(a)(1)(iv) of Regulation S-K, with FM on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to the satisfaction of FM, would have caused FM to make reference to the subject matter of the disagreements in connection with its reports on our consolidated financial statements for such period, and (ii) there were no “reportable events,” as defined in Item 304(a)(1)(v) of Regulation S-K, except for material weakness in our internal control over financial reporting as reported to those charged with governance for the fiscal year ended December 31, 2024.
We provided FM with a copy of the disclosures in this registration statement and requested that FM furnish us with a letter addressed to the SEC stating whether or not it agrees with the statements herein. A copy of such letter, which is dated August 29, 2025, is included as an exhibit to this registration statement.
In connection with the Replacement, on August 26, 2025, the Audit Committee approved the engagement of Withum as our independent registered public accounting firm for the fiscal year ending December 31, 2025, effective immediately.
During the fiscal years ended December 31, 2023 and 2024, and the subsequent interim period through August 26, 2025, neither the Company nor anyone acting on its behalf consulted with Withum regarding (i) the application of accounting principles to any specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on our financial statements, and neither a written report nor oral advice was provided to us that Withum concluded was an important factor considered by us in reaching a decision as to any accounting, auditing, or financial reporting issue, or (ii) any matter that was either the subject of a “disagreement,” as defined in Item 304(a)(1)(iv) of Regulation S-K, or a “reportable event,” as defined in Item 304(a)(1)(v) of Regulation S-K.
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Executive Summary
We are a provider of broadband Internet networks for the multifamily and student housing property sector. We provide Managed Services and Network-as-a-Service solutions designed to modernize and enhance the Internet connectivity experience for residents while driving significant financial benefits for property owners.
We strive to be a leading player in a booming multifamily property conversion trend through service commitment, operational experience and flexibility. Key highlights of our business and market opportunity include:
| · | There is an untapped market to fulfill major demand for network services in multifamily housing units: |
| o | According to market estimates from the NMHC, there are approximately 23 million apartment units in the U.S., and we estimate 55% of those units are well-suited for our network services. |
| o | Through our own market research using the CoStar data, we estimate there are 10 million units in our addressable market of properties with 100 units or more for overbuilds, or installing our network in a multifamily building with an existing network. |
| o | According to the National Apartment Association, the United States needs to build more than 4.6 million new apartment homes at a minimum, with as many as 11.7 million needed by 2030. |
| · | Our pipeline is rapidly growing due to our longstanding relationships and expanding customer base. From both existing and new customer relationships, we are currently tracking over 400 opportunities for our Managed Services solution, representing $103.5 million of potential network construction revenue and an estimated $22 million annual recurring revenue, if we were able to successfully complete all of these opportunities. We have also identified approximately 265,000 units in our near-term Network-as-a-Service pipeline, which we estimate could represent $150 million in annual recurring revenue. |
| · | We have a strong reputation for execution, customer satisfaction and top-notch support from our current business and our management team’s association with Elauwit Networks, LLC, which was acquired by Boingo for total consideration of approximately $28.6 million in August 2018. |
| · | Our resident experience focused service offering helps our property owner customers differentiate their communities through our high-speed, instant-on, internet access approach paired with customer support developed to deliver timely, wholistic support. |
| · | We have a highly repeatable and efficient network installation process, where we install fiber or switched ethernet to each unit in a multifamily property. Once our network is installed, we achieve 100% penetration of our network to the units. |
| · | Once our network is installed, we have the opportunity to collect high margin, recurring revenue streams with ongoing service packages. If we are able to appropriately scale our business, we believe we could achieve up to 70% and 75% of gross margin in our Managed Services and Network-as-a-Service lines of business, respectively. |
| · | We view the fragmented competitive landscape as ripe for consolidation. We have identified over 40 competitors as potential acquisition opportunities we plan to explore. |
Company Overview
We design, install, operate, and maintain new fiber optic and WiFi networks throughout each contracted property. Once installed, property owners begin selling Internet connectivity over Elauwit’s network directly to their residents at monthly prices and terms of their choosing. Elauwit, in turn, provides all resident activation, onboarding, customer support, and all network monitoring and maintenance services in exchange for a fixed monthly fee based on the number of units in the property times a monthly per-unit wholesale price. Our contracts with property owners generally have five to eight-year terms.
By implementing Elauwit’s network and services, multifamily property owners:
| · | Bring the latest fiber-based Internet connectivity and WiFi services to their entire property, which has become an important factor in a property’s appeal to current and potential residents, |
| · | Provide residents with directly connected upload and download speeds of 1 gigabit per second (“Gbps”) as generally measured by the industry, plus both in-unit and all-property WiFi connectivity averaging between 200 and 500 Mbps as generally measured by the industry, plus 24/7 customer service and support provided by Elauwit, |
| · | Increase their per-unit contribution to net operating income by the difference between the monthly retail rate they charge to residents and Elauwit’s monthly wholesale fee to them, and |
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| · | Reduce duplicative operating expenses by moving over technology assets and services to Elauwit. |
According to the NMHC there are approximately 23 million apartment units in the U.S. Elauwit’s target market is properties with over 100 units, which the NMHC has estimated consists of approximately 12.1 million units.
We believe that virtually all of these larger properties are prospects for our services given the importance of high-speed Internet access to renters nationwide. This importance is highlighted by the NMHC’s recent resident survey, which found that at least 85% of respondents - in every income bracket from less than $25,000 per year to more than $200,000 per year - were either interested in, or would not rent without, high-speed Internet services.
As of January 31, 2025, we have over 26,500 combined units in service and contracted (pending installation) across 92 multifamily properties in 20 states. We have grown rapidly, with nearly 20,000 of these units coming online or contracting over the past year, resulting in 117% topline revenue growth in 2024.
Company History
Our senior management team previously founded Elauwit Networks, LLC (“Elauwit 1.0”) in 2008, offering Managed Services principally to owners and developers of student housing complexes.
Between 2008 and 2018, Elauwit 1.0 achieved the following:
| · | Managed over 250 properties across 43 states, |
| · | Provided support to over 150,000 users, and |
| · | Achieved 93% positive customer satisfaction scores, with calls answered by humans and 84% one-call resolution. |
In August of 2018, Elauwit 1.0 was acquired by Boingo for total consideration of approximately $28.6 million in connection with Boingo’s entrance into the multifamily property type and contributed approximately $28.0 million to Boingo’s total revenue for the year ended December 31, 2018, with approximately 50% being high-margin recurring revenue. Elauwit 1.0’s gross margin on recurring revenue was in excess of 80%.
Elauwit Connection, Inc. (“Elauwit 2.0”) was founded in December 2019 as a result of the entrepreneurial spirit of the company’s founders, paired with their intense focus on the resident experience. Elauwit 2.0 grew due to its reputation as a committed partner for real estate owners and its dedication to execution and top-notch support.
In September 2024, Elauwit 2.0 entered into an Agreement and Plan of Merger with DeltaMax, Inc. (“DeltaMax”), an entity created to support and effectuate Elauwit 2.0’s go public strategy. Upon Elauwit 2.0 merging into DeltaMax, the latter changed its name to Elauwit Connection, Inc. Prior to the merger, DeltaMax had no operations or personnel. No changes to Elauwit 2.0’s pre-merger operations or personnel occurred as a result of the merger. Throughout this registration statement, “Elauwit,” the “Company,” “we,” “us,” “our,” or similar references refers to the entity resulting from the merger with DeltaMax.
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Business Model
Our business model consists of providing high-speed, instant-on, internet access services wholesale to commercial real estate property owners, predominately focused on conventional multifamily developments of 100 units and more. We strive to provide our property owner customers with an additional revenue stream, a superior technical solution, and an excellent resident experience. We offer both Managed Services and Network-as-a-Service solutions to customers.
Through our Managed Services solution, we enter into network service agreements, pursuant to which customers fund all network design and installation costs, with which we receive a gross margin on design and network installation costs. We then operate the network on our customers’ behalf under a long-term service agreement for a monthly fee, which includes 24/7 network monitoring, network maintenance, resident support, and bandwidth to each property. Under our network services agreements, if a customer terminates the contract without cause, the customer will pay a termination fee equal to (i) any one-time termination fees we incur through termination of service provider contracts (without markup) at the property, provided that the customer may, in its sole discretion, elect to take assignment of such service provider contracts rather than paying the one-time non-terminable fees, in which case we will immediately assign the contracts to the customer, plus (ii) 25% of remaining service fees owed to us during the initial term.
Through our Network-as-a-Service solution, we enter into internet services agreements, pursuant to which we fund and maintain ownership of the installed network, operating for a monthly fee under a long-term service agreement that incorporates our investment in the property. Similar to our Managed Services solution, we also provide 24/7 network monitoring, network maintenance, resident support, and bandwidth to each property. Our goal is to build high margin, recurring revenue. The chart below illustrates the economics we estimate will be recognized through our Network-as-a-Service solution, based on a 450-unit community located in Fort Wayne, Indiana:
| (1) | Reflects project IRR before impact of third-party financing. |
| (2) | Reflects assumed 6.5% capitalization rate. |
| (3) | Reflects gross profit to the Company – does not include the impact of third-party financing. |
From a property owner’s perspective, our Managed Services and Network-as-a-Service solutions first provide an additional revenue stream through the difference in the fee it pays to Elauwit for the services provided and the price charged to tenants, which can result in increased net operating income generated by the property owner. Second, our networks serve as the technology backbone for the entire property, critical for property technology (“PropTech”) deployment success. Third, our intense focus on the resident experience helps property owners differentiate their properties. Unlike traditional internet service providers that may be known for poor customer support, we aggressively manage support call wait times, first touch resolution metrics, and timeliness of dispatched technicians when in-person support is needed. Altogether, this contributes to the high-end amenity feel of the critical utility that is internet access.
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The table below illustrates the economics to us and our customers for each of our solutions based on a hypothetical 250-unit property:
| Managed Service | Elauwit Financial Benefit | Network-as-a-Service | ||
| $250,000 | Design & Network Install Revenue | $18,750 | ||
| One-Time(1) | One-Time | |||
| $67,500 | Elauwit Managed Service Fee | $135,000 | ||
| Per-Year | Per-Year | |||
| $42,500 | Estimated Elauwit Incremental Gross Profit | $105,000 | ||
| Per-Year | Per-Year | |||
| N/A | Capital Expenditure Outlay | $250,000 | ||
| One-Time | ||||
| N/A | Est. Average Internal Rate of Return (IRR) %(4) | ~35.0% | ||
| Per-Year | ||||
| 60.0% | Estimated Elauwit Incremental Gross Margin | 75.0% | ||
| Per-Year | Per-Year |
| Managed Service | Property Owner Financial Benefit | Network-as-a-Service | ||
| $255,000 | Retail Revenue to Property Owner | $255,000 | ||
| Per-Year | Per-Year | |||
| $187,500 | Estimated Property Owner NOI Increase(2) | $120,000 | ||
| Per-Year | Per-Year | |||
| 45.0% | Estimated Internal Rate of Return (IRR) %(4) | N/A | ||
| Per-Year | ||||
| $3,125,000 | Estimated Property Value Increase(3) | $2,000,000 | ||
| Per-Property | Per-Property |
| (1) | We expect to recognize one-time gross margin contribution of $62,500 on design and network installation for our Managed Services solution. |
| (2) | Represents an estimate of the increase in net operating income (total revenue minus operating expenses other than interest and tax expense) a property owner would realize based on management’s experience with past customers. We estimate the NOI improvement for property owners could be up to 200 to 300 basis points. |
| (3) | Represents the estimated property value increase for customers resulting from the applicable service provided assuming a capitalization rate of 6%. |
| (4) | Internal rate of return (IRR) % is unlevered. |
Market Trends
We believe the multifamily property sector in the United States is increasingly transitioning from a long reliance on legacy common carriers offering direct Internet subscriptions to their residents to property owners deploying new fiber and WiFi networks in their properties and selling Internet services directly to their residents via Managed Services providers like Elauwit.
We believe this is especially true in the new construction market. We believe a very large majority of the larger multifamily developments are now routinely constructed using the services of a Managed Services provider like Elauwit to design, install, and manage a built-in private fiber and WiFi network from which property owners sell residential Internet access services from day one. In addition, our own experience suggests that conversions of existing properties to privately managed networks can be accelerated via the type of conversion-focused solutions we bring to the market.
The sustained rise of remote work, online education, and smart home technologies are the fundamental drivers of these accelerating trends, and lead inexorably to the fact that high-speed, high-quality Internet access is now seen as being an absolute requirement for virtually every apartment resident in the U.S.
Our Market Opportunity
Through our own market research using the CoStar data base and others, we have identified, by company and contact details, approximately 2,950 property companies owning approximately 11.5 million units across approximately 40,800 US properties that we believe represent our target market. All of these companies have multifamily and/or student housing portfolios of 500 units or more according to the CoStar data.
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We further estimate that these 11.5 million units are likely spending over $8 billion annually on Internet access service, using the US nationwide average of approximately $70 per month per household spent on Internet access.
Based on our industry knowledge, customer discovery, and marketing efforts with multifamily property companies over the last several years, we believe virtually all of these owners, properties, and units are addressable by us and available to take our services over the next five to seven years.
We believe we have a well-balanced mix of internal and strategic vendor resources and key proprietary network design and installation processes that can scale across multiple, simultaneous projects. We plan to continue to leverage our longstanding relationships with property owners to expand our business.
Since relaunching in 2022, we have seen the pipeline for our services develop rapidly. The market for our services is large and growing as property owners seek technology enhancements to entice tenants and increase net operating income. As a result, we have consistently grown our opportunity count, now topping 400 individual properties we have identified as potentially interested in our approach to service. These opportunities represent over 110,000 units, $103.5 million of potential network construction revenue, and an estimated $22 million annual recurring revenue, if we were able to successfully complete all of these opportunities. These figures are limited to identified properties quotes or properties in the process of quoting, and do not include portfolio properties of existing property owner customers not yet in focus for our service offering. We have also identified approximately 265,000 units in our near-term Network-as-a-Service pipeline, which we estimate could represent $150 million in annual recurring revenue. There can be no assurance that we could achieve any or all of these opportunities. During the preceding twelve months ended June 30, 2025, we recognized:
| · | Revenue of approximately $16.9 million, representing year-over-year growth of approximately 99%; |
| · | Gross profit of approximately $3.5 million, representing year-over-year growth of approximately 199%, and gross margin of 20.6%; |
| · | Recurring service revenue of approximately $1.9 million; and |
| · | Installation revenue of approximately $15.0 million. |
Strong Fundamental Demand from Residents
New data from the 2024 NMHC and Grace Hill Renter Preferences Survey Report shows that Internet connectivity shapes renters’ leasing decisions and living experience.
Since 2013, the NMHC and Grace Hill Renter Preferences Survey Report has offered a comprehensive exploration of contemporary renter sentiments and the priorities shaping the rental housing landscape. Over time, the biennial report has provided the multifamily industry with some important benchmarks about the features, amenities and services that renters not only value but view as critical to their experience at a property. The ranking of these features and amenities can serve as a guidepost for housing providers when designing new communities and renovating existing communities, both in terms of what they must include and what they could perhaps do without.
One of the most apparent takeaways when we look back at the historical data is how important features and amenities related to Internet connectivity continue to be to renters. Amongst the many criteria prospective residents consider when choosing their apartment homes, connectivity remains a major consideration. Residents expect ease of access and consistency when it comes to Internet access, and as the majority will not rent without this ease and consistency, these features and amenities fall in the “must-include” category for most housing providers.
Presented here is the connectivity data from the 2024 version of the survey, which includes responses from more than 172,000 renters nationwide. Beyond looking at topline figures, we also conducted additional analysis including historical survey responses to uncover demographic trends related to the battery of questions asked surrounding connectivity.
High-Speed Internet and Reliable Cell Reception Top Renters’ Overall Wish Lists
Out of more than 80 features and amenities covered in the survey, high-speed internet and reliable cell reception have consistently ranked as top apartment features and community amenities for renters across the numerous iterations of the survey.
For 2024, 90% of respondents were either interested or would not rent without high-speed internet—making that the third highest ranking apartment feature this year after air conditioning and in-unit washer/dryer.
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While residents rely on internet connectivity for a variety of communication and entertainment purposes, the rise of remote work has also underscored the importance of connectivity. Of all respondents in the survey, 52% said they work remotely some or all of the time, and of those who do, 70% either work remotely every day or several days a week.
While many work from their apartments, shared workspaces in community common spaces are also becoming a prominent amenity for today’s renter. And unsurprisingly, always-on and secure WiFi in those shared workspaces is critical. Of those respondents who said they would be interested in using a shared workspace on a remote workday, 92% said free WiFi was very important or absolutely essential.
Residents Expect High Quality Connectivity from Move-In
Convenience and ease of access are also important to residents. The share of respondents either interested in or would not rent without community-wide WiFi increased from 54% in 2022 to 59% of respondents in 2024. Interest increased for every income bracket, with the largest increases coming from the lowest and the higher income brackets—from 58% to 65% for those with household incomes over $200,000 per year and from 56% to 62% for those making less than $25,000 per year.
Roughly two-thirds (67%) of respondents reported interest in pre-installed WiFi, up from 62% two years prior. The greatest interest came from those over 65 years of age, 77% of whom reported being interested or not willing to rent without pre-installed WiFi.
Forty-six percent of respondents said they had checked their mobile connection while touring rental homes. Separately, 47% considered it somewhat or very important to connect to a property’s WiFi while touring rental homes or community spaces.
Forty-eight percent of all respondents say a connectivity certification like a WiredScore or ROVR Score would positively influence their decision to lease a rental home, offering them some independent assurance of the quality of connectivity.
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Eighty-seven percent of respondents think it either very important or absolutely essential to have internet service available immediately on move-in. For those who worked remotely at least some of the time, 61% thought it absolutely essential to have immediate access. Age was another key determinant, with 56% of those between 25 and 34, 58% of those between 35 and 44, and 57% of those between 45 and 54 reporting it was absolutely essential to have immediate access to Internet service.
Renters Show Increasing Interest in Managed WiFi Amid Growing Demand for Seamless Connectivity
When taken together, results from the survey indicate that renters increasingly expect a seamless connectivity experience both within their individual unit as well as throughout their apartment community.
This expectation can be effectively met by managed WiFi—a system where residents are connected to the same secure internet system both in their unit and throughout the community—as well as providing immediate access to internet upon move-in, a feature renters overwhelmingly expressed was important to them.
Our Service Offerings
Elauwit’s business model centers on installing and managing carrier-grade fiber networks under long-term contracts with property owners. Through these arrangements, property owners transition from traditional providers to Elauwit’s advanced systems at lease-end dates. Elauwit’s infrastructure delivers superior internet services, which property owners monetize by billing tenants at retail rates, earning a spread over Elauwit’s wholesale fees. This arrangement drives recurring revenue for Elauwit while enhancing the value of the properties it serves.
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We have two primary business models, Managed Services and Network-as-a-Service. Key revenue streams for each model include:
| · | For our Managed Services model, where the property owner purchases the network and engages Elauwit to onboard, operate, and maintain the network: |
| o | One time Design, Engineering, Equipment, and Installation Revenue, |
| o | Monthly Service Fees based on the total number of units in the property, generally for a contract term of five years, which are routinely renewed, and |
| o | Change-Order Revenue for landlord-directed network moves, adds, and changes. |
| · | For our Network-as-a-Service model, where we fund and own the installed network on the property: |
| o | Design Fees: One-time fees for designing and engineering the network. |
| o | Monthly Service Fees based on the total number of units in the property, which is higher than our Managed Services model given that we have funded the network, and generally for a contract term of seven to eight years which we believe will have the same routine renewal aspect that our Managed Services contracts have exhibited. |
Service Delivery
Elauwit contracts for the installation and delivery of a 10 Gbps carrier-grade, symmetric fiber circuit to each property, generally selecting from among several alternative carriers in the property’s area. Additionally, Elauwit offers the option to add a back-up fiber circuit on a unique path for redundancy. We are increasingly finding property owners valuing this option out of focus on the resident experience.
We then deploy WiFi-6 access points throughout the premises, including all individual units and common areas. This network architecture provides both wired and WiFi access in each unit and property offices, and seamless internet access for residents, property staff, and smart building systems via the property-wide WiFi network. Key features include:
| · | Generally, 1 Gbps symmetrical wired connectivity in each unit, and generally up to 500 Mbps WiFi connectivity in each unit. | |
| · | The WiFi network is partitioned such that each resident gets their own bandwidth, password, and security as if it was a physically dedicated network for each resident, with their own passwords and security. | |
| · | We provide 24/7 Tier 1 customer support for both residents and property staff via our multi-year relationship with a well-known international BPO that prides itself on creativity and flexibility. Their work in this regard has allowed us to enable this frontline support team with more tools than a typical ISP, increasing our one-call resolution capabilities. | |
| · | We have in-house Tier 2 and 3 engineering personnel which handles advanced troubleshooting and issue resolution responsibilities. | |
| · | Finally, we balance onsite maintenance and support via in-house technicians in markets where we have density of deployed service and third-party field service resources everywhere else. |
Customers
Elauwit has built robust relationships with a variety of property ownership and development groups. Relationships span from merchant builders, such as Hanover Company, to long-term holders, such as Elme Communities. In between are a number of ownership groups active in new construction with a long-term hold investment approach, such as JBG Smith and Thompson Thrift. The benefit of such diverse relationships is a steady stream of both new construction and retrofit network build projects.
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Each property Elauwit serves represents a unique customer, as each property is held in a distinct legal entity. As of June 30, 2025, Elauwit had 112 customers, compared to 62 customers as of June 30, 2024. However, some customers are controlled by common ownership groups. As of June 30, 2025, no single ownership group controlled more than 15% of customers served by Elauwit. Furthermore, six ownership groups controlled five or more customers served by Elauwit, representing 58 total customers. As of June 30, 2024, four ownership groups controlled five or more customers served by Elauwit, representing 28 total customers. Our revenue and customer concentration are driven by network construction activities. At a given time, our revenue could be concentrated among one or multiple ownership groups, primarily due to the recognition of network construction revenue, which comprises a significant portion of our expected revenue on a project. Following the construction of a network, the recurring revenue we recognize over the remaining term of a contract does not comprise a material portion of our revenue. As a result, our revenue and customer concentration may fluctuate from time to time based on the frequency of our network construction activities. The following table illustrates our quarterly revenue growth and cumulative units activated through June 30, 2025:
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Geographically, these relationships have taken Elauwit across the continental U.S. Certain markets have been more active for Elauwit’s business, primarily the Southeast, Florida, Texas, and greater DC metro markets as these markets have experienced population growth in recent years. As of June 30, 2025, we have provided services in 25 states, as shown in the orange-shaded areas of the map below:

Employees
As of December 31, 2024, we had 21 total employees, of which 20 were full-time employees.
Properties
We lease approximately 5,950 square feet of office and warehouse space in Columbia, South Carolina, pursuant to a lease agreement that expires June 30, 2026. We believe this facility is adequate for the needs of our business.
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Strategy and Target Market
Elauwit’s growth strategy is two-fold:
| 1. | Organic Growth: Increasing our Managed Services and Network-as-a-Service units under management by accelerating both our new-build contract wins and our portfolio-level contract wins in our target market, and |
| 2. | Opportunistically Executing Accretive Acquisitions: There have been several mergers and acquisitions among Managed Services providers in the last two years. The supply of acquisition candidates has to date come primarily from smaller companies seeking to scale up by joining together under the umbrella of a Private Equity firm. We believe this trend will continue because there are significant synergies to be gained at scale, and there is a corresponding lack of investment capital to allow smaller companies to compete on their own. We maintain an active dialog with potential acquisition companies and their PE firm sponsors, where applicable, operating in our sector. |
Our organic growth target market is the 2,950 US companies we have identified with existing property and in-development portfolios of 500 units or more which, taken together, represent over 50% of the total apartment units in the US, over 90% of the new-build market, and over 95% of the units in complexes of 100 units or more overall. Our target customer base is relatively fragmented as well: no single company owns more than 1% of the total units, while the middle 1/3rd (approximately 1,000 companies) owns approximately 40% of all units. Companies in that middle 1/3rd have property portfolios ranging between 2,500 and 10,000 units.
New-Build Property Market
Our target customers for our Managed Services business – which is generally the most popular business model for new-build properties - are the developers and owners building 350,000 units’ worth of new multifamily properties per year in the US. Virtually all larger new property developments in the U.S. provide publicly available information very early in their development cycle and are tracked in CoStar and other data bases with a very high level of detail.
Based on our experience, we believe a large majority of new development projects in the U.S. with 100 units or more now mandate a Managed Services approach for their residential Internet services. We also believe that a majority of these projects source Managed Services providers via a competitive RFP process to start, and– increasingly, directly from a trusted provider they have worked with previously.
We selectively enter RFP processes where we believe:
| · | our experience, quality, and service reputation will make us competitive, | |
| · | we believe our standard pricing and terms will be competitive, and where | |
| · | the developer is an existing client or a potential long-term, multi-property client. |
We believe our win rate in these competitive processes is in the top three of all Managed Services providers we compete against regularly.
Based on our experience in Elauwit 1.0 and now with our additional cumulative successes winning RFP processes and building quality systems, we are increasing the number of new-build clients in our portfolio for whom we have become a preferred or sole supplier for all their new-build projects, thus winning Managed Services projects “automatically” versus via RFPs.
Existing Property Market
We created our Network-as-a-Service business model specifically for the existing property market where we believe its features are especially appealing.
Large multifamily and student housing properties in the US have historically been very precisely financed with a variety of restrictive debt and equity layers, incentives, and management structures, which taken together do not easily permit the allocation of the new capital required to install a new Internet access and WiFi network.
Our Network-as-a-Service offering, where we provide all of the capital to engineer, purchase, and install the property’s new network, overcomes this barrier.
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Our primary sales strategy to date for the existing property market has been executive-level networking, outreach, and hands-on selling directly to owners and C-level decision makers of our target property companies. We believe this strategy has and will continue to be successful because:
| 1. | Based on our experience, the buying decision for our type of service is made by owners and/or a small group of C-level executives in the company. |
| 2. | Favorable word-of-mouth and positive referrals from existing customers have been shown to be key decision-making factors both in our sector as well as in many other categories of products and services catering to the multifamily property market. |
| 3. | We believe building confidence and trust in our abilities is a critical factor in our customers’ purchase decision, and we further believe this is best done via our own executive leadership. |
| 4. | Our long and successful track record in the industry has given our executive leadership positive relationships with many influential owners and C-level executives in the sector, and thus favorable referrals and networking opportunities into their peers at our other prospect companies. |
| 5. | Concentrating our sales efforts on portfolio companies rather than the property-by-property approach taken by many of our competitors allows us to grow our business at much lower cost and in much larger increments for each successful sale. |
Competitive Landscape
| 1. | Direct Competitors Elauwit faces competition from both incumbent ISPs which are generally the legacy common carriers in each local and other Managed Services ISPs similar to Elauwit. |
| o | Incumbent ISPs such as Comcast, AT&T, and Spectrum typically provide services directly to the residents of multifamily properties with little or no involvement of the property owner. Their service offerings are generally dependent upon the type, age, and condition of their connecting network adjacent to the property and thus can vary widely. In addition, carriers such as these have historically negative customer service performance and reputations. |
| o | Managed Services ISPs, including companies similar in size and scope to Elauwit (Pavlov Media, Single Digits, WhiteSky, and Aerwave for example) offer similar value propositions as ours but may lack Elauwit’s portfolio-level services offerings, nationwide execution capability, our customer satisfaction record, or our extensive experience in the industry. We most often see these types of competitors when pursuing new-build opportunities as virtually all of these projects now mandate a Managed Services approach, and a majority of new construction developers initially source their Managed Services partner via a competitive RFP process. |
| 2. | Substitutes While Elauwit’s solutions are specialized, property owners and tenants may consider substitutes such as: |
| o | Direct-to-Tenant ISP Contracts: Tenants individually contract with ISPs, but this model often results in inconsistent service quality for residents, a lost potential income stream for the property owner, and limited property owner control over infrastructure. |
| o | Mobile Internet Providers: Mobile carriers offering high-speed 5G services (e.g., Verizon, T-Mobile) could serve as an alternative, particularly for residents seeking portable connectivity solutions. However, mobile services are generally less cost-effective for property-wide implementations and lack our reputation for top-notch support. |
| o | Do-It-Yourself Networks: Some property owners may attempt to design and manage their own networks. These efforts often fall short due to lack of experience and the technical complexity and high costs involved. |
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| 3. | Potential New Entrants The high-growth nature of this market is attracting interest from new players, particularly in the following categories: |
| o | Real Estate Technology Firms: Companies expanding from property management software into connectivity solutions as part of an integrated PropTech ecosystem. While these companies may be strong players in the PropTech ecosystem, they do not have Elauwit’s experience or expertise in delivering the infrastructure necessary for our target customers. |
| o | Global ISPs: International players may look to enter the U.S. market, targeting multifamily housing as a growth segment. |
Competitive Strengths
| 1. | Portfolio-Level Service Offerings: We have created a set of contractual features and service offerings that are especially tailored to multi-property ownership groups. Based on our experience to date, we believe these types of features are generally available from or promoted by our competitors. Among these features are our Network-as-a-Service offering, which is especially designed for owners of existing properties whose financial structuring makes it difficult or unattractive to for them to provide the up-front network capital. Based on our experience to date, we believe a large majority of existing properties within multi-property ownership groups fall into this category. |
| 2. | Proven Expertise: Our managements’ experience in Elauwit 1.0 which grew to over 250 properties and 150,000 users served has given us a deep understanding of the market, a high-quality reputation, and extensive contacts within the property ownership community. |
| 3. | Scalable Model and National Footprint: Although multifamily properties differ in size, shape, and geography, we have designed our services offerings such that they can be delivered and supported in the continental U.S., and for virtually any property type with 100 or more units within a typical footprint and configuration. We believe this all-U.S. capability gives us an extra advantage with metaproperty owners who operate in more than one U.S. region. |
| 4. | Design and Technology: We work with landlords to maximize the long-term value of their property by installing the optimum current technologies given their budgets, but also by using easily upgradeable technologies that will adapt gracefully to both increased demand and new applications. |
| 5. | Resident Satisfaction: Based upon our knowledge and belief, we consistently achieve higher resident satisfaction ratings than our competitors, in part because new residents do not have to schedule and wait for an installation appointment. |
| 6. | Management Team: Our Executive Chairman, Chief Executive Officer, and President are all recognized industry pioneers and leaders, with each having now served with Elauwit 1.0 and Elauwit 2.0 with a combined 70 years of experience. |
| 7. | Strong Industry Reputation: Elauwit 1.0 grew through its reputation for execution and top-notch support. While traditional ISPs are notorious for poor customer service, Elauwit has prided itself on its resident experience focus. We aim to raise the bar on what a multifamily resident should expect from their ISP – shorter hold times (our average answer time is 34 seconds), more nimble support (four support channels across talk, text, email, and chat), and faster issue resolution (on average, greater than 80% of our 2,300 monthly ticket volume is solved with the first touch). |
| 8. | Customer Relationships: Strong, long-term relationships with property owners and developers that have proven essential for securing contracts. |
Intellectual Property
Our intellectual property portfolio is limited to the exclusive right to use the tradename “Elauwit” and the service marks, domain names and goodwill associated therewith, which are owned by Mr. McDonough, our Executive Chairman.
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Legal Proceedings
From time to time, we may be party to or otherwise involved in legal proceedings arising in the ordinary course of business. We do not believe that there is any pending or threatened proceeding against us, which, if determined adversely, would have a material adverse effect on our business, results of operations or financial condition.
Regulatory Compliance
Currently, management is not aware of any direct or proposed FCC regulation of its business, however, the potential for change is always present. Proposals from the FCC in recent years, such as its ‘anti-bulk’ proposal, illustrate the potential for change, but have not come to fruition due in large part to the negative consumer impact. If an ‘anti-bulk’ proposal were approved, property owners of multifamily housing properties would not be able to enter into bulk billing agreements with network service providers for a property.
At the state and local level, management is not aware of any direct regulation of its business model, but is aware of two instances of regulatory action applicable to its customer, the property owner, in the states of Colorado and Massachusetts that would impact its standard operating model. In Colorado, for third-party services, property owners can only charge a markup or fee in an amount that does not exceed 2% of the amount that the property owner was billed by the third-party or a fee in an amount that does not exceed $10 per month, whichever is greater. If we were to expand to areas with this type of regulation, our revenue could be negatively impacted.
The following table sets forth certain information about our executive officers and directors as of June 30, 2025.
| Name | Age | Position | ||
| Executive Officers: | ||||
| Dan McDonough, Jr. | 49 | Executive Chairman | ||
| Barry Rubens | 66 | Chief Executive Officer and Director | ||
| Taylor Jones | 47 | President, Chief Technology Officer and Director | ||
| Sean Arnette | 43 | Chief Financial Officer and Treasurer | ||
| Rick Alder | 67 | Chief Operations Officer | ||
| Directors: | ||||
| Scott Barton | 59 | Director | ||
| Elbert Gene Basolis, Jr. | 63 | Director | ||
| Frederick Berk | 66 | Director | ||
| Leslie Goodman | 82 | Director | ||
| Glenn Josephs | 70 | Director | ||
| David O’Brien | 47 | Director | ||
| Roger Shannon | 60 | Director |
Executive Officers
Dan McDonough, Jr. Mr. McDonough has served as Executive Chairman since our inception in December 2019. Mr. McDonough founded the original Elauwit, LLC in 2002, and Elauwit 1.0, in 2008. He served as Elauwit 1.0’s Chief Executive Officer until 2012 when he became Executive Chairman. In 2018, Elauwit 1.0 sold the majority of its assets to Boingo and Mr. McDonough served as a strategic advisor to Boingo’s Chairman and Chief Executive Officer for one year. Prior to starting Elauwit, LLC in 2002, Mr. McDonough held news executive positions at Dow Jones & Company, Inc. and Gannett Co., Inc. He also served as a New York special correspondent and the Washington-based Bureau of National Affairs. Mr. McDonough was chosen to serve as a director because of his extensive knowledge and leadership experience with our Company, Elauwit 1.0, and Elauwit, LLC.
Barry Rubens. Mr. Rubens has served as our Chief Executive Officer and as a director since our inception in December 2019. From August 2018 to December 2019, Mr. Rubens served as Senior Vice President - Development at Boingo. Mr. Rubens joined the board of directors of Elauwit 1.0 in 2009 and served as its Chief Executive Officer from 2012 until its acquisition by Boingo in August 2018. Prior to that service, Mr. Rubens founded Davidson Telecom, LLC, to provide telecommunications services for large shopping mall developers. From 1993 to 2002, Mr. Rubens worked at CT Communications, Inc., where he served in various roles including Senior Vice President and Chief Financial Officer and was responsible for leading the company’s public offering and listing on Nasdaq. Mr. Rubens was chosen to serve as a director because of his extensive knowledge and leadership with our Company and Elauwit 1.0.
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Taylor Jones. Mr. Jones has served as President, Chief Technology Officer and a director since our inception in December 2019. Previously Mr. Jones was Vice President, Technology Solutions for Boingo from 2018 to 2019 and Chief Technology Officer of Elauwit 1.0 from 2008 until its acquisition by Boingo in August 2018. Prior to joining Elauwit 1.0, Mr. Jones served as Chief Technology Officer of a Southeastern “fiber-to-the-home” service provider from 2005 to 2008 and a Carolinas-based internet service provider from 2001 to 2005. Prior to this service, Mr. Jones served as a consultant for PricewaterhouseCoopers LLP, practicing in the areas of utilities and telecommunications, from 2000 to 2001. Mr. Jones was chosen to serve as a director because of his extensive knowledge of our Company and the telecommunications industry.
Sean Arnette. Mr. Arnette has served as our Chief Financial Officer and Treasurer since January 2020. From 2019 to 2020, Mr. Arnette served as Vice President of Corporate Development at Alabama Shipyard, LLC. Prior to this service, Mr. Arnette served as Vice President, Private Wealth Management at Citizens Bank from 2014 to 2018. From 2012 to 2014, Mr. Arnette served as Private Wealth Management Associate, Private Bank at J.P. Morgan and from 2011 to 2012 he served as an Investment Banking Associate, Global Mergers and Acquisitions at Barclays. Prior to this, Mr. Arnette was First Lieutenant in the United States Air Force from 2004 to 2007.
Rick Alder. Mr. Alder has served as our Chief Operations Officer since March 2025. Prior to this service, Mr. Alder served as President of New Business Markets at Hosted America from 2021 to 2025 and as President and Chief Operating Officer at Hosted America from 2016 to 2021. Mr. Alder served as Vice President – Client Relations at Elauwit 1.0 from 2015 to 2016. Prior to this service, Mr. Alder served as President and Chief Operating Officer at RMK Corporation from 2013 to 2015. From 2006 to 2009, Mr. Alder served as Executive Vice President, Operations and Marketing at Capital Broadband, LLC and from 2009 to 2012, he served as President, Primecast (Broadstar, LLC), a subsidiary of Capital Broadband, LLC. From 2002 to 2006, Mr. Alder served in various roles at Madison River Communications.
Sebastian Shahvandi. Effective upon the closing of this offering, Mr. Shahvandi will serve as our Chief Revenue Officer. Prior to joining the Company, Mr. Shahvandi served as Chief Executive Officer at 7SIGNAL, Inc., a cloud-based wireless network monitoring platform, from 2023 to 2024. From 2021 to 2022, Mr. Shahvandi served as Senior Vice President – Growth at IDeaS Inc. Prior to this service, Mr. Shahvandi served as Chief Revenue Officer at Hypori, Inc. from 2018 to 2021 and as Vice President and General Manager – Enterprise Solutions Division at IMPRES Technology Solutions, Inc. from 2015-2017. Before this, Mr. Shahvandi worked at Dell Technologies Inc., where he served as General Manager, Microsoft OEM Business from 2011 to 2013 and General Manager, Enterprise and Federal Software Business from 2013 to 2015. In 2000, Mr. Shahvandi founded HNM Technologies and served as its Chief Executive Officer until 2009.
Directors
Scott Barton. Mr. Barton has served as a director since August 2022. Mr. Barton has served as Chief Investment Officer of Campus Advantage, Inc. since September 2021. Mr. Barton has more than 20 years of experience in commercial real estate with a specific focus in the student housing, hotel, land and retail sectors. Prior to joining Campus Advantage, Mr. Barton served as Senior Vice President - Investments at Fayth Hospitality Group LLC from July 2020 to August 2021 and Managing Director, Investments at Greystar Real Estate Partner from September 2018 to September 2019. From February 2012 to September 2018, Mr. Barton served as Senior Vice President at Education Realty Trust, where he was responsible for all acquisitions, dispositions, and off-campus development activities for a $4.6 billion publicly traded student housing real estate investment trust. Prior to his service at Education Realty Trust, Mr. Barton served as Senior Vice President - Retail Brokerage at Coldwell Banker Richard Ellis from December 2002 to January 2012 and Vice President - Development and Leasing at Retail Realty Group from September 1999 to December 2002. Mr. Barton was chosen to serve as a director because of his extensive experience in the real estate industry, which we believe will be important as we expand our relationships with property owners.
Elbert Gene Basolis, Jr. Mr. Basolis has served as a director since January 2023. Mr. Basolis has served as President of Garrison Enterprise, Inc. since January 2005, where he is focused on building Garrison Enterprise, Inc. to be recognized as the premier underground utility contractor on the Eastern seaboard. From 2008 to 2022, Mr. Basolis served as a director at First Bank (Nasdaq:FRBA) and as the chair of the IT committee and a member of the loan committee, the strategic planning committee, compensation and personnel committee, the nominating and governance committee. Mr. Basolis was chosen as a director because of his extensive experience as a utility contractor, which we believe will be important as we expand our relationships with property owners.
Frederick Berk. Mr. Berk has served as a director since November 2024. Mr. Berk currently serves as a member of the executive committee at DFK USA. Prior to this service, Mr. Berk served as Co-Managing Partner at Friedman LLP, a member of the firm’s executive committee and chairman of the firm’s real estate group from January 2015 until the firm’s merger with Marcum LLP in September 2022. From September 2022 to September 2024, Mr. Berk served as a Partner and member of the executive committee of Marcum LLP. Prior to this service, Mr. Berk served as a Partner at Friedman LLP from 1989 to 2015. From 1982 to 1989, Mr. Berk served in a variety of roles at Friedman LLP. Mr. Berk was chosen to serve as a director because of his extensive experience in the financial reporting and accounting industry.
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Leslie Goodman. Mr. Goodman has served as a director since November 2023. Mr. Goodman currently serves as chairman of the board of directors at First Bank (Nasdaq:FRBA). Mr. Goodman has been a principal of The Eagle Group, Inc., a commercial real estate development and management company, since 1996. Mr. Goodman is a graduate of Rutgers University with a BA in psychology in 1965, a MBA in finance in 1970 and a JD in 1980. He served as a member of the Rutgers Board of Governors from 2003 to 2009; member of the Board of Trustees from 1996 to 2023; chair from 2002 to 2003 and vice chair from 2001 to 2002; member of the Board of Overseers from 2000 to 2023. From 1966 to present, Mr. Goodman has been actively involved in the commercial banking industry in various capacities as chairman, president, chief executive officer, and a director of a number of commercial banks. Mr. Goodman was chosen to be a director because of his extensive experience in the commercial banking industry, which we believe will be important as we implement our growth strategy.
Glenn Josephs. Mr. Josephs has served as a director since January 2023. Mr. Josephs is a Certified Public Accountant and retired from the accounting firm Friedman LLP in 2022. Mr. Josephs has over 45 years of experience providing accounting and consulting services. Mr. Josephs works closely with many commercial and residential real estate developers, owners, investors, syndicators, and management companies, including those involved in affordable housing. He also has experience with nonprofit organizations, health care and medical practices. Mr. Josephs currently serves on the board of directors of First Bank, a publicly traded institution (Nasdaq:FRBA). He has served on the board since 2008 and qualifies as the bank's "audit committee financial expert" under the relevant criteria established under SEC regulation. Mr. Josephs currently serves as the chair of the audit committee and loan committee. From 2020 to 2025, Mr. Josephs served on the compensation and personnel committee and the nominating and governance committee. Mr. Josephs was a Partner at Friedman LLP from 1996 to 2022, after serving as a Partner at Bagell, Josephs, Levine & Co LLC. Mr. Josephs was chosen to be a director because of his extensive experience providing accounting and consulting services to companies.
David O’Brien. Mr. O’Brien has served as a director since January 2023. The majority of Mr. O’Brien’s experience comes in the construction and real estate industry. Mr. O’Brien founded Brightline Construction, Inc, a heavy highway and structural concrete company in the Philadelphia Metro area, in December 2004 and has served as its President for over 20 years. Later, Mr. O’Brien founded CarCon LLC, a real-estate development company, and most recently launched Cara Capital LLC, a real estate venture capital investment company that focuses on the multifamily and construction sectors and the technology that supports them. Mr. O’Brien was chosen to serve as a director because of his extensive experience in the construction and real estate industries, which we believe will be important as we expand our relationships with property owners.
Roger Shannon. Mr. Shannon has served as a director since November 2024. Mr. Shannon has served as Chief Financial Officer of Lakeland Industries Inc., since February 2023. Prior to this service, Mr. Shannon served as Chief Financial Officer and Treasurer at Charah Solutions, Inc., from June 2019 to November 2022. From November 2015 to June 2019, Mr. Shannon served as Senior Vice President of Finance and Chief Financial Officer at Adtran, Inc. He also served as Chief Financial Officer and Treasurer at Steel Technologies, LLC from July 2006 to November 2015. Prior to this, Mr. Shannon served as the Assistant Treasurer and Director of Treasury at Brown-Forman Corporation from December 1997 to July 2006. From June 1994 to November 1997, Mr. Shannon served as Senior Investment Analysis, Assistant Treasurer of Batmark, Inc. at Brown & Williamson Tobacco Corporation. From July 1992 to June 1994, Mr. Shannon served as an Accounting Analyst at Lexmark International, Inc. Prior to this, Mr. Shannon served as a MBA Graduate Assistant, Finance Department at the University of Georgia from July 1991 to June 1992, a Staff Auditor at Vulcan Materials Company from July 1990 to June 1991 and a Supervising Senior Accountant at KPMG Peat Marwick from January 1988 to July 1990. Mr. Shannon was chosen to be a director because of his significant experience serving as a chief financial officer and his knowledge of the financial reporting and accounting industry.
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Director Independence
Our current Board consists of Dan McDonough, Jr., Scott Barton, Elbert Gene Basolis, Jr., Frederick Berk, Leslie Goodman, Taylor Jones, Glenn Josephs, David O’Brien, Barry Rubens and Roger Shannon. We are not currently listed on a national securities exchange or in an inter-dealer quotation system that requires a majority of the Board be independent. Our Board has undertaken a review of the independence of each director. Based on information provided by each director concerning his or her background, employment and affiliations, our Board has determined that Messrs. Barton, Basolis, Berk, Goodman, O’Brien and Shannon are considered independent under the Nasdaq listing standards. In making these determinations, the Board considered the current and prior relationships that each non-employee director has with the Company and all other facts and circumstances the Board deemed relevant in determining their independence, including the beneficial ownership of our capital stock by each non-employee director, and any transactions involving them described in the section titled “Certain Relationships and Related Party Transactions.” As required under applicable Nasdaq rules, we anticipate that our independent directors will meet in regularly scheduled executive sessions at which only independent directors are present.
Family Relationships
There are no family relationships between any of our directors or officers.
Committees
Our Board has established three standing committees: the audit committee; the compensation committee; and the nominating and corporate governance committee. Each of these committees consist solely of independent directors. We have adopted written charters for each of these committees, which will be available on our website, www.elauwit.com, upon the effectiveness of this registration statement. Our Board may establish other committees as it deems necessary or appropriate from time to time.
Audit Committee
The audit committee will be responsible for, among other matters:
| · | appointing, compensating, retaining, evaluating, terminating, and overseeing our independent registered public accounting firm; | |
| · | discussing with our independent registered public accounting firm the independence of its members from its management; | |
| · | reviewing with our independent registered public accounting firm the scope and results of their audit; | |
| · | approving all audit and permissible non-audit services to be performed by our independent registered public accounting firm; | |
| · | overseeing the financial reporting process and discussing with management and our independent registered public accounting firm the interim and annual financial statements that we file with the SEC; | |
| · | reviewing and monitoring our accounting principles, accounting policies, financial and accounting controls, and compliance with legal and regulatory requirements; | |
| · | coordinating the oversight by our Board of our code of ethics and our disclosure controls and procedures; | |
| · | maintaining procedures for the confidential and/or anonymous submission of concerns regarding accounting, internal controls or auditing matters; and | |
| · | reviewing and approving related-person transactions. |
Frederick Berk, Leslie Goodman and Roger Shannon serve on the audit committee and meet the definition of “independent director” for purposes of serving on an audit committee under Rule 10A-3 under the Exchange Act and Nasdaq rules. Mr. Berk serves as Chair of the Audit Committee. Our Board has determined that each of Messrs. Berk, Goodman and Shannon will qualify as an “audit committee financial expert,” as such term is defined in Item 407(d)(5) of Regulation S-K.
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Compensation Committee
The compensation committee will be responsible for, among other matters:
| · | reviewing key employee compensation goals, policies, plans and programs; | |
| · | reviewing and approving the compensation of our directors and executive officers; | |
| · | reviewing and approving employment agreements and other similar arrangements between us and our executive officers; and | |
| · | appointing and overseeing any compensation consultants or advisors. |
Elbert Basolis, Jr., David O’Brien and Frederick Berk serve on the compensation committee and meet the definition of “independent director” for purposes of serving on a compensation committee under Nasdaq rules. Mr. Basolis serves as Chair of the compensation committee.
Nominating Committee
The nominating committee is responsible for assisting the Board in identifying qualified individuals to become directors, in determining the composition of the Board and in monitoring the process to assess Board effectiveness. Leslie Goodman, Scott Barton and Roger Shannon serve on the nominating and corporate governance committee and Mr. Goodman serves as Chair of the nominating and corporate governance committee.
Board Leadership Structure
Our Board and management believe that the choice of whether the Chair of our Board should be an executive of the Company, or a non-executive or independent director, depends upon a number of factors, taking into account the candidates for the position and the best interests of the Company and its stockholders. Mr. McDonough currently serves as our Executive Chairman. In this role, Mr. McDonough is able to focus his attention on long-term strategic initiatives and engagement with the Board. Our Chief Executive Officer, Mr. Rubens is then able to focus on strategy development and implementation of strategic initiatives. Mr. McDonough’s operating and leadership experience as the founder of Elauwit 1.0 and as an officer and director of our company since its inception make him a compelling choice for Executive Chairman.
Mr. Basolis serves as lead independent director. The lead independent director will preside over executive sessions of the independent directors and serve as a liaison between the independent directors and our chairman and management team.
Risk Oversight
Our Board will oversee a company-wide approach to risk management. Our Board will determine the appropriate risk level for us generally, assess the specific risks faced by us and review the steps taken by management to manage those risks. While our Board will have ultimate oversight responsibility for the risk management process, its committees will oversee risk in certain specified areas.
Specifically, our compensation committee will be responsible for overseeing the management of risks relating to our executive compensation plans and arrangements, and the incentives created by the compensation awards it administers. Our audit committee will oversee management of enterprise risks and financial risks, as well as potential conflicts of interest. Our Board is responsible for overseeing the management of risks associated with the independence of our board of directors.
Compensation Committee Interlocks and Insider Participation
None of our officers currently serves, or has served during the last completed fiscal year, on the compensation committee or board of directors of any other entity that has one or more officers serving as a member of our Board.
Code of Business Conduct and Ethics
In accordance with Nasdaq’s listing requirements and SEC rules, our Board adopted a Code of Business Conduct and Ethics that will become effective upon the effectiveness of this registration statement and applies to our directors, officers and employees. A copy of this code will be available on our website. We intend to disclose on our website any amendments to the Code of Business Conduct and Ethics and any waivers of the Code of Business Conduct and Ethics that apply to our principal executive officer, principal financial officer, principal accounting officer, controller, or persons performing similar functions. Information contained on our website is not incorporated by reference into this prospectus, and you should not consider information contained on our website to be part of this prospectus or in deciding to purchase shares of our common stock.
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Director and Officer Indemnification Agreements
We intend to enter into separate indemnification agreements with our directors and executive officers, in addition to the indemnification provided for in our certificate of incorporation and bylaws. These agreements, among other things, require us to indemnify our directors and executive officers for certain expenses, including attorneys’ fees, judgments, penalties, fines and settlement amounts incurred by a director or executive officer in any action or proceeding arising out of their services as one of our directors or executive officers or as a director or executive officer of any other company or enterprise to which the person provides services at our request. Our certificate of incorporation and bylaws require us to indemnify our directors and officers to the fullest extent permitted by Delaware law.
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EXECUTIVE AND DIRECTOR COMPENSATION
Summary Compensation Table
The following table provides information regarding the compensation paid for the years ended December 31, 2024 and 2023 to each of the executive officers named below, who are collectively referred to as “named executive officers” elsewhere in this prospectus.
| Name and Principal Position | Year | Salary ($) |
Total ($) | ||||
| Dan McDonough, Jr. | 2024 | 180,000 | 180,000 | ||||
| Executive Chairman | 2023 | 112,500 | 112,500 | ||||
| Barry Rubens | 2024 | 180,000 | 180,000 | ||||
| Chief Executive Officer | 2023 | 112,500 | 112,500 | ||||
| Taylor Jones | 2024 | 180,000 | 180,000 | ||||
| President and Chief Technology Officer | 2023 | 150,000 | 150,000 |
Deferred Compensation
In December 2020, our named executive officers agreed to defer a portion of the compensation they earned from December 2020 to November 2022. On August 20, 2024, we entered into the Deferred Compensation Agreement to provide a mechanism for repayment. As of June 30, 2024, our named executive officers were owed the following amounts, which includes interest at a rate of 3.25% on the cumulative balances from February 1, 2022:
| · | Mr. McDonough - $173,126.60 |
| · | Mr. Rubens - $173,126.60 |
| · | Mr. Jones - $193,752.79 |
Beginning on June 1, 2024, we agreed to repay a minimum of $2,500 per month to our executive officers until all outstanding deferred compensation has been paid in full. We may prepay the outstanding deferred compensation in whole or in part or increase the minimum monthly payments at our discretion, subject to the approval of our independent directors. Any prepayment or monthly increase will apply equally to each of our named executive officers.
On June 19, 2025, we amended the Deferred Compensation Agreement (the “Deferred Compensation Amendment”). Pursuant to the Deferred Compensation Amendment, if we complete this offering, we will prepay all arrearages owed under the Deferred Compensation Agreement within 30 days of the closing of this offering.
Employment Agreements
We did not have employment agreements with our named executive officers in the year ended December 31, 2024.
Consulting Agreement – Baron Hunter Group, LLC
Effective upon the closing date of this offering, we will be a party to a consulting agreement (the “Consulting Agreement”) with Baron Hunter Group, LLC (the “Consultant”), pursuant to which we retained the Consultant to provide services to us through Mr. McDonough. Pursuant to the Consulting Agreement, Mr. McDonough will serve as our Executive Chairman and provide certain other services for a term of two years. From January 1, 2025 through December 31, 2025, the Consultant will be compensated at a rate of $180,000 per annum for the services provided under the Consulting Agreement. Beginning January 1, 2026, the Consultant will be compensated at a rate of $240,000 per annum for the services provided under the Consulting Agreement. If, during the term, we prepay all amounts to be paid to the Consultant for the services provided under the Consulting Agreement, we can terminate the Consulting Agreement upon written notice to the Consultant.
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Executive Employment Agreement – Barry Rubens
Effective upon the closing date of this offering, we will be a party to an executive employment agreement with Mr. Rubens (the “Rubens Agreement”). Pursuant to the Rubens Agreement, Mr. Rubens agreed to serve as Chief Executive Officer for a term of two years (the “Term”). From January 1, 2025 to December 31, 2025, Mr. Rubens is entitled to an annual base salary of $180,000 and is eligible to receive an annual cash bonus (the “Annual Performance Bonus”) based on performance and achievement of goals and objectives as defined by the compensation committee after consultation with management. Beginning January 1, 2026, Mr. Rubens is entitled to an annual base salary of $240,000 and is eligible to receive an Annual Performance Bonus based on performance and achievement of goals and objectives as defined by the compensation committee. The amount of the Annual Performance Bonus, if any, shall be determined by the compensation committee in its sole discretion. In addition, during the Term, Mr. Rubens is entitled to participate in our benefit plans and programs and is eligible to participate in any stock incentive plan.
Executive Employment Agreement – Taylor Jones
Effective upon the closing date of this offering, we will be a party to an executive employment agreement with Mr. Jones (the “Jones Agreement”). Pursuant to the Jones Agreement, Mr. Jones agreed to serve as President and Chief Technology Officer for a term of three years. From January 1, 2025 to December 31, 2025, Mr. Jones is entitled to an annual base salary of $180,000 and is eligible to receive an Annual Performance Bonus based on performance and achievement of goals and objectives as defined by the compensation committee after consultation with management. Beginning January 1, 2026, Mr. Jones is entitled to an annual base salary of $240,000 and is eligible to receive an Annual Performance Bonus based on performance and achievement of goals and objectives as defined by the compensation committee. The amount of the Annual Performance Bonus, if any, shall be determined by the compensation committee in its sole discretion. In addition, during the Jones Agreement, Mr. Jones is entitled to participate in our benefit plans and programs and is eligible to participate in any stock incentive plan.
Potential Payments Upon Termination or Change in Control
Under the Rubens Agreement and the Jones Agreement, if the executive is terminated for cause, resigns without good reason, or his employment ends due to his death or permanent disability, he will be entitled to any earned but unpaid base salary plus accrued benefits earned through the date of termination. Under the Rubens Agreement, in the event of Mr. Ruben’s termination for a reason other than for cause or if Mr. Rubens terminates voluntarily under one or more of the specified circumstances that constitute a good reason, he will be entitled to severance payments in the amount of his base salary for a period from the effective date of termination until the end of the Term. Under the Jones Agreement, in the event of Mr. Jones’ termination for a reason other than for cause or if Mr. Jones terminates voluntarily under one or more of the specified circumstances that constitute a good reason, he will be entitled to severance payments in the amount of his base salary for a period of one year after the effective date of termination. The severance payments are expressly conditioned upon the executive delivering to us, and not revoking within the twenty-one days following the date of termination, a general release of all claims in a form to be provided by and acceptable to us.
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Messrs. Rubens and Jones will be subject to non-competition and non-solicitation provisions under their employment agreements effective for the period of one year following the executive’s termination of employment.
Outstanding Equity Incentive Awards At Fiscal Year-End
There were no stock awards held by our named executive officers as of December 31, 2024.
Stock Incentive Plan
We intend to establish a stock incentive plan prior to the effectiveness of the registration statement of which this prospectus forms a part.
Policies and Practices Related to the Grant of Certain Equity Awards
We adopted a policy governing the timing of awards under any stock incentive plan in relation to the disclosure of material non-public information that will become effective upon the effectiveness of this registration statement.
Director Compensation
Since inception, none of our directors has received any compensation solely for their service as director.
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CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
The following sets forth a summary of transactions since January 1, 2023, or any currently proposed transaction, in which the Company was to be a participant and the amount involved exceeded or exceeds $45,670 (1% of the average of our total assets of the Company for the two most recently completed fiscal years) and in which any related person had or will have a direct or indirect material interest.
Since inception, we have relied on debt financing from our current and former directors for some of our working capital.
Endurance Financial, LLC Transactions
We have a financing arrangement with Endurance, an entity of which Messrs. McDonough and Josephs are founders and one-third members. Endurance is the manager of Endurance Opportunities.
On April 1, 2024, we entered into the Fixed Rate Loan Agreement with Endurance Opportunities, pursuant to which Endurance Opportunities loaned us $1,000,000. The Fixed Rate Loan Agreement accrues interest at a rate of 18% per annum and has a scheduled repayment date of May 1, 2029. As of June 30, 2025, we have paid $307,211 in principal and interest and owe $851,852 under Fixed Rate Loan Agreement. We expect to pay all or a portion of the Fixed Rate Loan Agreement with the proceeds of this offering. See “Use of Proceeds.”
On November 12, 2024, we issued a promissory note in favor of Endurance Opportunities in the amount of $250,000 (the “November Note”). The November Note accrues interest at a rate of 16.5% per annum and has a term of 18 months. As of June 30, 2025, we have paid $26,241 in interest and owe $250,000 under the November Note. Our repayment of the November Note is secured by our accounts receivable.
On March 1, 2025, we issued a promissory note in favor of Endurance in the amount of $500,000 (the “March 1 Note”). The March 1 Note has a term of 18 months. On March 25, 2025, we issued a promissory note in favor of Endurance in the amount of $500,000 (the “March 25 Note,” and together with the March 1 Note, the “Endurance Notes”). The March 25 Note had an initial term of 90 days. On July 7, 2025, we entered into a note and loan extension and modification agreement (the “Extension Agreement”) with Endurance, pursuant to which the term of the March 25 Note was extended for an additional 90-day period until September 25, 2025. Except as extended by the Extension Agreement, the terms of the March 25 Note remain in full force and effect. The Endurance Notes accrue interest at a rate of 16.5% and our repayment of the Endurance Notes is secured by our accounts receivable. As of June 30, 2025, we have paid $48,125 in interest and owe $1,000,000 under the Endurance Notes.
We have also entered into the following network service participation agreements (each, a “Participation Agreement”) with Endurance Opportunities, pursuant to which we sold an undivided interest in the revenue from certain network service agreements in exchange for the amounts specified in the table below. The Participation Agreements accrue interest at a rate of 16.5% per annum with respect to any payments not made when due. If Endurance Opportunities’ interest in a network service agreement is still outstanding 24 months after the service activation date under the network service agreement, Endurance Opportunities has the option to require us to repurchase all outstanding principal and accrued and unpaid interest and fees due with respect to Endurance Opportunities’ pro rata interest in the network service agreement. The following table outlines the terms of each of the outstanding Participation Agreements as of June 30, 2025:
| Date | Original Purchase Amount |
Total
Payment Obligation |
Remaining
Principal Amount to be Paid |
Final Payment Date | |||||||||||
| 1/1/2024 | $ | 236,775 | $ | 387,496 | $ | 177,515 |
6/15/2030 | ||||||||
| 6/1/2024 | $ | 550,000 | $ | 817,821 | $ | 440,000 |
6/1/2029 | ||||||||
| 7/12/2024 | $ | 160,000 | $ | 237,405 | $ | 130,667 |
7/1/2029 | ||||||||
| 7/12/2024 | $ | 155,000 | $ | 229,986 | $ | 123,083 |
7/1/2029 | ||||||||
| 7/12/2024 | $ | 50,000 | $ | 74,189 | $ | 42,500 |
7/1/2029 | ||||||||
| 9/23/2024 | $ | 330,000 | $ | 488,236 | $ | 280,452 |
10/1/2029 | ||||||||
Subsequent to June 30, 2025, on July 7, 2025 we entered into an additional Participation Agreement with Endurance Opportunities for an original purchase amount of $278,498 and a total payment obligation of $410,805 with a final payment date of July 1, 2030.
Motherlode, LLC Transactions
On April 12, 2024, we entered into a stock repurchase agreement (the “Stock Repurchase Agreement”) with Motherlode, pursuant to which we agreed to repurchase 250,000 shares of Series Seed Preferred Shares held by Motherlode at the original purchase price of $4.00 per share, in exchange for the issuance of a promissory note in favor of Motherlode in the amount of $1.0 million (the “Promissory Note”). The Promissory Note accrues interest at a rate of 6% per annum and has a term of 60 months. As of June 30, 2025, we have paid $289,991 in principal and interest and owe $777,621 in principal and $92,658 in interest under the Promissory Note. The Promissory Note is secured by personal guarantees of Messrs. McDonough, Jones, Josephs and Rubens. Charles Brady and Mark Holt, former directors who resigned from our Board on April 12, 2024, are members of Motherlode.
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Pursuant to the Stock Repurchase Agreement, we also agreed pay to Apogee Telecom, Inc. (“Apogee”), all amounts due under (i) a promissory note dated December 6, 2019, in the amount of $800,000; (ii) an installment payment agreement date February 28, 2023, in the amount of $412,742; and (iii) a hardware invoice in the amount of $37,837.80 received on March 7, 2024 (the “Apogee Payments”). We used the loan amount received under the Fixed Rate Loan Agreement to fund the Apogee Payments. Messrs. Brady and Holt were owners of Apogee.
Put-Call Agreement
On August 20, 2024, we entered into a put-call agreement (the “Put-Call Agreement”) with Baron Hunter Group, LLC and Steele Creek Partners, LLC to grant certain put and call rights in connection with this offering. The managing member of Baron Hunter Group, LLC and Steele Creek Partners, LLC is Mr. McDonough and Mr. Rubens, respectively. On August 11, 2025, we entered into an amendment to the Put-Call Agreement (the “Put-Call Amendment”) with Baron Hunter Group, LLC and Steele Creek Partners, LLC to reduce the put and call rights granted in connection with this offering. Pursuant to the Put-Call Amendment, Baron Hunter Group, LLC and Steele Creek Partners, LLC were granted the right to sell to us, up to a $1,000,000 in common stock at a discount of 10% below the offering price, exercisable for a period of 10 business days following the closing date of this offering. We were granted the right, exercisable by a majority of our disinterested directors, to purchase up to a maximum of $1,000,000 in common stock from each of Baron Hunter Group, LLC and Steele Creek Partners, LLC at a premium of 10% in excess of the offering price for a period of 10 business days following the closing date of this offering.
License Agreement
On August 20, 2024, we entered into the License Agreement with Mr. McDonough, pursuant to which Mr. McDonough granted us an exclusive license to use the tradename “Elauwit” and the service marks, domain names and goodwill associated therewith. As consideration for the License Agreement, we paid Mr. McDonough a one-time fee of $50,000.
Policies and Procedures for Transactions With Related Persons
Prior to this offering, we have not had a formal policy regarding approval of transactions with related parties. In connection with this offering, we adopted a written policy, that will become effective upon the effectiveness of this registration statement, and provides that our executive officers, directors, beneficial owners of more than 5% of any class of our capital stock, and any members of the immediate family of any of the foregoing persons (a “related party”) are not permitted to enter into a related party transaction with us without the prior consent of our Audit Committee. Any request for us to enter into a transaction with a related party in which the related party would have a direct or indirect interest must first be presented to our Audit Committee for review, consideration, and approval. In approving or rejecting any such proposal, our Audit Committee will consider the relevant facts and circumstances of the transaction available to it, including, but not limited to, whether the transaction is on terms no less favorable than terms generally available to an unrelated third party or to employees under the same or similar circumstances, and the extent of the related party’s interest in the transaction. The written policy will require that, in determining whether to approve or reject a related person transaction, our Audit Committee must consider, in light of known circumstances, whether the transaction is in, or is not inconsistent with, our best interests and those of our stockholders, as our Audit Committee determines in good faith.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following tables set forth certain information regarding the beneficial ownership of our common stock as of August 29, 2025, and as adjusted to reflect the sale of common stock being offered in this offering by:
| · | each person, or group of affiliated persons, known to us to own beneficially more than 5% of our common stock; | |
| · | each of our current directors; | |
| · | each of our named executive officers; and | |
| · | all of our current directors and executive officers as a group. |
The information in the following table has been presented in accordance with the rules of the SEC. Under such rules, beneficial ownership of a class of capital stock includes any shares of such class as to which a person, directly or indirectly, has or shares voting power or investment power and also any shares as to which a person has the right to acquire such voting or investment power within 60 days through the exercise of any stock option, warrant or other right. If two or more persons share voting power or investment power with respect to specific securities, each such person is deemed to be the beneficial owner of such securities. Except as we otherwise indicate below and under applicable community property laws, we believe that the beneficial owners of the common stock listed below, based on information they have furnished to us, have sole voting and investment power with respect to the shares shown. Except as otherwise indicated, each stockholder named in the table is assumed to have sole voting and investment power with respect to the number of shares listed opposite the stockholder’s name.
The calculations of beneficial ownership in this table are based on 5,000,000 shares of common stock outstanding prior to the offering, and 1,500,000 shares of common stock to be issued in this offering.
| Shares Beneficially Owned Prior to this Offering | Shares Beneficially Owned Following this Offering | |||||||||||||||
| Name and Address of Beneficial Owner(1) | Shares | % | Shares | % | ||||||||||||
| Executive Officers and Directors: | ||||||||||||||||
| Daniel McDonough, Jr.(2) | 945,515 | 18.9 | % | 945,515 | 14.5 | % | ||||||||||
| Barry Rubens(3) | 796,852 | 15.9 | 796,852 | 12.3 | ||||||||||||
| Taylor Jones(4) | 796,852 | 15.9 | 796,852 | 12.3 | ||||||||||||
| Scott Barton(5) | 114,388 | 2.3 | 114,388 | 1.8 | ||||||||||||
| Elbert Gene Basolis Jr. | 170,471 | 3.4 | 170,471 | 2.6 | ||||||||||||
| Frederick Berk | 62,169 | 1.2 | 62,169 | 1.0 | ||||||||||||
| Leslie Goodman(6) | 103,760 | 2.1 | 103,760 | 1.6 | ||||||||||||
| Glenn Josephs | 141,388 | 2.8 | 141,388 | 2.2 | ||||||||||||
| David O’Brien(7) | 275,170 | 5.5 | 275,170 | 4.2 | ||||||||||||
| Roger Shannon | — | * | — | * | ||||||||||||
| Directors and executive officers as a group (12 individuals) | 3,580,314 | 71.6 | % | 3,580,314 | 55.1 | % | ||||||||||
| 5% or Greater Stockholders: | ||||||||||||||||
| Baron Hunter Group, LLC and Daniel McDonough, Jr. | 883,346 | 17.7 | % | 883,346 | 13.6 | % | ||||||||||
| Steele Creek Partners, LLC and Barry Rubens | 796,852 | 15.9 | 796,852 | 12.3 | ||||||||||||
| Minotaur Networks, LLC and Taylor Jones | 796,852 | 15.9 | 796,852 | 12.3 | ||||||||||||
| Maxim Cerith LLC, Lawrence C. Glassberg and Ritesh Veera(8) | 750,000 | 15.0 | 750,000 | 11.5 | ||||||||||||
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| * | Represents less than 1% |
| (1) | Unless otherwise indicated, the address of each individual is c/o Elauwit Connection, Inc., 1700 Alta Vista Drive, Suite 130, Columbia, SC 29223. |
| (2) | Includes 883,346 shares of common stock held by Baron Hunter Group, LLC and 62,169 shares of common stock held by an entity, both of which Mr. McDonough is the managing member and has sole voting and investment power. |
| (3) | Includes 796,852 shares of common stock held by Steele Creek Partners, LLC, of which Mr. Rubens is the managing member and has sole voting and investment power. |
| (4) | Includes 796,852 shares of common stock held by Minotaur Networks, LLC, of which Mr. Jones is the managing member and has sole voting and investment power. |
| (5) | Includes 114,388 shares of common stock held by an entity of which Mr. Barton is a 10% owner and has shared voting and investment power. |
| (6) | Includes 103,760 shares of common stock held by an entity of which Mr. Goodman is 1% owner and has shared voting and investment power. Mr. Goodman disclaims beneficial ownership in the shares of common stock held by such entity beyond his 1% ownership. |
| (7) | Includes 62,169 shares of common stock held by an entity of which Mr. O’Brien holds sole voting and investment power and 213,001 shares of common stock held by an entity, of which Mr. O’Brien is the managing director and holds sole voting and investment power. |
| (8) | The address of Maxim Cerith LLC is 300 Park Avenue, 16th Floor, New York, NY 10022. |
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General
The following description summarizes the most important terms of our capital stock. Our certificate of incorporation authorizes the issuance of up to 14,900,000 shares of common stock and up to 100,000 shares of preferred stock. As of the date of this prospectus, there are 5,000,000 shares of common stock outstanding, which were held by approximately 27 stockholders of record, and no shares of preferred stock are outstanding. Our certificate of incorporation and bylaws are filed as exhibits to the registration statement of which this prospectus is a part. The following descriptions of our capital stock and provisions of our certificate of incorporation, our bylaws, and provisions of the Delaware General Corporation Law (“DGCL”) are summaries and are qualified by reference to our certificate of incorporation and our bylaws that will be in effect upon the completion of this offering, as well as to the relevant provisions of the DGCL.
Prior to August 14, 2025, our certificate of incorporation provided for two classes of common stock: Class A common stock and Class B common stock. Class A common stock and Class B common stock had the same rights, preferences, privileges expect for voting and conversion rights. On August 8, 2025, all of our Class B common stockholders elected to convert their shares into Class A common stock at a ratio of one share of Class B common stock for one share of Class A common stock. On August 14, 2025, we amended and restated our certificate of incorporation to remove the dual class common stock structure and rename our Class A common stock as common stock.
Common Stock
Each holder of common stock is entitled to one vote for each share of common stock held on all matters submitted to a vote of the stockholders, including the election of directors. Our certificate of incorporation and bylaws do not provide for cumulative voting rights.
The holders of our common stock are entitled to receive dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. In the event of our liquidation, dissolution or winding up, holders of common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities.
Holders of our common stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to the common stock.
Preferred Stock
Our Board is authorized, without vote or action by our stockholders, to issue from time to time up to an aggregate of 100,000 shares of preferred stock in one or more series and to fix or alter the powers, designations, preferences, rights and any qualifications, limitations or restrictions of the shares of each of these series, including, if applicable, the dividend rights and preferences, conversion rights, voting rights, rights and terms of redemption, including without limitation sinking fund provisions, redemption price or prices, liquidation rights and preferences, and the number of shares constituting any series. The issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of us without further action by our stockholders and may adversely affect the dividend, liquidation and voting and other rights of the holders of common stock. The issuance of preferred stock with voting and conversion rights may adversely affect the voting power of the holders of common stock, including the loss of voting control to others. We currently have no plans to issue any additional shares of preferred stock.
We believe that the ability to issue preferred stock without the expense and delay of a special stockholders’ meeting provides us with increased flexibility in structuring possible future financings and acquisitions, and in meeting other corporate needs that might arise. This also permits the Board to issue preferred stock containing terms which could impede the completion of a takeover attempt. This could discourage an acquisition attempt or other transaction which stockholders might believe to be in their best interests or in which they might receive a premium for their stock over the then market price of the stock.
Representative’s Warrants
The registration statement of which this prospectus is a part also registers for sale the Representative’s Warrants, as a portion of the underwriting compensation in connection with this offering. The Representative’s Warrants will be exercisable immediately for a five-year period after the effective date of this registration statement at an assumed exercise price of $11.50 per share (115% of the assumed public offering price in this offering). Please see “Underwriting—Representative’s Warrants” for a description of the warrants we have agreed to issue to Craig-Hallum, subject to the completion of the offering. Pursuant to FINRA Rule 5110(e)(1), such Represenative’s Warrants will be non-exercisable, and will therefore not be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such Representative’s Warrants, for a period of six (6) months after the date of the closing; provided, however, that the exceptions listed under FINRA Rule 5110(e)(2) shall apply.
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SAFE (Simple Agreement for Future Equity)
In January 2025, we issued $1.0 million in a SAFE in a transaction exempt from registration under the Securities Act. The SAFE does not entitle the holder to the rights of our stockholders, such as voting or dividend rights and the investor’s right to receive its cash-out amount is on par with payments for common stock in the event of our dissolution. The SAFE does not give us the right to repurchase the SAFE at our option and will not terminate until we achieve a liquidity event. Accordingly, in connection with this offering, we will either (i) pay the holder an amount in cash equal to the amount the holder invested in the SAFE offering or (ii) issue a number of shares of common stock to the holder equal to (a) the amount of their investment divided by (b) the public offering price multiplied by the discount rate of 85%, whichever is greater. If the SAFE is converted into shares of common stock, 117,647 shares of common stock would be issuable to the SAFE holder, based on an assumed public offering price of $10.00.
Put-Call Agreement
On August 20, 2024, we entered into the Put-Call Agreement with Baron Hunter Group, LLC and Steele Creek Partners, LLC to grant certain put and call rights in connection with this offering. On August 11, 2025, we entered into the Put-Call Amendment with Baron Hunter Group, LLC and Steele Partners, LLC to reduce the put and call rights granted in connection with this offering. Pursuant to the Put-Call Amendment, Baron Hunter Group, LLC and Steele Creek Partners, LLC were granted the right to sell to us, up to a $1,000,000 value of common stock at a discount of 10% below the offering price, exercisable for a period of 10 business days following the closing date of this offering. We were granted the right, exercisable by a majority of our disinterested directors, to purchase up to a maximum of $1,000,000 in common stock from each of Baron Hunter Group, LLC and Steele Creek Partners, LLC at a premium of 10% in excess of the offering price for a period of 10 business days following the closing date of this offering.
Anti-Takeover Effects of Certain Provisions in our Certificate and Bylaws
Certain provisions of our certificate of incorporation, our bylaws and the DGCL may discourage or make more difficult a takeover attempt that a stockholder might consider to be in his, her or its best interest. These provisions may also adversely affect the prevailing market price for shares of our common stock. We believe that the benefits of increased protection give us the potential ability to negotiate with the proponent of an unsolicited proposal to acquire or restructure us, which may result in an improvement of the terms of any such proposal in favor of our stockholders, and outweigh any potential disadvantage of discouraging those proposals.
Authorized but Unissued Shares of Capital Stock
Our authorized but unissued shares of common stock will be available for future issuance without stockholder approval, subject to the applicable provisions of the DGCL and rules of Nasdaq. These additional shares may be used for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. One of the effects of the existence of authorized but unissued common stock may be to enable our Board to issue shares to persons friendly to current management, which issuance could render more difficult or discourage an attempt to obtain control of the Company by means of a merger, tender offer, proxy contest or otherwise, and thereby protect the continuity of our management and possibly deprive our stockholders of opportunities to sell their shares of common stock at a price higher than the prevailing market price.
Exclusive Forum
The certificate of incorporation provides that, unless we consent to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of fiduciary duty owed by any of our directors, officers, or other employee to us or to our stockholders, (iii) any action asserting a claim against us arising pursuant to any provision of the DGCL, the certificate of incorporation or the bylaws or (iv) any action asserting a claim governed by the internal affairs doctrine. However, this provision does not apply to suits brought to enforce a duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. In addition, the Court of Chancery of the State of Delaware and the federal district courts will have concurrent jurisdiction for the resolution of any suit brought to enforce any duty or liability created by the Securities Act. Notwithstanding the foregoing, the inclusion of such provisions in the certificate of incorporation will not be deemed to be a waiver by us or our stockholders of the obligation to comply with federal securities laws, rules and regulations.
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Although we believe these provisions benefit the Company by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, these provisions may have the effect of discouraging lawsuits against the Company’s directors and officers. Furthermore, the enforceability of choice of forum provisions in other companies’ certificates of incorporation has been challenged in legal proceedings, and it is possible that a court could find these types of provisions to be inapplicable or unenforceable.
Advance Notice of Stockholder Proposals and Nominations
Our bylaws include an advance notice procedure for stockholders to nominate candidates for election as directors or to bring other business before any meeting of our stockholders. The stockholder notice procedure provides that only persons who are nominated by, or at the direction of, the Board, or by a stockholder who has given timely written notice prior to the meeting at which directors are to be elected, will be eligible for election as directors and that, at a stockholders’ meeting, only such business may be conducted as has been brought before the meeting by, or at the direction of, the Board or by a stockholder who has given timely written notice of such stockholder’s intention to bring such business before such meeting.
Under the stockholder notice procedure, for notice of stockholder nominations or other business to be made at a stockholders’ meeting to be timely, such notice must be received by us not earlier than the close of business on the 120th calendar day and not later than the close of business on the 90th calendar day prior to the one-year anniversary of the immediately preceding year’s annual meeting or as otherwise provided in the bylaws.
A stockholder’s notice to us proposing to nominate a person for election as a director or proposing other business must contain certain information specified in the bylaws, including the identity and address of the nominating stockholder, a representation that the stockholder is a record holder of our stock entitled to vote at the meeting and information regarding each proposed nominee or each proposed matter of business that would be required under the federal securities laws to be included in a proxy statement soliciting proxies for the proposed nominee or the proposed matter of business.
The stockholder notice procedure may have the effect of precluding a contest for the election of directors or the consideration of stockholder proposals if the proper procedures are not followed, and of discouraging or deterring a third party from conducting a solicitation of proxies to elect its own slate of directors or to approve its own proposal, without regard to whether consideration of such nominees or proposals might be harmful or beneficial to us and our stockholders.
Classified Board
Our certificate of incorporation provides that the Board shall be divided into three classes, with the intention that each class consist of approximately one-third of the total number of our directors. At each annual meeting of stockholders, each of the successors elected to replace the directors of a class whose term expires at such annual meeting shall be elected to hold office until the third annual meeting next succeeding their election and until their respective successor shall have been duly elected and qualified. Our stockholders elect only one class of directors each year. We believe that classification of our Board helps to assure the continuity of our business strategies and policies. The classified board provision could have the effect of making the replacement of incumbent directors more time consuming and difficult. At least two annual meetings of our stockholders generally are required to effect a change in a majority of our Board.
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Restrictions on Call of Special Meetings
Our bylaws provide that special meetings of stockholders can only be called by the Board, the Board Chair, the Chief Executive Officer or by the Secretary of the Company upon the written request of the holders of at least 50% of the shares of common stock issued and outstanding and entitled to vote at the meeting. These provisions may delay the ability of our stockholders to force consideration of a proposal or for stockholders controlling a majority of our capital stock to take any action, including the removal of directors.
No Cumulative Voting
The certificate of incorporation does not authorize cumulative voting for the election of directors.
Transfer Agent
The transfer agent and registrar for our common stock is Colonial Stock Transfer Company, Inc.
Potential Listing
We have applied to list our shares of common stock on Nasdaq under the symbol “ELWT.” If our listing application is approved, we expect to list our common stock on Nasdaq upon consummation of the offering. No assurance can be given that our listing application will be approved or that our common stock will be listed on Nasdaq. This offering will occur only if Nasdaq approves the listing of our common stock.
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SHARES AVAILABLE FOR FUTURE SALE
Future sales of substantial amounts of our common stock in the public market could adversely affect prevailing market prices of our common stock from time to time and could impair our future ability to raise equity capital in the future. Furthermore, because only a limited number of shares will be available for sale shortly after this offering due to certain contractual and legal restrictions on resale described below, sales of substantial amounts of our common stock in the public market after such restrictions lapse, or the anticipation of such sales, could adversely affect the prevailing market price of our common stock and our ability to raise equity capital in the future.
Based upon the number of shares outstanding as of August 29, 2025, upon the closing of this offering, we will have outstanding, an aggregate of 6,617,647 shares of common stock, assuming the conversion of the SAFE but no exercise of the underwriters’ over-allotment option. All of the shares sold in this offering by us will be freely tradable without restrictions or further registration under the Securities Act, unless held by our affiliates, as that term is defined under Rule 144 under the Securities Act, or subject to lock-up agreements. The remaining shares of common stock outstanding upon the closing of this offering are restricted securities as defined in Rule 144. Restricted securities may be sold in the U.S. public market only if registered or if they qualify for an exemption from registration, including by reason of Rule 144 under the Securities Act. These remaining shares will generally become available for sale in the public market as follows:
| · | no shares will be eligible for sale in the public market on the date of this prospectus; and | |
| · | 4,330,314 shares will be eligible for sale in the public market upon expiration of lock-up agreements 181 days after the closing date of this offering, subject in certain circumstances to the volume, manner of sale and other limitations of Rule 144. See “Underwriting — Lock-up Agreements” for more information. |
We may issue shares of common stock from time to time to raise additional funds or as consideration for future acquisitions, investments or other corporate purposes. In the event that any such financing, acquisition, investment or other transaction is significant, the number of shares of common stock that we may issue may in turn be significant. We may also grant registration rights covering those shares of common stock issued in connection with any such transaction.
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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material U.S. federal income tax considerations relating to the purchase, ownership and disposition of our shares of common stock, but is for general information purposes only and does not purport to be a complete analysis of all the potential tax considerations. This summary is based upon the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), existing and proposed U.S. Treasury regulations promulgated thereunder, administrative rulings and judicial decisions, all as of the date hereof. These authorities may be changed, possibly retroactively, so as to result in U.S. federal income and estate tax consequences different from those set forth below. There can be no assurance that the Internal Revenue Service (the “IRS”) will not challenge one or more of the tax consequences described herein, and we have not obtained, and do not intend to obtain, an opinion of counsel or ruling from the IRS with respect to the U.S. federal income tax considerations relating to the purchase, ownership or disposition of our securities.
This summary does not address any alternative minimum tax considerations, any considerations regarding the tax on net investment income, or the tax considerations arising under the laws of any state, local or non-U.S. jurisdiction, or under any non-income tax laws, including U.S. federal gift and estate tax laws, except to the limited extent set forth below. In addition, this summary does not address tax considerations applicable to an investor's particular circumstances or to investors that may be subject to special tax rules, including, without limitation:
| · | banks, insurance companies or other financial institutions; | |
| · | tax-exempt organizations or governmental organizations; | |
| · | regulated investment companies and real estate investment trusts; | |
| · | controlled foreign corporations, passive foreign investment companies and corporations that accumulate earnings to avoid U.S. federal income tax; | |
| · | brokers or dealers in securities or currencies; | |
| · | traders in securities that elect to use a mark-to-market method of accounting for their securities holdings; | |
| · | persons that own, or are deemed to own, more than five percent of our capital stock (except to the extent specifically set forth below); | |
| · | tax-qualified retirement plans; | |
| · | certain former citizens or long-term residents of the United States; | |
| · | partnerships or entities or arrangements classified as partnerships for U.S. federal income tax purposes and other pass-through entities (and investors therein); | |
| · | persons who hold our securities as a position in a hedging transaction, “straddle,” “conversion transaction” or other risk reduction transaction or integrated investment; | |
| · | persons who do not hold our securities as a capital asset within the meaning of Section 1221 of the Code; or | |
| · | persons deemed to sell our securities under the constructive sale provisions of the Code. |
In addition, if a partnership (or entity or arrangement classified as a partnership for U.S. federal income tax purposes) holds our securities, the tax treatment of a partner generally will depend on the status of the partner and upon the activities of the partnership. Accordingly, partnerships that hold our securities, and partners in such partnerships, should consult their tax advisors.
You are urged to consult your own tax advisors with respect to the application of the U.S. federal income tax laws to your particular situation, as well as any tax consequences of the purchase, ownership and disposition of our common stock arising under the U.S. federal estate or gift tax laws or under the laws of any state, local, non-U.S., or other taxing jurisdiction or under any applicable tax treaty.
Consequences to U.S. Holders
The following is a summary of the U.S. federal income tax consequences that will apply to a U.S. holder of our securities. For purposes of this discussion, you are a U.S. holder if, for U.S. federal income tax purposes, you are a beneficial owner of our securities, other than a partnership, that is:
| · | an individual citizen or resident of the United States; | |
| · | a corporation or other entity taxable as a corporation created or organized in the United States or under the laws of the United States, any State thereof or the District of Columbia; | |
| · | an estate whose income is subject to U.S. federal income tax regardless of its source; or |
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| · | a trust (x) whose administration is subject to the primary supervision of a U.S. court and which has one or more "United States persons" (within the meaning of Section 7701(a)(30) of the Code) who have the authority to control all substantial decisions of the trust or (y) which has made a valid election to be treated as a "United States person." |
Distributions
As described in the section titled "Dividend Policy," we have never declared or paid cash dividends on our common stock and do not anticipate paying any dividends on our common stock in the foreseeable future. However, if we do make distributions on our common stock, those payments will constitute dividends for U.S. tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. To the extent those distributions exceed both our current and our accumulated earnings and profits, the excess will constitute a return of capital and will first reduce your basis in our common stock, but not below zero, and then will be treated as gain from the sale of stock as described below under "Gain Sale, Exchange or Other Taxable Disposition of Common Stock."
Dividend income may be taxed to an individual U.S. holder at rates applicable to long-term capital gains, provided that a minimum holding period and other limitations and requirements are satisfied. Any dividends that we pay to a U.S. holder that is a corporation will qualify for a deduction allowed to U.S. corporations in respect of dividends received from other U.S. corporations equal to a portion of any dividends received, subject to generally applicable limitations on that deduction. U.S. holders should consult their own tax advisors regarding the holding period and other requirements that must be satisfied in order to qualify for the reduced tax rate on dividends or the dividends-received deduction.
Gain on Sale, Exchange or Other Taxable Disposition of Common Stock
A U.S. holder will generally recognize capital gain or loss on the sale, exchange or other taxable disposition of our common stock. The amount of gain or loss will equal the difference between the amount realized on the sale and such U.S. holder's tax basis in such common stock. The amount realized will include the amount of any cash and the fair market value of any other property received in exchange for such common stock. Gain or loss will be long-term capital gain or loss if the U.S. holder has held the common stock for more than one year. Long-term capital gains of non-corporate U.S. holders are generally taxed at preferential rates. The deductibility of capital losses is subject to certain limitations.
Consequences to Non-U.S. Holders
Gain on Sale, Exchange or Other Taxable Disposition of Common Stock
Subject to the discussion below regarding backup withholding and foreign accounts, a non-U.S. holder generally will not be required to pay U.S. federal income tax on any gain realized upon the sale, exchange or other taxable disposition of our common stock unless:
| · | the gain is effectively connected with the non-U.S. holder's conduct of a U.S. trade or business (and, if required by an applicable income tax treaty, the gain is attributable to a permanent establishment or fixed base maintained by the non-U.S. holder in the United States); | |
| · | the non-U.S. holder is a non-resident alien individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met; or | |
| · | shares of our common stock, as applicable, constitute U.S. real property interests by reason of our status as a "United States real property holding corporation" (a USRPHC) for U.S. federal income tax purposes at any time within the shorter of the five-year period preceding the non-U.S. holder's disposition of, or the non- U.S. holder's holding period for, our common stock, as applicable. |
We believe that we are not currently and will not become a USRPHC for U.S. federal income tax purposes, and the remainder of this discussion so assumes. However, because the determination of whether we are a USRPHC depends on the fair market value of our U.S. real property relative to the fair market value of our other business assets, there can be no assurance that we will not become a USRPHC in the future. Even if we become a USRPHC, however, as long as our common stock is regularly traded on an established securities market, such common stock will be treated as U.S. real property interests only if the non-U.S. holder actually or constructively hold more than five percent of such regularly traded common stock at any time during the shorter of the five-year period preceding the non-U.S. holder's disposition of, or the non-U.S. holder's holding period for, our common stock.
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If the non-U.S. holder is described in the first bullet above, it will be required to pay tax on the net gain derived from the sale, exchange or other taxable disposition under regular graduated U.S. federal income tax rates, and a corporate non-U.S. holder described in the first bullet above also may be subject to the branch profits tax at a rate of 30%, or such lower rate as may be specified by an applicable income tax treaty. An individual non-U.S. holder described in the second bullet above will be required to pay a flat 30% tax (or such lower rate specified by an applicable income tax treaty) on the gain derived from the sale, exchange or other taxable disposition, which gain may be offset by U.S. source capital losses for the year (provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses). Non-U.S. holders should consult their own tax advisors regarding any applicable income tax or other treaties that may provide for different rules.
Federal Estate Tax
Shares of common stock beneficially owned by an individual who is not a citizen or resident of the United States (as defined for U.S. federal estate tax purposes) at the time of their death will generally be includable in the decedent's gross estate for U.S. federal estate tax purposes. Such shares, therefore, may be subject to U.S. federal estate tax, unless an applicable estate tax treaty provides otherwise.
Backup Withholding and Information Reporting
Generally, we must report annually to the IRS the amount of dividends paid to you, your name and address and the amount of tax withheld, if any. A similar report will be sent to you. Pursuant to applicable income tax treaties or other agreements, the IRS may make these reports available to tax authorities in your country of residence.
Payments of dividends on or of proceeds from the disposition of our common stock made to you may be subject to information reporting and backup withholding at a current rate of 28% unless you establish an exemption, for example, by properly certifying your non-U.S. status on an IRS Form W-8BEN or IRS Form W-8BEN-E or other applicable IRS Form W-8. Notwithstanding the foregoing, backup withholding and information reporting may apply if either we or our paying agent has actual knowledge, or reason to know, that you are a U.S. person.
Backup withholding is not an additional tax; rather, the U.S. federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund or credit may generally be obtained from the IRS, provided that the required information is furnished to the IRS in a timely manner.
Foreign Account Tax Compliance
The Foreign Account Tax Compliance Act ("FATCA") generally imposes withholding tax at a rate of 30% on dividends on and gross proceeds from the sale or other disposition of our common stock paid to a "foreign financial institution" (as specially defined under these rules), unless such institution enters into an agreement with the U.S. government to, among other things, withhold on certain payments and to collect and provide to the U.S. tax authorities substantial information regarding the U.S. account holders of such institution (which includes certain equity and debt holders of such institution, as well as certain account holders that are foreign entities with U.S. owners) or otherwise establishes an exemption. FATCA also generally imposes a U.S. federal withholding tax of 30% on dividends on and gross proceeds from the sale or other disposition of our common stock paid to a "non-financial foreign entity" (as specially defined for purposes of these rules) unless such entity provides the withholding agent with a certification identifying certain substantial direct and indirect U.S. owners of the entity, certifies that there are none or otherwise establishes an exemption. The withholding provisions under FATCA generally apply to dividends paid by us, and under current transitional rules are expected to apply with respect to the gross proceeds from a sale or other disposition of our securities on or after January 1, 2020. Under certain circumstances, a non-U.S. holder might be eligible for refunds or credits of such taxes. An intergovernmental agreement between the United States and an applicable foreign country may modify the requirements described in this paragraph. Non-U.S. holders should consult their own tax advisors regarding the possible implications of this legislation on their investment in our securities.
Each prospective investor should consult its own tax advisor regarding the particular U.S. federal, state and local and non-U.S. tax consequences of purchasing, owning and disposing of our common stock, including the consequences of any proposed changes in applicable laws.
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Craig-Hallum Capital Group LLC (“Craig-Hallum” or the “Representative”) is acting as the sole bookrunner in this offering. We intend to enter into an underwriting agreement with respect to the securities being offered. In connection with this offering and subject to certain terms and conditions, the underwriters named below will agree to purchase, and we will agree to sell, all of the securities in this offering to the underwriters.
| Underwriter | Number
of Shares |
|||
| Craig-Hallum Capital Group LLC | ||||
| Maxim Group LLC | ||||
| Total | 1,500,000 | |||
The Representative intends to agree to purchase all such securities other than those covered by the over-allotment option to purchase additional securities described below, if they purchase any such securities. The obligations of the Representative may be terminated upon the occurrence of certain events to be specified in the underwriting agreement. Furthermore, pursuant to the underwriting agreement, the underwriters’ obligations will be subject to customary conditions and representations and warranties contained in the underwriting agreement, such as receipt by the underwriters of officers' certificates and legal opinions.
The Representative will offer the securities, subject to prior sale, when, as and if issued to and accepted by them, subject to approval of legal matters by the underwriters’ counsel and other conditions specified in the underwriting agreement. The Representative will reserve the right to withdraw, cancel or modify offers to the public and to reject orders in whole or in part.
Option to Purchase Additional Securities
We have granted the Representative an option to purchase from us, at the public offering price, less the underwriting discounts and commissions, up to additional shares of common stock within 45 days from the date of this prospectus.
Indemnification
We have agreed to indemnify the Representative against certain liabilities, including certain liabilities under the Securities Act and certain liabilities arising from breaches of representations and warranties contained in the underwriting agreement, or to contribute to payments that the Representative may be required to make in respect of those liabilities.
Determination of Offering Price
The public offering price of our shares of common stock will be determined by negotiations between us and the Representative; among the factors considered in determining such public offering price are our historical performance and capital structure, prevailing market conditions, the valuation multiples of publicly traded companies that the Representative believes to be comparable to us and overall assessment of our business.
Representative’s Compensation
We have agreed to sell the common stock to the Representative at the public offering price of $ per share, which represents the public offering price of the common stock set forth on the cover page of this prospectus, less a seven percent (7.0%) underwriting discount. Craig-Hallum will be due no less than 80% of the underwriting discount and Maxim Group LLC will be due no less than 20% of the underwriting discount.
We have also agreed to reimburse the Representative for accountable legal expenses incurred by them connection with this transaction in the amount of up to an aggregate of $200,000. We estimate that the total expenses of the offering payable by us, excluding the total underwriting discount, will be approximately $900,000.
Representative’s Warrants
The Representative shall also receive warrants to purchase shares of our common stock as compensation for their services (the “Representative’s Warrants”). The number of Representative’s Warrants will equal seven percent (7.0%) of the total number of shares of common stock being sold in this offering. The Representative’s Warrants will be exercisable immediately and will expire five years after the effective date of the registration statement. The Representative’s Warrants will be exercisable at a price equal to 115% of the public offering price in connection with this offering and the Representative will receive certain registration rights in connection with the shares of common stock issued upon the exercise of Representative’s Warrants. Pursuant to FINRA Rule 5110(e)(1), such Represenative’s Warrants will be non-exercisable, and will therefore not be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such Representative’s Warrants, for a period of six (6) months after the date of the closing; provided, however, that the exceptions listed under FINRA Rule 5110(e)(2) shall apply.
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Discount, Commissions and Expenses
The Representative has advised us that it proposes to offer the common stock at the public offering price set forth on the cover page of this prospectus and to certain dealers at that price less a concession not in excess of $ per share of common stock. After this offering, the public offering prices and concession to dealers may be changed by C-H. No such change shall change the amount of proceeds to be received by us as set forth on the cover page of this prospectus. The shares of common stock are offered by the Representative as stated herein, subject to receipt and acceptance by it and subject to its right to reject any order in whole or in part. The Representative has informed us that it does not intend to confirm sales to any accounts over which it exercises discretionary authority.
The following table summarizes the underwriting discount we will pay to the Representative. These amounts are shown assuming both no exercise and full exercise of the over-allotment option.
| Per Share | Total
without Over- Allotment Option | Total
with Over- Allotment Option(1) | ||||||||||
| Public offering price | $ | $ | $ | |||||||||
| Total underwriting discount(2) | $ | $ | $ | |||||||||
| Proceeds to us, before expenses | $ | $ | $ | |||||||||
| (1) | Assumes the over-allotment option is exercised in full for shares of common stock. |
| (2) | Represents an underwriting discount equal to seven percent (7.0%) of the gross offering proceeds. |
Right of First Refusal
We have also granted Craig-Hallum and Maxim Group LLC a right of first refusal, subject to certain conditions, to act in the same capacity and fee economics in connection with any public or private offering of securities for the eighteen-month period following the closing of the offering.
Lock-Up Agreements and Trading Restrictions
We have agreed to a six (6) month "lock-up", and our executive officers, directors and any other holders of ten percent (10.0%) or more of the outstanding shares of common stock (each, a “lock-up holder”) have agreed to a six (6) month "lock-up", from the pricing of this offering that they beneficially own, including the issuance of common stock upon the exercise of currently outstanding convertible securities and options and options which may be issued. This means that, for a period of six (6) months, as applicable, following such pricing date, subject to the following exceptions, the lock-up holders may not offer, sell, pledge or otherwise dispose of these securities without the prior written consent of Craig-Hallum:
| · | any transfers made by the lock-up holders (a) as a bona fide gift to any member of their immediate family or to a trust the beneficiaries of which are exclusively a lock-up holder or members of the lock-up holder’s immediate family, (b) by will or intestate succession upon the death of the lock-up holder or (c) as a bona fide gift to a charity or educational institution; |
| · | transactions relating to the common stock or other securities convertible into or exercisable or exchangeable for common stock acquired in open market transactions after completion of this offering; |
| · | facilitating the establishment of a trading plan on behalf of the lock-up holder pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of common stock; |
| · | any transfers made by the lock-up holder to the Company to satisfy tax withholding obligations pursuant to the Company’s equity incentive plans or arrangements disclosed in this prospectus or to pay the exercise price of any options issued under any such plan or arrangement which expires during the lock-up; provided that any filing under Section 16 of the Exchange Act made in connection with such transfer shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described in this clause; |
| · | any transfers in connection with a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of common stock involving a change of control of the Company, provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the lock-up holder’s common stock shall remain subject to the restrictions included in the lock-up; |
| · | any distribution or other transfer by a partnership to its partners or former partners or by a limited liability company to its members or retired members or by a corporation to its stockholders or former stockholders or to any wholly-owned subsidiary of such corporation, or in each case to a controlled affiliate of the partnership, limited liability company or corporation; and |
| · | any transfers by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement. |
Representative has no present intention to waive or shorten the lock-up period; however, the terms of the lock-up agreements may be waived at their discretion. In determining whether to waive the terms of the lockup agreements, Representative may base its decision on its assessment of the relative strengths of the securities markets and companies similar to ours in general, and the trading pattern of, and demand for, our securities in general.
Stabilization
The rules of the SEC generally prohibit the Representative from trading in our securities on the open market during this offering. However, the Representative is allowed to engage in some open market transactions and other activities during this offering that may cause the market price of our securities to be above or below that which would otherwise prevail in the open market. These activities may include stabilization, short sales and over-allotments, syndicate covering transactions and penalty bids.
| · | Stabilizing transactions consist of bids or purchases made by the Representative for the purpose of preventing or slowing a decline in the market price of our securities while this offering is in progress. |
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| · | Short sales and over-allotments occur when the underwriters sell more of our common stock than it purchases from us in this offering. To cover the resulting short position, the Representative may exercise the over-allotment option described above or may engage in syndicate covering transactions. There is no contractual limit on the size of any syndicate covering transaction. The Representative will make available a prospectus in connection with any such short sales. Purchasers of shares sold short by the Representative are entitled to the same remedies under the federal securities laws as any other purchaser of shares covered by the registration statement. | |
| · | Syndicate covering transactions are bids for or purchases of our securities on the open market by the underwriters in order to reduce a short position. | |
| · | Penalty bids permit the Representative to reclaim a selling concession from a syndicate member when the shares of common stock originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. |
If the Representative commences these activities, it may discontinue them at any time without notice. The Representative will carry out any such transactions on the U.S. Exchange.
Listing
We have applied to list our shares of common stock on Nasdaq under the symbol “ELWT.” If our listing application is approved, we expect to list our common stock on Nasdaq upon consummation of the offering. No assurance can be given that our listing application will be approved or that our common stock will be listed on Nasdaq. This offering will occur only if Nasdaq approves the listing of our common stock.
Electronic Distribution
A prospectus in electronic format may be made available on websites or through other online services maintained by the underwriters of this offering, or by their affiliates. Other than the prospectus in electronic format, the information on any underwriters' website and any information contained in any other website maintained by an underwriter is not part of this prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or the Representative in its capacity as an underwriter.
Other Relationships
Representative and its affiliates may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with us or our affiliates. They may in the future receive, customary fees and commissions for these transactions. In the course of its businesses, Representative and their affiliates may actively trade our securities or loans for its own account or for the accounts of customers, and, accordingly, Representative and their affiliates may at any time hold long or short positions in such securities or loans.
Except for services provided in connection with this offering, Representative has not provided any investment banking or other financial services during the 180-day period preceding the date of this prospectus and we do not expect to retain Representative to perform any investment banking or other financial services for at least 90 days after the date of this prospectus.
Maxim Cerith LLC (“Maxim Cerith”) is an investment holding company that is owned and controlled by certain partners of Maxim. Maxim Cerith owns 15.0% of the Company’s common stock. See “Security Ownership of Certain Beneficial Owners and Management.”
Selling Restrictions
No action has been taken in any jurisdiction (except in the United States) that would permit a public offering of our common stock, or the possession, circulation or distribution of this prospectus or any other material relating to us or our common stock in any jurisdiction where action for that purpose is required. Accordingly, our common stock (including their constituent common stock and warrants) may not be offered or sold, directly or indirectly, and this prospectus or any other offering material or advertisements in connection with our securities may be distributed or published, in or from any country or jurisdiction, except in compliance with any applicable rules and regulations of any such country or jurisdiction.
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Notice to Investors in the United Kingdom
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a "Relevant Member State") an offer to the public of any securities which are the subject of the offering contemplated by this prospectus may not be made in that Relevant Member State except that an offer to the public in that Relevant Member State of any such securities may be made at any time under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:
| (a) | to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; | |
| (b) | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; | |
| (c) | by the underwriters to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or | |
| (d) | in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of these securities shall result in a requirement for the publication by the issuer or the underwriters of a prospectus pursuant to Article 3 of the Prospectus Directive. |
For the purposes of this provision, the expression an "offer to the public" in relation to any of the securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any such securities to be offered so as to enable an investor to decide to purchase any such securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression "Prospectus Directive" means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
C-H has represented, warranted and agreed that:
| (a) | it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (the FSMA)) received by it in connection with the issue or sale of any of the securities in circumstances in which section 21(1) of the FSMA does not apply to the issuer; and |
| (b) | it has complied with and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the securities in, from or otherwise involving the United Kingdom. |
European Economic Area
In particular, this document does not constitute an approved prospectus in accordance with European Commission's Regulation on Prospectuses no. 809/2004 and no such prospectus is to be prepared and approved in connection with this offering. Accordingly, in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (being the Directive of the European Parliament and of the Council 2003/71/EC and including any relevant implementing measure in each Relevant Member State) (each, a Relevant Member State), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the Relevant Implementation Date) an offer of securities to the public may not be made in that Relevant Member State prior to the publication of a prospectus in relation to such securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of securities to the public in that Relevant Member State at any time:
| · | to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; | |
| · | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown in the last annual or consolidated accounts; or | |
| · | in any other circumstances which do not require the publication by the Issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. |
For the purposes of this provision, the expression an "offer of securities to the public" in relation to any of the securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe for the securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State. For these purposes the shares offered hereby are "securities."
67
Israel
This document does not constitute a prospectus under the Israeli Securities Law, 5728-1968, or the Securities Law, and has not been filed with or approved by the Israel Securities Authority. In the State of Israel, this document is being distributed only to, and is directed only at, and any offer of the shares is directed only at, investors listed in the first addendum, or the Addendum, to the Israeli Securities Law, consisting primarily of joint investment in trust funds, provident funds, insurance companies, banks, portfolio managers, investment advisors, members of the Tel Aviv Stock Exchange, underwriters, venture capital funds, entities with equity in excess of NIS 50 million and "qualified individuals", each as defined in the Addendum (as it may be amended from time to time), collectively referred to as qualified investors (in each case purchasing for their own account or, where permitted under the Addendum, for the accounts of their clients who are investors listed in the Addendum). Qualified investors will be required to submit written confirmation that they fall within the scope of the Addendum, are aware of the meaning of same and agree to it.
Switzerland
The securities may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (the SIX) or on any other stock exchange or regulated trading facility in Switzerland. This document has been prepared without regard to the disclosure standards for issuance prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any other stock exchange or regulated trading facility in Switzerland. Neither this document nor any other offering or marketing material relating to the securities or the offering may be publicly distributed or otherwise made publicly available in Switzerland.
Neither this document nor any other offering or marketing material relating to the offering, or the securities have been or will be filed with or approved by any Swiss regulatory authority. In particular, this document will not be filed with, and the offer of securities will not be supervised by, the Swiss Financial Market Supervisory Authority FINMA, and the offer of securities has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes (CISA). Accordingly, no public distribution, offering or advertising, as defined in CISA, its implementing ordinances and notices, and no distribution to any non-qualified investor, as defined in CISA, its implementing ordinances and notices, shall be undertaken in or from Switzerland, and the investor protection afforded to acquirers of interests in collective investment schemes under CISA does not extend to acquirers of securities
Australia
No placement document, prospectus, product disclosure statement or other disclosure document has been lodged with the Australian Securities and Investments Commission (ASIC), in relation to the offering.
This prospectus does not constitute a prospectus, product disclosure statement or other disclosure document under the Corporations Act 2001 (the Corporations Act) and does not purport to include the information required for a prospectus, product disclosure statement or other disclosure document under the Corporations Act. Any offer in Australia of the securities may only be made to persons (the Exempt Investors) who are “sophisticated investors” (within the meaning of section 708(8) of the Corporations Act), “professional investors” (within the meaning of section 708(11) of the Corporations Act) or otherwise pursuant to one or more exemptions contained in section 708 of the Corporations Act so that it is lawful to offer the securities without disclosure to investors under Chapter 6D of the Corporations Act. The securities applied for by Exempt Investors in Australia must not be offered for sale in Australia in the period of 12 months after the date of allotment under the offering, except in circumstances where disclosure to investors under Chapter 6D of the Corporations Act would not be required pursuant to an exemption under section 708 of the Corporations Act or otherwise or where the offer is pursuant to a disclosure document which complies with Chapter 6D of the Corporations Act. Any person acquiring securities must observe such Australian on-sale restrictions.
This prospectus contains general information only and does not take account of the investment objectives, financial situation or particular needs of any particular person. It does not contain any securities recommendations or financial product advice. Before making an investment decision, investors need to consider whether the information in this prospectus is appropriate to their needs, objectives and circumstances, and, if necessary, seek expert advice on those matters.
68
Notice to Prospective Investors in the Cayman Islands
No invitation, whether directly or indirectly, may be made to the public in the Cayman Islands to subscribe for our securities.
Taiwan
The securities have not been and will not be registered with the Financial Supervisory Commission of Taiwan pursuant to relevant securities laws and regulations and may not be sold, issued or offered within Taiwan through a public offering or in circumstances which constitutes an offer within the meaning of the Securities and Exchange Act of Taiwan that requires a registration or approval of the Financial Supervisory Commission of Taiwan. No person or entity in Taiwan has been authorized to offer, sell, give advice regarding or otherwise intermediate the offering and sale of the securities in Taiwan.
Notice to Prospective Investors in Hong Kong
The contents of this prospectus have not been reviewed by any regulatory authority in Hong Kong. You are advised to exercise caution in relation to the offer. If you are in any doubt about any of the contents of this prospectus, you should obtain independent professional advice. Please note that (i) our shares may not be offered or sold in Hong Kong, by means of this prospectus or any document other than to “professional investors” within the meaning of Part I of Schedule 1 of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) (SFO) and any rules made thereunder, or in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong) (CO) or which do not constitute an offer or invitation to the public for the purpose of the CO or the SFO, and (ii) no advertisement, invitation or document relating to our shares may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere) which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the shares which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the SFO and any rules made thereunder.
Notice to Prospective Investors in the People’s Republic of China
This prospectus may not be circulated or distributed in the PRC and the shares may not be offered or sold, and will not offer or sell to any person for re-offering or resale directly or indirectly to any resident of the PRC except pursuant to applicable laws, rules and regulations of the PRC. For the purpose of this paragraph only, the PRC does not include Taiwan and the special administrative regions of Hong Kong and Macau.
69
The validity of the common stock offered by this prospectus will be passed upon by Harter Secrest & Emery LLP, Rochester, NY. Certain legal matters in connection with this offering will be passed upon for the underwriter by Pryor Cashman LLP, New York, New York.
Freed Maxick P.C., an independent registered public accounting firm, has audited our consolidated financial statements as of December 31, 2024 and 2023 as set forth in its report (which includes an explanatory paragraph as to the Company’s ability to continue as a going concern). We have included our financial statements in the prospectus and elsewhere in the registration statement in reliance on Freed Maxick P.C.’s report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1, which includes amendments and exhibits, under the Securities Act and the rules and regulations under the Securities Act for the registration of common stock being offered by this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all the information that is in the registration statement and its exhibits and schedules. Certain portions of the registration statement have been omitted as allowed by the rules and regulations of the SEC. Statements in this prospectus that summarize documents are not necessarily complete, and in each case you should refer to the copy of the document filed as an exhibit to the registration statement. All filings we make with the SEC are available on the SEC’s web site at www.sec.gov.
Upon completion of this offering, we will be subject to the information requirements of the Exchange Act and will file annual, quarterly and current event reports, proxy statements and other information with the SEC. We also maintain a website at www.elauwit.com. The information contained on, or that can be accessed through, our website is not part of, and is not incorporated into, this prospectus. We have included our website in this prospectus solely as an inactive textual reference, and you should not consider the contents of our website in making an investment decision with respect to our securities.
70
ELAUWIT CONNECTION, INC.
Index to Consolidated Financial Statements
| Page | |
| Audited Financial Statements As of and For the Years Ended December 31, 2024 and 2023 | |
| Report of Independent Registered Public Accounting Firm (PCAOB ID: 317) | F-1 |
| Consolidated Balance Sheets | F-2 |
| Consolidated Statement of Operations | F-3 |
| Consolidated Statement of Mezzanine Equity and Stockholders’ Deficit | F-4 |
| Consolidated Statements of Cash Flows | F-5 |
| Notes to Consolidated Financial Statements | F-6 |
| Unaudited Interim Condensed Consolidated Financial Statements As of and For the Six Months Ended June 30, 2025 and June 30, 2024 | |
| Consolidated Balance Sheets | F-30 |
| Consolidated Statement of Operations | F-31 |
| Consolidated Statement of Mezzanine Equity and Stockholders’ Deficit | F-32 |
| Consolidated Statements of Cash Flows | F-33 |
| Notes to Unaudited Consolidated Financial Statements | F-34 |
71
Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Elauwit Connection, Inc.
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Elauwit Connection, Inc. (the Company) as of December 31, 2024 and 2023, the related consolidated statements of operations, changes in mezzanine equity and stockholders’ deficit, and cash flows for each of the years then ended and the related notes to the consolidated financial statements (collectively, the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2024 and 2023, and the results of its operations and its cash flows for each of the years then ended, in conformity with accounting principles generally accepted in the United States of America.
Emphasis of Matter – Going Concern
The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 1 to the financial statements, the Company has suffered recurring losses from operations and negative cash flows from operating activities since inception. This raises substantial doubt about the Company's ability to continue as a going concern. Management's plans in regard to these matters also are described in Note 1. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB and in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
| /s/ Freed Maxick P.C. | |
| We have served as the Company's auditor since 2024. | |
| Buffalo, New York | |
| April 7, 2025 |
F-1
ELAUWIT CONNECTION, INC
(in thousands, except share and par value data)
| December 31, 2024 | December 31, 2023 | |||||||
| ASSETS | ||||||||
| Current Assets | ||||||||
| Cash | $ | 287 | $ | 329 | ||||
| Accounts receivable | 4,451 | 898 | ||||||
| Inventories | 1,606 | 156 | ||||||
| Network financing receivable, current | 67 | — | ||||||
| Prepaid expenses and other current assets | 258 | — | ||||||
| Total current assets | 6,669 | 1,383 | ||||||
| Network financing receivable | 446 | — | ||||||
| Lease right-of-use assets, net | 55 | — | ||||||
| Net investment in lease | 531 | — | ||||||
| Other non-current assets | 25 | 25 | ||||||
| TOTAL ASSETS | $ | 7,726 | $ | 1,408 | ||||
| LIABILITIES AND STOCKHOLDERS' DEFICIT | ||||||||
| Current Liabilities | ||||||||
| Accounts payable | $ | 1,914 | $ | 391 | ||||
| Accrued expenses and other current liabilities | 76 | 36 | ||||||
| Related party debt, current | 695 | 546 | ||||||
| Related party payables, current | 240 | 120 | ||||||
| Deferred revenue | 6,215 | 1,880 | ||||||
| Phantom stock liability | — | 116 | ||||||
| Operating lease liabilities, current | 36 | — | ||||||
| Total current liabilities | 9,176 | 2,973 | ||||||
| Related party debt, net of current | 2,725 | 673 | ||||||
| Related party payables, net of current | 342 | 560 | ||||||
| Operating lease liabilities, net of current | 19 | — | ||||||
| Total liabilities | 12,262 | 4,322 | ||||||
| Commitments and contingencies (see Note 11) | ||||||||
| Mezzanine Equity | ||||||||
| Series Seed Convertible Preferred Stock, $0.001 par value, 0 and 250,000 shares issued and outstanding as of December 31, 2024 and 2023 (liquidation preference of $0 and $1,000 as of December 31, 2024 and 2023) | — | 1,000 | ||||||
| Series B Convertible Preferred Stock, $0.001 par value, 0 and 176,932 shares issued and outstanding as of December 31, 2024 and 2023 (liquidation preference of $0 and $2,382 as of December 31, 2024 and 2023) | — | 2,382 | ||||||
| Stockholders' Deficit | ||||||||
| Preferred stock, $0.0001 par value, 577,067 authorized; none designated as of December 31, 2024; 250,000 designated as Series Seed Convertible Preferred Stock, 176,932 designated as Series B Convertible Preferred Stock as of December 31, 2023 | — | — | ||||||
| Common stock, $0.0001 par value, 1,032,067 authorized, 0 and 680,000 shares (2,800,206 post share exchange) issued as of December 31, 2024 and 2023 | — | — | ||||||
| Class A common stock, $0.00001 par value, 7,000,000 authorized, 2,497,950 and 0 shares issued as of December 31, 2024 and 2023 | — | — | ||||||
| Class B common stock, $0.00001 par value, 3,000,000 authorized, 2,502,050 and 0 shares issued as of December 31, 2024 and 2023 | — | — | ||||||
| Stock subscription receivable | (30 | ) | (30 | ) | ||||
| Additional Paid-in Capital | 5,859 | 625 | ||||||
| Accumulated deficit | (10,365 | ) | (6,891 | ) | ||||
| Total stockholders' deficit | (4,536 | ) | (6,296 | ) | ||||
| TOTAL LIABILITIES, MEZZANINE EQUITY, AND STOCKHOLDERS’ DEFICIT | $ | 7,726 | $ | 1,408 | ||||
F-2
ELAUWIT CONNECTION, INC
Consolidated Statements of Operations
(in thousands, except share and par value data)
| Years Ended December 31, | ||||||||
| 2024 | 2023 | |||||||
| Revenues | ||||||||
| Revenues | $ | 8,495 | $ | 3,923 | ||||
| Cost of revenues | ||||||||
| Cost of revenue | 7,331 | 3,728 | ||||||
| Gross profit | 1,164 | 195 | ||||||
| Operating expenses | ||||||||
| Selling, general and administrative | 4,300 | 2,740 | ||||||
| Sales and marketing | 81 | 36 | ||||||
| Research and development | 1 | 11 | ||||||
| Total operating expenses | 4,382 | 2,787 | ||||||
| Operating loss | (3,218 | ) | (2,592 | ) | ||||
| Other expense, net | ||||||||
| Interest expense, net | (255 | ) | (98 | ) | ||||
| Total other expense, net | (255 | ) | (98 | ) | ||||
| Loss from operations before income taxes | (3,473 | ) | (2,690 | ) | ||||
| Income tax expense | 1 | — | ||||||
| Net loss | $ | (3,474 | ) | $ | (2,690 | ) | ||
| Net loss attributable to common stockholders | $ | (3,474 | ) | $ | (2,690 | ) | ||
| Net loss per share attributable to common stockholders, basic and diluted | $ | (0.98 | ) | $ | (0.96 | ) | ||
| Weighted average common shares used in computing net loss per share, basic and diluted | 3,545,691 | 2,800,206 | ||||||
See accompanying notes to consolidated financial statements.
F-3
ELAUWIT CONNECTION, INC
Consolidated Statements of Mezzanine Equity and Stockholders' Deficit
(in thousands, except share data)
For the Years Ended December 31, 2024 and 2023
| Mezzanine Equity | Common Stock | ||||||||||||||||||||||||||||||||||||||||||||
| Series Seed Convertible Preferred Stock |
Series B
Convertible Preferred Stock | Common Stock | Class A
Common Stock | Class B
Common Stock | |||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Additional Paid-In- Capital | Accumulated Deficit | Stock Subscription Receivable | Total Stockholders' Deficit | ||||||||||||||||||||||||||||||||
| Balance at December 31, 2022 | 250,000 | $ | 1,000 | 50,000 | $ | 500 | 2,800,206 | $ | — | — | $ | — | — | $ | — | $ | 625 | $ | (4,201 | ) | $ | — | $ | (3,576 | ) | ||||||||||||||||||||
| Issuance of Series B Convertible Preferred Stock | — | — | 126,932 | 1,882 | — | — | — | — | — | — | — | — | (30 | ) | (30 | ) | |||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | — | — | — | — | — | (2,690 | ) | — | (2,690 | ) | |||||||||||||||||||||||||||||
| Balance at December 31, 2023 | 250,000 | $ | 1,000 | 176,932 | $ | 2,382 | 2,800,206 | $ | — | — | $ | — | — | $ | — | $ | 625 | $ | (6,891 | ) | $ | (30 | ) | $ | (6,296 | ) | |||||||||||||||||||
| Repurchase and retirement of Series Seed Preferred Stock, at cost | (250,000) | (1,000 | ) | — | — | — | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||
| Issuance of Series B Convertible Preferred Stock | — | — | 143,590 | 2,378 | — | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||
| Issuance of Series B Convertible Preferred Stock to pay for services | 6,545 | 108 | — | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||||
| Conversion of preferred and phantom stock into common stock and exchange at 4.11795 in connection with the reverse recapitalization | — | — | (327,067 | ) | (4,868 | ) | (2,800,206 | ) | — | 2,497,950 | — | 2,502,050 | — | 5,234 | — | — | 5,234 | ||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | — | — | — | — | — | (3,474 | ) | — | (3,474 | ) | |||||||||||||||||||||||||||||
| Balance at December 31, 2024 | — | $ | — | — | $ | — | — | $ | — | 2,497,950 | $ | — | 2,502,050 | $ | — | $ | 5,859 | $ | (10,365 | ) | $ | (30 | ) | $ | (4,536 | ) | |||||||||||||||||||
See accompanying notes to consolidated financial statements.
F-4
ELAUWIT CONNECTION, INC
Consolidated Statements of Cash Flows
(in thousands)
| For the Years Ended December 31, | ||||||||
| 2024 | 2023 | |||||||
| CASH FLOWS FROM OPERATING ACTIVITIES: | ||||||||
| Net loss | $ | (3,474 | ) | $ | (2,690 | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Depreciation and amortization | — | 3 | ||||||
| Right of use asset amortization expense | 17 | — | ||||||
| Issuance of Series B Preferred Stock for services | 108 | — | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | (3,553 | ) | 539 | |||||
| Network financing receivable | (513 | ) | — | |||||
| Inventories | (1,450 | ) | (156 | ) | ||||
| Prepaid expenses and other assets | (258 | ) | 9 | |||||
| Accounts payable | 1,523 | (531 | ) | |||||
| Accrued expenses | 40 | 33 | ||||||
| Deferred revenue | 4,335 | 704 | ||||||
| Related party payables | (98 | ) | (23 | ) | ||||
| Net investment in lease | (531 | ) | — | |||||
| Lease right-of-use lease liabilities payments | (17 | ) | — | |||||
| Net cash used in operating activities | (3,871 | ) | (1,996 | ) | ||||
| CASH FLOWS FROM INVESTING ACTIVITIES: | ||||||||
| Cash acquired from reverse recapitalization with DeltaMax | 250 | — | ||||||
| Net cash provided by investing activities | 250 | — | ||||||
| CASH FLOWS FROM FINANCING ACTIVITIES: | ||||||||
| Proceeds from related party debt | 2,495 | 630 | ||||||
| Repayment of related party debt | (1,294 | ) | (246 | ) | ||||
| Proceeds from issuance of Series B stock | 2,378 | 1,852 | ||||||
| Net cash provided by financing activities | 3,579 | 2,236 | ||||||
| NET CHANGE IN CASH | (42 | ) | 240 | |||||
| CASH, beginning of year | 329 | 89 | ||||||
| CASH, end of year | $ | 287 | $ | 329 | ||||
| SUPPLEMENTAL DISCLOSURE OF NONCASH INFORMATION: | ||||||||
| Cash payments for income taxes | $ | 2 | $ | — | ||||
| Cash payments for interest | $ | 302 | $ | 98 | ||||
| NON-CASH INVESTING AND FINANCING TRANSACTIONS: | ||||||||
| Lease liabilities arising from obtaining right-of-use asset | $ | 72 | $ | — | ||||
| Conversion of Series A Convertible Preferred Stock for common stock in conjunction with reverse recapitalization | $ | 5,118 | $ | — | ||||
| Phantom stock liability conversion as part of reverse recapitalization | $ | 116 | $ | — | ||||
| Repurchase of Series seed stock for issuance of note payable | $ | 1,000 | $ | — | ||||
See accompanying notes to consolidated financial statements.
F-5
ELAUWIT CONNECTION, INC
Notes to Consolidated Financial Statements
Note 1. Organization and Nature of Operations
The Company
Elauwit Connection, Inc ("Elauwit" or the "Company") is a privately held technology services company that specializes in providing advanced connectivity solutions for buildings by enhancing internet and network infrastructure for property owners and managers. Elauwit provides these solutions by designing and implementing high-speed internet, video, and other technology solutions to ensure seamless connectivity for residents and tenants, with the goal of putting more control in the hands of property owners and allowing them to offer a superior internet experience as a key amenity.
On September 13, 2024 (the “Closing Date”), Elauwit Connection, Inc, a Delaware Corporation, incorporated in December 2019, ("Legacy Elauwit") and DeltaMax, Inc. ("DeltaMax"), a privately-held Delaware corporation, consummated a merger transaction pursuant to which Legacy Elauwit was merged with and into the DeltaMax (the “Merger”), with the DeltaMax being the legal successor or surviving corporation in the Merger (the “Closing”). As part of the Merger DeltaMax changed its name to Elauwit Connection, Inc. On the Closing Date, Legacy Elauwit and DeltaMax consummated the Merger and the transactions contemplated thereby, including the issuance of 2,497,950 Class A shares and 2,502,050 Class B shares of Common Stock (the “Merger Shares”), which included 750,000 Class B shares to DeltaMax, with the remainder to the owners of Legacy Elauwit as a result of a 4.11795 share exchange. Additionally, a previous liability associated with Phantom Stock of $116 thousand was settled and exchanged for 102,948 Class B shares. Prior to the merger, DeltaMax was a non-operating shell company.
The Merger was accounted for as a reverse recapitalization of the Company because Legacy Elauwit has been determined to be the accounting acquirer under FASB ASC Topic 805 - Business Combinations. Under this method of accounting, DeltaMax is treated as the “acquired” company for financial reporting purposes. This determination was primarily based on holders of Legacy Elauwit capital stock comprising a relative majority of the voting power of the Company upon consummation of the Merger and will comprise the majority of the governing body of the Company, Legacy Elauwit's senior management comprising the senior management of the Company, and Legacy Elauwit operations comprising the ongoing operations of the Company. Accordingly, for accounting purposes, the financial statements of the Company represent a continuation of the financial statements of Legacy Elauwit, with the exception of legal capital, with the Merger being treated as the equivalent of Legacy Elauwit issuing shares for the net assets of DeltaMax, accompanied by a recapitalization. As such, periods prior have common stock restated at the 4.11795 share exchange ratio of Legacy Elauwit shares for Merger Shares. The net assets of DeltaMax, which included only cash of $250 thousand, were recognized as of the Closing at historical cost, with no goodwill or other intangible assets recorded because the transaction did not constitute the acquisition of a business. Operations prior to the Merger are presented as those of Legacy Elauwit and the accumulated deficit of Legacy Elauwit has been carried forward after Closing. All issued and outstanding securities of DeltaMax upon Closing were treated as issuances of securities of the Company upon the consummation of the Merger.
After the Merger and looking forward, Legacy Elauwit's product lines are the primary focus of the Company's operations. Accordingly, the Company’s current activities primarily relate to Legacy Elauwit’s historical business which comprises the design and implementation of high-speed internet, video, and other technology solutions to ensure seamless connectivity for residents and tenants.
Going Concern
As of December 31, 2024, the Company had cash of approximately $0.3 million. For the year ended December 31, 2024, the Company used approximately $3.9 million in cash for operating activities. The Company has incurred recurring net losses from operations and negative cash flows from operating activities since inception. As of December 31, 2024, the Company had an accumulated deficit of approximately $10.4 million.
F-6
Management expects operating losses and negative cash flows to continue for the foreseeable future as the Company invests in its commercial capabilities. While the Company's working capital and current debt indicate a substantial doubt regarding the Company’s ability to continue as a going concern, the Company has historically, from time to time, satisfied and may continue to satisfy certain short-term liabilities through the issuance of common and preferred stock, and other related party support, thus reducing our cash requirement to meet our operating needs. Management will continue to monitor its operating costs and seek to reduce its current liabilities. Such actions may impair its ability to proceed with certain strategic activities. If expected revenues are not adequate to fund planned expenditures, or if the Company is unsuccessful at raising cash through future capital transactions, including proceeds from our current planned initial public offering ("IPO") transaction, it may be required to reduce its spending rate to align with expected revenue levels and cash reserves, although there can be no guarantee that it will be successful in doing so. Accordingly, the Company may be required to raise additional cash through debt or equity transactions. It may not be able to secure financing in a timely manner or on favorable terms, if at all.
As a result of these factors, management has concluded that there is substantial doubt about the Company’s ability to continue as a going concern for a period of one year after the date the consolidated financial statements are issued. The Company’s consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Note 2. Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation. All subsidiaries were dormant with no activities and were dissolved during 2024.
Basis of Presentation
The consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). The Financial Accounting Standards Board (“FASB”) establishes these principles to ensure financial condition, results of operations, and cash flows are consistently reported. Any reference in these notes to applicable accounting guidance is meant to refer to the authoritative nongovernmental GAAP as found in the FASB Accounting Standards Codification ("ASC").
Use of Estimates
The preparation of financial statements and related disclosures in conformity with U.S. GAAP requires management to make estimates and judgments that affect the reported amounts of assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenue and expenses during the reporting period. Significant estimates made by management include assumptions used in estimates of future credit loses under the current expected credit loss impairment model, valuation of Class A and Class B common stock, valuation of Series Seed and Series B Convertible Preferred Stock, valuation of Phantom Stock Awards, revenue recognition, including cost estimates and percentage complete, provisions for income taxes and related valuation allowances and tax uncertainties. On an ongoing basis, management reviews these estimates and assumptions based on currently available information. Actual results could differ from these estimates.
F-7
Concentrations of Credit Risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of demand deposits with financial institutions and accounts receivable. The Company maintains cash balances with financial institutions, which at times, are in excess of amounts insured by the Federal Deposit Insurance Corporation. To date, the Company has not experienced any collection loss with these institutions.
Accounts receivable are subject to the risk that the Company’s customers will not pay the amounts due. The Company has established credit and collection policies to mitigate that risk. As of December 31, 2024, the Company had two customers that accounted for approximately 65% of the Company’s accounts receivable balance. As of December 31, 2023, the Company had five customers that accounted for approximately 81% of the Company's accounts receivable balance. During the year ended December 31, 2024, the Company had three customers that accounted for approximately 36% of the Company's total revenues. During the year ended December 31, 2023, the Company had one customer that accounted for approximately 66% of the Company's total revenues.
Segment Reporting
The Company determines its reportable segments in accordance with FASB ASC Topic 280, Segment Reporting (“ASC 280”). The Company evaluates a reporting segment by first identifying its operating segments under ASC 280. The Company then evaluates each operating segment to determine if it includes one or more components that constitute a business. If there are components within an operating segment that meet the definition of a business, the Company evaluates those components to determine if they must be aggregated into one or more reportable segments. If applicable, when determining if it is appropriate to aggregate different operating segments, the Company determines if the segments are economically similar and, if so, the operating segments are aggregated.
The Company adopted the provisions of FASB ASU 2023-07 as of January 1, 2024, for the fiscal years ended December 31, 2024 and 2023. The Company has one operating segment and one reportable segment. The Company identifies the Chief Operating Decision Maker ("CODM") to be a group consisting of the Chief Executive Officer ("CEO") and the Chief Financial Officer ("CFO"). The CODM reviews financial information on a consolidated basis for purposes of allocating resources and evaluating financial performance. The Company’s principal operations are in the United States. The CODM utilized and regularly reviews consolidated gross profit and loss from operations as measures of segment profit or loss. These measure enable the CEO and CFO to access the overall level of available resources and determine how best to deploy resources.
F-8
A reconciliation of total segment revenues to total consolidated revenues and of total segment gross margin and segment operating loss which aggregates to total consolidated loss from operations is as follows:
| For the Year ended December 31, | ||||||||
| 2024 | 2023 | |||||||
| Revenues | $ | 8,495 | $ | 3,923 | ||||
| Less: | ||||||||
| Cost of revenues | 7,331 | 3,728 | ||||||
| Segment gross margin | 1,164 | 195 | ||||||
| Less(1): | ||||||||
| Segment compensation expenses (2) | 2,095 | 1,368 | ||||||
| Segment travel expenses (3) | 228 | 210 | ||||||
| Other segment expenses (4) | 2,059 | 1,209 | ||||||
| Segment operating loss | $ | (3,218 | ) | $ | (2,592 | ) | ||
| (1) | The significant expense categories and amounts align with the segment-level information that is regularly provided to the CODM. |
| (2) | Compensation related expenses primarily include salaries and related payroll tax expenses that are directly attributed to generating revenues. |
| (3) | Travel related expenses primarily include travel expenses that are directly attributed to generating revenues. |
| (4) | Other segment expenses for each reportable segment includes all other operating expenses such as management fees, professional fees, insurance, rent and other. |
The measure of segment assets is reported in the accompanying consolidated balance sheets as “Total assets.”
Cash and Cash Equivalents
The Company considers all short-term, highly liquid investments with original maturities of 90 days or less to be cash equivalents. The Company does not maintain deposits in financial institutions in excess of federally insured limits of $250 thousand at December 31, 2024. The Company did not have any cash equivalents at December 31, 2024 or December 31, 2023.
Accounts Receivable, Unbilled Receivables, Network Financing Receivables and Allowance for Credit Losses
Trade accounts receivable are recorded at invoiced amounts, net of allowance for expected credit losses, if applicable, and are unsecured and do not bear interest. In addition, unbilled and network financing receivables are derived from the allocation of contract consideration for services, such as network design and installation, recognized over time, which payment of such consideration received over the contract term, generally between one and several years. Unbilled and network financing receivables are presented net of allowances for credit losses. Unbilled receivables are generally billed within a few months subsequent to the balance sheet date. Network financing receivables are billed monthly in accordance with contract terms, generally over a period of five to seven years, concurrent with internet network services.
F-9
Under the current expected credit losses ("CECL") impairment model, the Company develops and documents its allowance for credit losses on trade accounts receivable, unbilled receivables, and network financing receivables based on historical losses. The determination of portfolio segments is based primarily on the qualitative consideration of the credit risks driven by the customer type and macroeconomic factors, if any are deemed to drive credit loss. The Company also considers reasonable and supportable current information in determining its estimated loss rates, such as external forecasts, macroeconomic trends or other factors including customers’ credit risk and historical loss experience. At January 1, 2023, December 31, 2023 and December 31, 2024, no macroeconomic factors were noted that would impact the Company’s expected credit losses given the short term nature of trade accounts receivable.
The adequacy of the allowance is evaluated on a regular basis. Account balances are written off after all means of collection are exhausted and the balance is deemed uncollectible. Subsequent recoveries are credited to the allowance. Changes in the allowance are recorded as adjustments to bad debt expense in the period incurred. For the years ended December 31, 2024 and 2023, the Company recorded no allowance for doubtful debt for accounts receivable.
Inventories
The Company's inventory is stated at the lower of cost and net realizable value, using specific identification method. The Company's inventory consists completely of items procured but not yet assigned or shipped to a specific job site and finished goods inventory. Indirect costs relating to long-term contracts, which include expenses such as general and administrative, are charged to expense as incurred. The Company had no material write-offs of inventory during the years ended December 31, 2024 and 2023 and has not recorded an inventory reserve.
Deferred Financing Costs
The Company allocates offering costs to the different components of the capital raise on a pro rata basis. Any offering costs allocated to common stock are charged directly to additional paid-in capital.
The Company complies with the requirements of FASB ASC Topic 340, Other Assets and Deferred Costs (“ASC 340”) and SAB 5A - Expenses of Offering. Offering costs, which consist mainly of legal, accounting and consulting fees directly attributable to the issuance of an equity contract to be classified in equity are recorded as a reduction in equity. For the years ended December 31, 2024 and December 31, 2023, there were no deferred financing costs.
Distinguishing Liabilities from Equity
The Company relies on the guidance provided by FASB ASC Topic 480, Distinguishing Liabilities from Equity ("ASC 480"), to classify certain redeemable and/or convertible instruments. The Company first determines whether a financial instrument should be classified as a liability. The Company will determine the liability classification if the financial instrument is mandatorily redeemable, or if the financial instrument, other than outstanding shares, embodies a conditional obligation that the Company must or may settle by issuing a variable number of its equity shares.
Once the Company determines that a financial instrument should not be classified as a liability, the Company determines whether the financial instrument should be presented between the liability section and the equity section of the consolidated balance sheet. The Company will determine temporary equity classification if the redemption of the financial instrument is outside the control of the Company (i.e. at the option of the holder). Otherwise, the Company accounts for the financial instrument as permanent equity.
Revenue Recognition
Overview
The Company generates revenue from the following sources: (1) network design and installation and 2) internet network services.
F-10
In accordance with FASB ASC 606 “Revenue Recognition” ("ASC 606"), the Company recognizes revenue from contracts with customers using a five-step model, which is described below:
| · | identify the customer contract; |
| · | identify performance obligations that are distinct; |
| · | determine the transaction price; |
| · | allocate the transaction price to the distinct performance obligations; and |
| · | recognize revenue as the performance obligations are satisfied. |
Identify the customer contract
A customer contract is generally identified when there is approval and commitment from both the Company and its customer, the rights have been identified, payment terms are identified, the contract has commercial substance and collectability is probable. Specifically, the Company obtains written/electronic signatures on contracts with customers.
Identify performance obligations that are distinct
A performance obligation is a promise by the Company to provide a distinct good or service or a series of distinct goods or services. A good or service that is promised to a customer is distinct if the customer can benefit from the good or service either on its own or together with other resources that are readily available to the customer, and a company’s promise to transfer the good or service to the customer is separately identifiable from other promises in the contract. The Company's network design and installation revenue stream requires significant services to integrate complex activities and equipment into a single deliverable, and is therefore generally accounted for as one distinct performance obligation. The Company's internet network services revenue stream is composed of two distinct performance obligations: (1) wired/wireless internet services and (2) hardware and internet services maintenance. The hardware and internet services maintenance performance obligation is a stand-ready obligation.
Determine the transaction price
The transaction price is the amount of consideration to which the Company expects to be entitled in exchange for transferring goods or services to a customer. The transaction price for the network design and installation is fixed based on the amount stated in the contract. For contracts in which the Company finances the construction of the network, any interest collected by the Company is excluded from the transaction price. The transaction price for the bulk internet services is determined by the monthly per unit price times the number of units stated in the contract.
The Company evaluates its contracts with customers for the presence of significant financing components. If a significant financing component is identified in a contract and provides a financing benefit to the customer, the transaction price for the contract is adjusted to account for the financing portion of the arrangement, which is recognized as interest income over the financing term using the effective interest method. In determining the appropriate interest rates for significant financing components, the Company evaluates the credit profile of the customer and prevailing market interest rates and selects an interest rate in which it believes would be charged to the customer in a separate financing arrangement over a similar financing term.
Allocate the transaction price to distinct performance obligations
When allocating the contract’s transaction price, we consider each distinct performance obligation. As the contracts contain multiple performance obligations, the Company allocates the contract’s transaction price to each performance obligation based on the standalone selling price, which is stipulated in the contract.
F-11
Recognize revenue as the performance obligations are satisfied
Revenue related to network design and installation revenue stream is recognized over time as the Company’s performance creates or enhances an asset that the customer controls as the asset is created or enhanced date. The best measure of progress towards completion for this performance obligation is costs incurred to date, as the Company has reliable information about the costs it expects to incur in total and the costs actually incurred and because it best depicts the transfer of control to the customer which occurs as we incur costs on our contracts. For over time contracts using a cost-to-cost measure of progress, we have an estimate at completion ("EAC") process in which management reviews the progress and execution of our performance obligations. This EAC process requires management judgment relative to assessing risks, estimating contract revenue and costs, and making assumptions for schedule and technical issues. Accordingly, the Company will use an input method of costs incurred to date relative to the estimated total costs to satisfy the performance obligation to record revenue.
Revenue related to wired/wireless internet services is recognized over time as the customer simultaneously receives and consumes the benefits provided by the Company’s performance as the Company performs. The best measure of progress towards completion for this performance obligation is the passage of time as the Company’s efforts are used evenly throughout the performance of the wired and wireless internet services performance obligation. Accordingly, the Company will use an input method of time (in days) elapsed to record revenue as the performance obligation is satisfied evenly over time as the same internet services are provided daily. Revenue will be recorded ratably over the contract term.
Revenue related to hardware and internet services maintenance is recognized over time as the customer simultaneously receives and consumes the benefits provided by the Company’s performance as the Company performs. This performance obligation is a stand-ready obligation in which the Company expects the customer to receive and consume the benefits of the hardware and internet services maintenance throughout the contract period. Accordingly, the Company will use an input method of time (in days) elapsed to record revenue. Management notes that as this is a stand-ready obligation, the performance obligation is satisfied evenly over a period of time, and revenue will be recorded ratably over the contract term.
Costs to obtain contracts
The Company incurs incremental costs to obtain contracts with their customers for certain contracts, specifically sales commissions. These costs are initially capitalized and amortized over the contract term. As of December 31, 2024, the Company had approximately $148 thousand of costs to obtain contracts capitalized which are presented within 'Prepaid expenses and other current assets'. The Company did not incur any costs to obtain contracts during the year ended December 31, 2023.
Significant Judgments
The Company enters into contracts that may include various combinations of equipment, services and network installation. Contracts with customers often include promises to transfer multiple products and services to a customer. Determining whether products and services are considered distinct performance obligations that should be accounted for separately versus together may require significant judgment. Once the Company determines the performance obligations, it determines the transaction price, which includes estimating the amount of variable consideration to be included in the transaction price, if any. The Company then allocates the transaction price to each performance obligation in the contract based on the stand alone selling price. The corresponding revenue is recognized as the related performance obligations are satisfied. As it relates to Network design and installation revenue, each reporting period, the Company estimates the amount of costs incurred to date as a percentage of total estimated costs to determine the amount of revenue to recognize.
F-12
Deferred Revenue and Unbilled Receivables
The timing of revenue recognition, billings and collections results in receivables, unbilled receivables and contract liabilities on our consolidated balance sheets. Under typical payment terms for our contracts accounted for over time, amounts are billed as work progresses in accordance with agreed-upon contractual terms, either at periodic intervals. For certain contracts, billings occur subsequent to revenue recognition, resulting in unbilled receivables. Under ASC 606, unbilled receivables constitute contract assets. For certain contracts, payment terms typically require advanced payments and deposits. Under ASC 606, payments received from customers in excess of revenue recognized to-date results in a contract liability.
Shipping and Handling Costs
Shipping and handling costs charged to customers are included in revenue, while all other shipping and handling costs are included in general and administrative expenses in the accompanying consolidated statements of operations.
Advertising and Marketing
Advertising costs are expensed as incurred and included in selling, general and administrative expenses. Advertising costs were $80 thousand and $36 thousand during the year ended December 31, 2024 and 2023, respectively.
Leases
Operating lease assets are included within right-of-use operating lease asset and operating lease liabilities are included in current portion of right-of-use operating lease obligation and non-current portion of right-of-use operating lease obligation on the consolidated balance sheets as of December 31, 2024 and 2023. The Company has elected not to present short-term leases as these leases have a lease term of 12 months or less at lease inception and do not contain purchase options or renewal terms that the Company is reasonably certain to exercise. Lease payments for short-term leases are recognized on a straight-line basis over the term of the lease. All other lease assets and lease liabilities are recognized based on the present value of lease payments over the lease term at commencement date. Because the Company’s lease does not provide an implicit rate of return, the Company used an incremental borrowing rate based on the information available at adoption date in determining the present value of lease payments.
The Company assesses whether an arrangement is a lease or contains a lease at inception. For arrangements considered leases or that contain a lease that is accounted for separately, the Company determines the classification and initial measurement of the right-of-use asset and lease liability at the lease commencement date, which is the date that the underlying asset becomes available for use. The Company has elected to account for non-lease components associated with its leases and lease components as a single lease component.
The Company recognizes a right-of-use asset, which represents the Company’s right to use the underlying asset for the lease term, and a lease liability, which represents the present value of the Company’s obligation to make payments arising over the lease term. The lease liability is based on the present value of its unpaid minimum lease payments over the lease term, discounted using the interest rate implicit in the lease or, if that rate cannot be readily determined, the incremental borrowing rate which is the rate the Company pays to borrow on a collateralized basis.
Share-Based Compensation
The Company has a share-based compensation plans for employees. The share-based compensation includes awards of phantom stock which are accounted for under FASB ASC Topic 718, Compensation - Stock Compensation ("ASC 718"). The Company recognizes compensation cost, net of estimated forfeitures, for phantom stock awards on a straight-line basis over the requisite service period of each award. Awards that are liability classified are remeasured at each reporting period.
F-13
Income Taxes
The Company utilizes an asset and liability approach for financial accounting and reporting for income taxes. The provision for income taxes is based upon income or loss after adjustment for those permanent items that are not considered in the determination of taxable income. Deferred income taxes represent the tax effects of differences between the financial reporting and tax basis of the Company’s assets and liabilities at the enacted tax rates in effect for the years in which the differences are expected to reverse.
The Company evaluates the recoverability of deferred tax assets and establishes a valuation allowance when it is more likely than not that some portion or all the deferred tax assets will not be realized. Management makes judgments as to the interpretation of the tax laws that might be challenged upon an audit and cause changes to previous estimates of tax liabilities. In management’s opinion, adequate provisions for income taxes have been made. If actual taxable income by tax jurisdiction varies from estimates, additional allowances or reversals of reserves may be necessary.
Tax benefits are recognized only for tax positions that are more likely than not to be sustained upon examination by tax authorities. The amount recognized is measured as the largest amount of benefit that is greater than 50 percent likely to be realized upon settlement. A liability for “unrecognized tax benefits” is recorded for any tax benefits claimed in the Company’s tax returns that do not meet these recognition and measurement standards. As of December 31, 2024 and 2023, no liability for unrecognized tax benefits was required to be recorded.
The Company’s policy for recording interest and penalties associated with tax audits is to record such items as a component of operating expenses. There were no amounts accrued for penalties and interest for the years ended December 31, 2024 and 2023. The Company does not expect its uncertain tax positions to change during the next twelve months. Management is currently unaware of any issues under review that could result in significant payments, accruals or material deviations from its position.
The Company has identified its United States federal tax returns, and its state and provincial tax returns in North Carolina, Georgia and Michigan as its “major” tax jurisdictions. The Company is in the process of filing its United States federal and state corporate tax returns for the year ended December 31, 2024. Net operating losses for these periods will not be available to reduce future taxable income until the returns are filed.
Basic and Diluted Net Loss per Share of Common Stock
The Company calculates basic net loss per share by dividing net loss by the weighted average number of common shares outstanding during the reporting period. A net loss cannot be diluted so when the Company is in a net loss position, basic and diluted loss per common share are the same. If in the future the Company achieves profitability, the denominator of a diluted earnings per common share calculation will include both the weighted average number of shares outstanding and the number of common stock equivalents, if the inclusion of such common stock equivalents would be dilutive. Anti-dilutive common stock equivalents excluded from the computation of diluted net loss per share include the Phantom Stock, Series Seed Stock and Series Convertible B Preferred Stock.
Fair Value of Financial Instruments
The fair value of the Company’s assets and liabilities, which qualify as financial instruments under FASB ASC Topic 820, Fair Value Measurements and Disclosures” (“ASC 820”), approximates the carrying amounts in the balance sheets, primarily due to their short-term nature. Based upon current borrowing rates with similar maturities the carrying value of long-term debt, and related party loans payable approximates fair value.
F-14
Recently Adopted Accounting Pronouncements
Recently Issued Accounting Pronouncements Adopted
In June 2016, the FASB issued ASU 2016-13, Financial Instruments - Credit Losses. The amendments in this update introduce a new accounting model to measure credit losses for financial assets measured at amortized cost. The FASB has also issued additional ASUs to clarify the scope and provide additional guidance for ASU 2016-13. Credit losses for financial assets measured at amortized cost should be determined based on the total current expected credit losses over the life of the financial asset or group of financial assets. In effect, the financial asset or group of financial assets should be presented at the net amount expected to be collected. Credit losses will no longer be recorded under the incurred loss model for financial assets measured at amortized cost.
The amendments were effective on January 1, 2023 for the Company. While the standard modifies the measurement of the allowance for credit losses, it does not alter the credit risk of our trade or unbilled receivables. The impact of ASU 2016-13 did not have a material impact on the Company's consolidated financial statements.
In October 2021, the FASB issued ASU 2021-08, Business Combinations (Topic 805): Accounting for Contract Assets and Contract Liabilities from Contracts with Customers ("ASU 2021-08). This ASU states that if the entity is the acquirer in a business combination under Topic 805, then the entity must recognize and measure contract assets and contract liabilities acquired in a business combination in accordance with Topic 606. For non-public entities, the ASU is effective for fiscal years beginning after December 15, 2023, including interim periods within those fiscal years. The Company adopted ASU 2021-08 on January 1, 2024, and the impact was not material on the Company’s consolidated financial statements.
Recently Issued Accounting Pronouncements Not Yet Adopted
In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures ("ASU 2023-09"), which requires public entities to disclose consistent categories and greater disaggregation of information in the rate reconciliation and for income taxes paid. It also includes certain other amendments to improve the effectiveness of income tax disclosures. The guidance is effective for financial statements issued for annual periods beginning after December 15, 2024, with early adoption permitted. The Company is required to adopt this standard prospectively in fiscal year 2025 for the annual reporting period ending December 31, 2025. The accounting pronouncement is not expected to have a material impact on the Company's related disclosures.
In November 2024, the FASB issued ASU 2024-03, Income Statement (Topic 220): Reporting Comprehensive Income - Expense Disaggregation Disclosures, Disaggregation of Income Statement Expenses ("ASU 2024-03"), that requires public companies to disclose, in interim and reporting periods, additional information about certain expenses in the financial statements. Further clarified by ASU 2025-01, Income Statement (Topic 220): Reporting Comprehensive Income - Expense Disaggregation Disclosures, Disaggregation of Income Statement Expenses, issued in December 2025. The ASU is effective for annual periods beginning after December 15, 2026, and interim reporting periods beginning after December 15, 2027. Early adoption is permitted and is effective on either a prospective basis or retrospective basis. The Company is currently assessing the potential impacts of ASU 2024-03.
In November 2024, the FASB issued ASU 2024-04, Debt with Conversion and Other Options (Subtopic 470-20) ("ASU 2024-04"), which clarifies the requirements for determining whether certain settlements of convertible debt instruments should be accounted for as an induced conversion. ASU 2024-04 is effective for annual periods beginning after December 15, 2025, and interim reporting periods within those annual reporting periods. Early adoption is permitted for all entities that have adopted the amendments in Update 2020-06. Adoption can be on a prospective or retrospective basis. The Company is currently evaluating the disclosure impact that ASU 2024-04 may have on its financial statement presentation and disclosures.
Management does not believe that any other recently issued, but not yet effective, authoritative guidance, if currently adopted, would have a material impact on the Company’s consolidated financial statement presentation or disclosures.
F-15
Note 3. Revenue and Deferred Revenue
The following table provides the Company’s revenue disaggregated by revenue stream (in thousands):
| For the Years Ended December 31, | ||||||||
| Revenue (in thousands): | 2024 | 2023 | ||||||
| Network design and installation | $ | 7,370 | $ | 3,430 | ||||
| Internet network services and hardware and internet service | 1,125 | 493 | ||||||
| Total | $ | 8,495 | $ | 3,923 | ||||
Remaining performance obligations represent the transaction price of Company orders for which work has not been performed as of the end of a fiscal period. As of December 31, 2024, the aggregate amount of the transaction price allocated to remaining performance obligations was $34.8 million (which represents the amount of our consolidated backlog). $11.5 million of the backlog relates to the network design and installation performance obligations and $23.3 million relates to internet network services and hardware and internet services performance obligations. Additionally, $12.7 million of the $34.8 million relates to jobs that are contracted but not yet started as of December 31, 2024. We estimate that approximately $14.1 million of our remaining performance obligations at December 31, 2024 will be completed and recognized as revenue during 2025, with the remainder recognized between 2026 and 2032.
Changes in the Company’s current deferred revenue balance for the years ended December 31, 2024 and 2023 were as follows (in thousands):
| Balance as of January 1, 2023 | $ | 1,176 | ||
| Additions included in deferred revenue as of end of period | 1,665 | |||
| Revenue recognized from opening balance | (961 | ) | ||
| Balance as of December 31, 2023 | 1,880 | |||
| Additions included in deferred revenue as of end of period | 6,182 | |||
| Revenue recognized from opening balance | (1,847 | ) | ||
| Balance as of December 31, 2024 | $ | 6,215 |
Deferred revenue balances primarily consist of customer deposits and billings in excess of revenue related to the Company's network design and installation performance obligations. As of December 31, 2024 and 2023, all of the Company’s deferred revenue balances were reported as current liabilities in the accompanying consolidated balance sheets.
Changes in the Company's network financing receivable balance for the year ended December 31, 2024 was as follows (in thousands):
| Balance as of January 1, 2024 | $ | — | ||
| Additions | 550 | |||
| Amortization | (37 | ) | ||
| Balance as of December 31, 2024 | $ | 513 |
F-16
Note 4. Accounts Receivable
Receivables are recorded and carried at the original invoiced amount less an allowance for credit losses (in thousands). The opening balance for trade accounts receivable and unbilled receivables as of January 1, 2023, is $1.3 million and $0.1 million, respectively:
| December 31, | December 31, | |||||||
| 2024 | 2023 | |||||||
| Trade accounts receivable | $ | 3,663 | $ | 869 | ||||
| Unbilled receivables | 788 | 29 | ||||||
| Allowance for credit losses | — | — | ||||||
| Accounts receivable, net | $ | 4,451 | $ | 898 | ||||
Note 5. Leases
Lessee
For the year ended December 31, 2024, operating lease expense was $19 thousand. The Company did not have any operating lease expense for the year ended December 31, 2023. For the years ended December 31, 2024 and 2023 the Company had a short-term lease expense of $7 thousand and $14 thousand, respectively. For the years ended December 31, 2024 and 2023 the company had variable lease expense of $4 thousand and $0.
The lease liability is based on the present value of its unpaid minimum lease payments over the lease term, discounted using the interest rate implicit in the lease or, if that rate cannot be readily determined, the incremental borrowing rate which is the rate the Company pays to borrow on a collateralized basis.
The table below presents certain information related to the weighted average remaining lease term and the weighted average discount rate for the Company’s operating leases, as of December 31, 2024:
| Weighted average remaining lease term (in years) - operating leases | 1.50 | |||
| Weighted average discount rate - operating leases | 6.50 | % |
South Carolina Office Lease Agreement
On January 1, 2023, the Company initially entered into a lease for Suite 130 and 1700 Alta Vista Drive in Columbia, SC in which the initial term was January 1, 2023 through December 31, 2023. At the end of the initial lease term (December 31, 2023), the lease became a month to month lease in which either party (the Company or the lessor) could terminate the lease at any time with 30 days notice. The Company leased this space on a month to month basis for six months until June 30, 2024. On May 31, 2024, the Company entered into a new lease with the same lessor for the original Suite 130 and an additional space, Suite 140. The term of the new lease is from July 1, 2024 to June 30, 2026. Total rent is $3,150 per month from July 1, 2024 to June 30, 2025 and $3,276 per month from July 1, 2025 to June 30, 2026.
F-17
Future lease payments for all lease obligations for the following five fiscal years and thereafter are as follows (in thousands):
| Years ending December 31: | Operating Lease | |||
| 2025 | $ | 39 | ||
| 2026 | 20 | |||
| Total minimum lease payments | $ | 58 | ||
| Less effects of discounting | (3 | ) | ||
| Present value of future minimum lease payments | $ | 55 | ||
Lessor
The Company owns certain networks and places them at customer sites under sales-type lease arrangements. The Company evaluates new leases pursuant to FASB ASC 842: Leases to determine lease classification. A lease is classified by a lessor as a sales-type lease if the significant risks and rewards of ownership reside with the customer. This situation is met if, among other things, there is an automatic transfer of title during the lease, a reasonably certain option to be exercised, the non-cancelable lease term is for more than a major part of the remaining economic useful life of the asset, the present value of the minimum lease payments represents substantially all of the leased asset’s fair value at lease inception, or the asset is so specialized in nature that it provides no alternative use to the lessor (and therefore would not provide any future value to the lessor) after the lease term.
The Company's net investment in sales-type leases as of December 31, 2024 and 2023 was $0.5 million and $0, respectively.
The table below reconciles the undiscounted cash flows to be received to the net investment in sales-type leases recorded in the consolidated balance sheets (in thousands):
| Years ending December 31: | ||||
| 2025 | $ | 102 | ||
| 2026 | 102 | |||
| 2027 | 102 | |||
| 2028 | 102 | |||
| 2029 | 102 | |||
| 2030 and thereafter | 265 | |||
| Total minimum lease payments | $ | 775 | ||
| Less: unearned interest | (244 | ) | ||
| Net investment in sales-type leases | $ | 531 | ||
Interest income recognized on lease arrangements for the years ended December 31, 2024 and 2023 is included in interest expense, net, on the consolidated statements of operations, and is presented below:
| For the Years Ended December 31, | ||||||||
| 2024 | 2023 | |||||||
| Lease income - sales-type leases | $ | 24 | $ | — | ||||
| Total lease income | $ | 24 | $ | — | ||||
F-18
Note 6. Related Party Debt
The Company's debt consisted of (in thousands):
| December 31, | ||||||||
| 2024 | 2023 | |||||||
| Related Party Debt, current: | ||||||||
| Apogee Telecom Promissory Note | $ | — | $ | 165 | ||||
| Apogee Telecom Installment Payment Agreement | — | 345 | ||||||
| Endurance Loan | 222 | — | ||||||
| Motherlode Promissory Note | 185 | — | ||||||
| Network Service Agreements | 288 | 36 | ||||||
| Related Party Debt, current | $ | 695 | $ | 546 | ||||
| Related Party Debt, net of current | ||||||||
| Apogee Telecom Promissory Note | $ | — | $ | 491 | ||||
| Endurance Loan | 741 | — | ||||||
| Motherlode Promissory Note | 683 | — | ||||||
| Network Service Agreements | 1,051 | 182 | ||||||
| Endurance Business Loan | 250 | — | ||||||
| Related Party Debt, net of current | $ | 2,725 | $ | 673 | ||||
Apogee Telecom Promissory Note (December 6, 2019)
On December 6, 2019 the Company entered into a promissory note (the “Apogee Promissory Note") with Apogee Telecom, Inc., a Texas Corporation ("Apogee"), a related company connected from a board member and shareholder of the Company, where Apogee loaned $800 thousand, to the Company in exchange for the Apogee Promissory Note. The Apogee Promissory Note had a maturity date of November 30, 2026 and bears interest at 10.0%, compounded annually. No principal or interest payments were due until December 31, 2021, at which point principal and interest were paid in equal monthly installments of $19 thousand. During the years ended December 31, 2024 and 2023, the Company incurred $18 thousand and $68 thousand of interest expense, which is recognized in interest expense in the consolidated statements of operations. As part of the Series Seed Repurchase Agreement this was paid off in its entirety on April 12, 2024 (see Note 8). As of December 31, 2024 and 2023, the Apogee Promissory Note had a balance of $0 and $0.7 million, respectively. Subsequent to April 12, 2024, Apogee is no longer a related party of the Company.
Apogee Telecom Installment Payment Agreement (February 28, 2023)
On February 28, 2023, the Company entered into an installment payment agreement (the “Apogee Installment Payment Agreement") with Apogee, whereas Apogee provided hardware and peripheral equipment related to the Company's primary services. Per the Apogee Installment Payment Agreement the Company owed a principal balance of $0.4 million, which is to be paid in installments over a term of twenty three months. The Apogee Installment Payment Agreement had a maturity date of December 31, 2024, and bore interest at 12.0%, compounded annually. During the years ended December 31, 2024 and 2023, the Company incurred $15 thousand and $42 thousand, respectively, of interest expense, which is recognized in interest expense in the consolidated statements of operations. As of December 31, 2024 and 2023, the Apogee Promissory Note had a balance of $0 and $0.3 million, respectively. As part of the Series Seed Repurchase Agreement this was paid off in its entirety on April 12, 2024 (see Note 8). As noted above, subsequent to April 12, 2024, Apogee is no longer a related party of the Company.
F-19
Endurance Loan (April 1, 2024)
On April 1, 2024 the Company entered into a fixed rate loan agreement (the “Endurance Loan") with Endurance Opportunities I, LLC ("Endurance"), a related party owned by a member of management and certain shareholders, where Endurance loaned $1.0 million, to the Company in exchange for the Endurance Loan. The Endurance Loan has a maturity date of May 1, 2029 and bears interest at 18.0%, compounded annually. Monthly payments are required under the Endurance Loan of $15 thousand through October 2024 and $19 thousand, thereafter through maturity. During the year ended December 31, 2024, the Company incurred $0.1 million of interest expense, which is recognized in interest expense in the consolidated statements of operations. As of December 31, 2024, the Endurance Loan had a balance of approximately $1.0 million.
Motherlode Promissory Note (April 12, 2024)
On April 12, 2024 the Company entered into a promissory note (the “Motherlode Promissory Note") with Motherlode LLC.("Motherlode"), a related party shareholder, where Motherlode loaned $1.0 million, to the Company in exchange for the Motherlode Promissory Note. The Motherlode Promissory Note has a maturity date of April 30, 2029 and bears interest at 6.0%, compounded annually. During the term of the Motherlode Promissory Note, the Company is to pay monthly installments of $19 thousand. During the year ended December 31, 2024 the Company incurred $42 thousand of interest expense, which is recognized in interest expense in the consolidated statements of operations. As of December 31, 2024, the Motherlode Promissory Note had a balance of $0.9 million.
Network Service Agreements (Various dates in 2024)
The Company has entered into a certain network service agreement (the “Network Service Agreements" or the “NSAs”) with various customers, pursuant to which the Company will perform or has performed the design, installation, and management of a telecommunications network for the customer in financed project amounts ranging from $50 thousand to $550 thousand (the "Project Financing"). During the years ended December 31, 2024 and December 31, 2023, Endurance financed $1.2 million and $0.2 million, respectively. The Company notes $0.5 million of the amount financed during the year ended December 31, 2024, relates to the sales-type lease (see Note 5). As of December 31, 2024 and December 31, 2023, the NSAs had a balance of $1.3 million and $0.2 million, respectively. As of December 31, 2024, repayments on these agreements are made monthly and range from $1 thousand to $9 thousand.
As part of each Project Financing, the Company sold an undivided interest in the NSA, to Endurance, and interest shall accrue at a rate of 16.5% per annum, with respect to any payments owed to Endurance by the Company, or advances owed to Endurance by the Company, not made when due. In exchange, for the financing, the Company and Endurance have entered into various participation and agency agreements (the "Participation and Agency Agreements), whereby Endurance is granted an undivided participation interest entitling Endurance to receive payments in relation to each respective NSA. At any time the Participation and Agency Agreement is outstanding, the Company shall have the right to repurchase Endurance' interest at par value, with par meaning all outstanding principal, unpaid interest, and fees. If Endurance' interest under these Participation and Agency Agreements remains outstanding twenty four (24) months after the service activation date under each respective NSA, Endurance shall have the option to require repurchase by the Company of Endurance' interest, at par value. Interest expense related to these network service agreements are presented net of interest income received from network financing receivables, which accrues interest income at the same rate as the NSAs.
Endurance Business Loan
On November 12, 2024 the Company entered into a fixed rate loan agreement (the “Endurance Business Loan") with Endurance, a related party, where Endurance loaned $0.3 million to the Company. The Endurance Business Loan has a maturity date of May 2026 and bears interest at 16.5% per year. During the year ended December 31, 2024, the Company incurred $6 thousand of interest expense, which is recognized in interest expense in the consolidated statements of operations. As of December 31, 2024, the Endurance Business Loan had a balance of $0.3 million.
F-20
As of December 31, 2024, future minimum principal payments on all related party debt, excluding accrued interest amounts, were as follows (in thousands):
| Years ending December 31: | ||||
| 2025 | $ | 695 | ||
| 2026 | 956 | |||
| 2027 | 718 | |||
| 2028 | 731 | |||
| 2029 | 306 | |||
| Thereafter | 14 | |||
| Total future payments | $ | 3,420 | ||
Note 7. Related Party Payables
Management Agreement (December 6, 2019, was not renewed post 2022)
On December 6, 2019 the Company entered into a management agreement (the “Management Agreement") with Elauwit Connection, LLC, a Wyoming limited liability company ("Elauwit LLC"), a related party, that was dissolved in October 2024, whereby certain key persons of Elauwit LLC, shall provide management services to manage all aspects of the Company, subject to supervision and oversight by the Company's board of directors (the "Board"). The key persons ("Key Persons") who will supervise all services include the Executive Chairman and the Chief Executive Officer of the Company. In consideration of the services provided by the Key Persons, the Company paid Elauwit LLC a sum of $45 thousand per month during the initial year of the Management Agreement, subject to potential annual increases and other compensation, as determined by the Board. The term of the agreement was three (3) years commencing on December 1, 2019 and terminated on November 30, 2022. Beginning in December 2020, the Key Persons elected to defer portions of their consideration. On August 20, 2024, as part of the Deferred Compensation Agreement, defined below, the Company is to pay the Key Persons $0.5 million, at an interest rate of 3.25%, on cumulative balances owed. During the years ended December 31, 2024 and 2023, the Company incurred $17 thousand and $18 thousand of interest expense, respectively, which is recognized in interest expense in the consolidated statements of operations. As of December 31, 2024 and 2023, the Deferred Compensation Agreement had a balance of $0.5 million and $0.5 million, respectively.
Post November 30, 2022, the Company continued making payments under an informal agreement to same Key Persons. During the years ended December 31, 2024 and 2023, the Company incurred expenses of $335 thousand and $225 thousand, included in selling, general, and administrative expenses on the consolidated statements of operations.
Deferred Compensation Agreement (August 20, 2024)
On August 20, 2024 the Company entered into a deferred compensation agreement (the “Deferred Compensation Agreement") with certain executives of the Company, whereby the executives, deferred a certain portion of their salaries. The deferred salaries bear interest of 3.25%, on all cumulative balances outstanding as of February 1, 2022. The Company pays each of the executives $2.5 thousand per month and there is no fixed maturity date. During the years ended December 31, 2024 and 2023, the Company incurred $4 thousand and $5 thousand of interest expense, respectively, which is recognized in interest expense in the consolidated statements of operations. As of December 31, 2024 and 2023, the Deferred Compensation Agreement had a balance of $0.1 and $0.1 million, respectively.
F-21
Note 8. Equity Offerings
Class A and Class B Common Stock
Voting
The holders of the common stock, are entitled to one vote for each share of common stock.
Effective if and when the Securities and Exchange Commission grants final approval of the Corporation’s Form S-1 Filing immediately and without any further action by the Corporation, (i) the holders of the Class A Common Stock shall be entitled to one vote for each share of Class A Common Stock held at all meetings of stockholders and (ii) the holders of Class B Common Stock are entitled to ten (10) votes for each share of common stock held at all meetings of stockholders (and written actions in lieu of meetings). The enhanced voting rights of the Class B Common Stock will terminate upon the occurrence of certain conditions, as defined in the Company's Certificate of Incorporation. Once the enhanced voting rights of the Class B Common Stock terminate, and the holder of Class B Common Stock will be entitled to only one vote for each share of Class B Common Stock.
Dividend and Distribution Rights.
Shares of Class A Common Stock and Class B Common Stock shall be treated equally, identically and ratably, on a per share basis, with respect to any dividends or distributions as may be declared and paid from time to time by the Board of Directors out of any assets of the Corporation legally available therefor; provided, however, that in the event a dividend is paid in the form of shares of Class A Common Stock or Class B Common Stock (or rights to acquire such shares), then holders of Class A Common Stock shall receive shares of Class A Common Stock (or rights to acquire such shares, as the case may be) and holders of Class B Common Stock shall receive shares of Class B Common Stock (or rights to acquire such shares, as the case may be).
Merger or Consolidation.
In the case of any distribution or payment in respect of the shares of Class A Common Stock or Class B Common Stock upon the consolidation or merger of the Corporation with or into any other entity, or in the case of any other transaction having an effect on stockholders substantially similar to that resulting from a consolidation or merger, such distribution or payment shall be made ratably on a per share basis among the holders of the Class A Common Stock and Class B Common Stock as a single class.
Voluntary Conversion of Class B Common Stock.
Each share of Class B Common Stock shall be convertible into one (1) fully paid and nonassessable share of Class A Common Stock at the option of the holder thereof at any time upon written notice to the Company.
Automatic Conversion of Class B Common Stock
Each share of Class B Common Stock shall be automatically converted into one share of Class A Common Stock, upon the occurrence of any transfer of such share of Class B Common Stock and (b) all shares of Class B Common Stock shall be automatically converted into an identical number of shares of Class A Common Stock upon a conversion event.
Put and Call Option Agreements
Baron Hunter Group, LLC and Steele Creek Partners, LLC, related parties through common management, have entered into separate agreements with the Company whereby each was granted the right to sell to the Company ("Put Option") up to a $2.0 million value of common shares of the Company at a discount of 10% below the IPO issue price, limited to the lesser of $2.0 million or 10% of the IPO gross offering proceeds, exercisable for a period of ten (10) business days following the effective date of the IPO. The Company was granted the right to purchase (Call Option) up to a maximum of $2.0 million of common shares from each of Baron Hunter Group, LLC and Steele Creek Partners, LLC, at a premium of 10% in excess of the IPO issue price, limited to the lesser of $2.0 million or 10% of the IPO gross offering proceeds, exercisable for a period of ten (10) business days following the effective date of the IPO.
F-22
Common Stock
Founder Stock Purchase Agreement
On December 6, 2019, the Company and Elauwit LLC (the "Purchaser") entered into a stock purchase agreement (the "Elauwit Stock Purchase Agreement") whereby the Company sold 600,000 shares of Common Stock, $0.0001 par value per share, at a purchase price of $0.50 per share for a total gross purchase price of $0.3 million. The total gross purchase price consisted of a cash payment to the Company of $0.2 million together with the payment by the Purchaser of $0.1 million for formation of the Company and business startup expenses.
Stock Purchase Agreement
On January 31, 2022, the Company and Elauwit LLC entered into a Stock Purchase Agreement whereby the Company sold 80,000 shares of Common Stock, $0.0001 par value per share, at a purchase price of $5.00 per share for a total purchase price of $0.4 million.
Preferred Stock
Series Seed Convertible Preferred Stock
On December 6, 2019, the Company and Motherlode, a related party at the time, entered into a Stockholders Agreement (the "Series Seed Agreement"), whereby the Company sold 250,000 shares of Series Seed Preferred Stock, $0.0001 par value per share (the “Series Seed Preferred Stock”), at a purchase price of $4.00 per share.
The holders of the Series Seed Preferred Stock have the following rights and preferences.
Voting
The Series Seed Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. Holders of Preferred Stock shall vote together with the holders of Common Stock as a single class and on an as-converted to Common Stock basis.
Conversion
Each share of Series Seed Preferred Stock is convertible, at the option of the holder thereof, at any time into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Original Issue Price for the series of Preferred Stock by the Conversion Price for that series of Preferred Stock in effect at the time of conversion. The "Conversion Price" for each series of Preferred Stock means the Original Issue Price for such series of Preferred Stock, which initial Conversion Price, and the rate at which shares of Preferred Stock may be converted into shares of Common Stock, is subject to adjustment.
Redemption
The Series Seed Preferred Stock is only redeemable under a Deemed Liquidation Event (as defined below).
F-23
Dividends
From and after the date of the issuance of any shares of Preferred Stock, dividends at the rate per annum of 10% of the Original Issue Price, shall accrue on such shares of Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Preferred Stock) (the “Accruing Dividends”). Accruing Dividends shall accrue from day to day, whether or not declared, and shall be cumulative; provided. However, Accruing Dividends shall be payable only when, as, and if declared by the Board of Directors and the Corporation shall be under no obligation to pay such Accruing Dividends.
As of December 31, 2024 and 2023, the Company has cumulative dividends of $0 and $0.4 million on the Series Seed Preferred Stock. Upon conversion of preferred stock into common stock, cumulative and undeclared dividends are forfeited.
Liquidation
In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of shares of Series Seed Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders, and in the event of a Deemed Liquidation Event (as defined below), the holders of shares of Preferred Stock then outstanding shall be entitled to be paid out of the consideration payable to stockholders in such Deemed Liquidation Event or out of the Available Proceeds (as defined below), as applicable, before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount per share equal to the greater of (i) the Original Issue Price, plus any dividends declared but unpaid thereon or (ii) such amount per share as would have been payable had all shares of Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amount payable pursuant to this sentence is hereinafter referred to as the “Liquidation Amount”).
A Deemed Liquidation Event includes a merger or consolidation in which the Company is a constituent party or a subsidiary of the Company is a constituent party and the Company issues shares of its capital stock pursuant to such merger or consolidation, as well as a (1) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company of all or substantially all the assets of the Company and its subsidiaries taken as a whole, or (2) the sale or disposition (whether by merger, consolidation or otherwise, and whether in a single transaction or a series of related transactions) of one or more subsidiaries of the Company if substantially all of the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Company.
The Series Seed Preferred Stock is classified as mezzanine equity on the consolidated balance sheets as it is contingently redeemable in the event of a change of control that is not solely within the Company’s control.
Prior to the repurchase of the Series Seed Preferred Stock on April 12, 2024, as further discussed below, the Company’s Series Seed Preferred Stock consisted of the following:
| Shares Authorized | Shares Issued and Outstanding | Carrying Value | Original Issue Price | Conversion Price | Common Shares Upon Conversion | |||||||||||||||||
| 250,000 | 250,000 | $ | 1,000,000 | $ | 4.00 | $ | 4.00 | 250,000 | ||||||||||||||
The Series Seed Preferred Stock is recorded on the accompanying consolidated balance sheets at its redemption value which is the carrying value of the redeemable preferred stock.
F-24
Series Seed Stock Repurchase Agreement
On April 12, 2024, the Company and Motherlode entered into a Stock Repurchase Agreement (the "Series Seed Stock Repurchase Agreement"), whereby the Company repurchased from Motherlode, 250,000 shares of Series Seed Preferred Stock, $0.0001 par value per share, at a purchase price of $4.00 per share, or $1 million in aggregate (the "Purchase Price"). The Purchase Price consists of the Motherlode Promissory Note (see Note 6), and is secured by personal guarantees of the Company's personnel. Additionally, as part of the closing, the Company shall pay to Apogee, all amounts due under the Apogee Promissory Note, in the amount of approximately $619 thousand. Additionally, the Company, shall pay all amounts remaining due under the Apogee Installment Payment Agreement, in the amount of approximately $330,000, together with a remaining hardware invoice in the amount of approximately $38,000. As part of the closing, certain principals of Motherlode resigned from the Board of Directors of the Company, as such Motherlode is no longer considered an ongoing related party.
Series B Convertible Preferred Stock
On various dates from January of 2022 through June of 2024 the Company entered into the Stock Purchase Agreements with certain investors, relating to the issuance and sale by the Company to the investors of up to 327,067 shares of Series B Preferred Stock (the “Series B Preferred Stock”) for an aggregate purchase price ranging from $10.00 to $16.56 per share of Series B Preferred Stock .
On various dates from January of 2022 through June of 2024, the Company and the investors completed the issuance and sale of 320,522 shares of Series B Preferred Stock for an aggregate purchase price of $4.8 million. In addition, in lieu of cash, the Company issued on various dates 6,545 Series B Preferred Stock to vendors and shareholders as compensation for services rendered. The Company determined the fair value of the 6,545 shares issued for services based on the Series B Preferred Stock price from recent sales.
In connection with the issuance of the Series B Preferred Stock, the Company incurred direct and incremental expenses of $0.1 million, comprised of legal fees and shares paid-in-kind for finders’ fees, which were expensed as incurred as they were de minimis.
Prior to the conversion of the Series B Preferred Stock on August 20, 2024, as further discussed below, the Company’s Series B Preferred Stock consisted of the following:
| Shares Authorized | Shares Issued and Outstanding | Carrying Value | Original Issue Price | Conversion Price | Common Shares Upon Conversion | |||||||||||||||||
| 327,067 | 327,067 | $ | 5,298,006 | $ | 10.00 - $16.56 | $ | 10.00 - $16.56 | 327,067 | ||||||||||||||
At December 31, 2023, the Series B Preferred Stock is recorded on the accompanying consolidated balance sheets at its redemption value which is the carrying value of the redeemable preferred stock.
The holders of the Series B Preferred Stock have the same rights and preferences as holders of Series Seed Preferred Stock above.
As of December 31, 2024 and 2023, the Company has cumulative dividends of $0 and $0.2 million on the Series B Preferred Stock. Upon conversion of preferred stock into common stock, cumulative and undeclared dividends are forfeited.
The Series B Preferred Stock is classified as mezzanine equity on the accompanying consolidated balance sheets as it is contingently redeemable in the event of a change of control that is not solely within the Company’s control.
Conversion of Series B Preferred Stock
On August 20, 2024, the Series B Preferred Stock Holders agreed to convert the Series B Preferred Shares into Common Stock of the Company, on a one-for-one basis, into an aggregate 327,067 common shares of the Company in accordance with the original conversion terms and conditions. In connection with the reverse recapitalization, the 327,067 common shares were exchanged in accordance with the exchange ratio of 4.11795:1, therefore, 1,346,846 shares of Class A and Class B common shares were issued.
F-25
Note 9. Employee Benefit Plan
In April 2024, the Company established a Safe Harbor 401(k) contribution plan under Section 401(k) of the Internal Revenue Code (“401(k) Plan”). Under the terms of the 401(k) Plan, all full-time employees were eligible to make voluntary contributions as a percentage or defined amount of compensation. The Company made matching contributions based on 100% of each employee’s contribution up to the first 3% of pay and then on 50% of employee contributions on the next 2% of pay of the employee's eligible compensation. The Company had expenses related to the matching contribution for the year ended December 31, 2024 and December 31, 2023 of approximately $51 thousand and $61 thousand, respectively.
Note 10. Income Taxes
The Company has no foreign operations and the Company's federal and state income tax provision is summarized as follows (in thousands):
| For the Years Ended December 31, | ||||||||
| 2024 | 2023 | |||||||
| Current | ||||||||
| Federal | $ | — | $ | — | ||||
| State | 1 | — | ||||||
| 1 | — | |||||||
| Deferred | ||||||||
| Federal | — | — | ||||||
| State | — | — | ||||||
| — | — | |||||||
| Income tax expense | $ | 1 | $ | — | ||||
A reconciliation of the differences between the U.S. statutory federal income tax rate and the effective tax rate as provided in the consolidated statements of operations is as follows:
| For the Years Ended December 31, | ||||||||
| 2024 | 2023 | |||||||
| Tax computed at the federal statutory rate | 21 | % | 21 | % | ||||
| Nondeductible expenses | — | % | — | % | ||||
| State income taxes, net of federal benefits | 1 | % | 1 | % | ||||
| Change in valuation allowance | (22 | )% | (22 | )% | ||||
| — | % | — | % | |||||
Deferred income taxes reflect the net tax effects of (a) temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for tax purposes, and (b) operating losses and tax credit carryforwards.
F-26
The tax effects of significant components of the Company’s deferred tax assets (liabilities) are as follows (in thousands):
| December 31, | ||||||||
| 2024 | 2023 | |||||||
| Deferred tax assets: | ||||||||
| Net operating loss carryforwards | $ | 2,361 | $ | 1,145 | ||||
| Deferred salaries | 20 | 26 | ||||||
| Accrued incentives | 6 | — | ||||||
| Percentage-completion-method to completed contract method | — | 315 | ||||||
| Accrued incentive compensation | — | 31 | ||||||
| Operating lease liabilities | 12 | — | ||||||
| Total gross deferred tax assets | 2,399 | 1,517 | ||||||
| Deferred tax liabilities: | ||||||||
| Percentage-completion-method to completed contract method | (103 | ) | — | |||||
| Operating lease right-of-use assets | (12 | ) | — | |||||
| Total gross deferred tax liabilities | (115 | ) | — | |||||
| Valuation allowance | (2,284 | ) | (1,517 | ) | ||||
| Total deferred taxes | $ | — | $ | — | ||||
At December 31, 2024, and December 31, 2023 the Company had available Federal Net Operating Loss (NOL) carryforwards of $10.5 million and $5.0 million, respectively. For State purposes, such NOL carryforwards were $6.0 million and $4.3 million, respectively. The net operating losses do not expire. Use of these NOL carryforwards may be significantly limited under the tax rules regarding the use of losses following an ownership change under Internal Revenue Code (“IRC”) Section 382.
The valuation allowance relates to deferred tax assets for certain items that will be deductible for income tax purposes under very limited circumstances and for which the Company believes it is not more likely than not that it will realize the associated tax benefit. However, in the event that the Company determines that it would be able to realize more or less than the recorded amount of net deferred tax assets, an adjustment to the deferred tax asset valuation allowance would be recorded in the period such a determination is made. In assessing the realizability of deferred tax assets, management considers whether it is more-likely-than-not that some portion of all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities (including the impact of available carryback and carryforward periods), projected future taxable income, and tax planning strategies in making this assessment. Based upon the levels of historical taxable income, projections of future taxable income and the reversal of deferred tax liabilities over the periods in which the deferred tax assets are deductible, management believes it is more-likely-than-not that the Company will not realize the benefits of these deductible differences, net of the existing valuation allowance. The amount of deferred tax asset considered realizable, however, could change in the near term if estimates which require significant judgment of future taxable income during the carryforward period are increased or decreased. Based upon the level of historical pre-tax loss, as well as projections of future taxable income over the periods which deferred tax assets are deductible, management determined that it is more likely than not that the Company may not realize the net deferred tax assets recorded as of December 31, 2024. Accordingly, a valuation allowance of $2.3 million, an increase of approximately $0.8 million from the valuation allowance of $1.5 million as of December 31, 2023, was recorded against net deferred tax assets as of December 31, 2024.
F-27
The Company files income tax returns as prescribed by tax laws of the jurisdictions in which it operates. In the normal course of business, the Company is subject to examination by federal, state and local jurisdictions where applicable based on the statute of limitations that apply in each jurisdiction. The Company has no open income tax audits with any taxing authority as of December 31, 2024. The Company is still subject to income tax examinations by U.S. federal and state tax authorities for the years 2021 through 2023. However, to the extent allowed by law, the tax authorities may have the right to examine prior periods where net operating losses were generated and carried forward, and make adjustments up to the amount of the net operating loss carryforward amount.
Note 11. Commitments and Contingencies
In the normal course of business, the Company is at times subject to pending and threatened legal actions. In management’s opinion, any potential loss resulting from the resolution of these matters will not have a material effect on the results of operations, financial position or cash flows of the Company.
As of December 31, 2024, the Company had no outstanding litigation.
Phantom Stock Awards
The Company has an authorized Phantom Equity Plan to grant phantom stock units to key employees of the Company as a means to provide deferred compensation. The Phantom Equity Payments (“Rights”) are cash settled and calculated by reference to the value of the Company as of the date of the award of such Rights as determined in accordance with the Plan. The maximum amount of all Rights authorized by the Plan shall be 10% of the Company's total appreciation above the market value of the Company as determined in accordance the Plan. Upon a payment event in accordance with the Plan, a participants right to any unvested Rights would terminate and be cancelled without any further payment. Rights will also terminate and be forfeited if the participant is terminated for cause. If a participant breaches any noncompetition, confidentially, nonsolicitation, noninterference or nondisclosure agreement, all unvested and vested Rights will terminate and be forfeited and the participant would be required to repay immediately any payments previously made.
During the years ended December 31, 2024 and 2023, the Company did not grant any phantom stock awards. Prior to December 31, 2023, the Company granted 55,000 phantom stock awards. As of December 31, 2023, 30,000 phantom stock awards did not vest and were forfeited. The phantom stock awards are accounted for as a liability under ASC 718 and as of December 31, 2023 the Company had a liability of $116 thousand on the consolidated balance sheets. In September 2024, the 25,000 vested phantom stock awards were exchanged for Class B common stock, at an exchange of 4.11785:1, for 102,949 shares, as a result of the merger and recapitalization transaction with DeltaMax as described in Note 1. At December 31, 2024, there are no phantom stock awards outstanding.
Information related to phantom stock awards was as follows, dollars in thousands:
| December 31, | ||||||||
| 2024 | 2023 | |||||||
| Accrued compensation cost liability | $ | — | $ | 116 | ||||
| Equivalent common shares | — | 25,000 | ||||||
Note 12. Net Loss per Share
Participating securities have the effect of diluting both basic and diluted earnings per share during periods of income. During periods of loss, no loss is allocated to the participating securities since the holders have no contractual obligation to share in the losses of the Company.
At December 31, 2024 there were no common share equivalents outstanding.
F-28
Anti-dilutive common share equivalents excluded from the computation of diluted net loss per share at December 31, 2023 consisted of Series B convertible preferred stock of 176,932, Series Seed convertible preferred stock of 250,000 and phantom stock awards of 25,000.
Note 13. Subsequent Events
The Company evaluated subsequent events and transactions that occurred after the balance sheet date up to the date that the financial statements were issued. Based upon this review, the Company did not identify any subsequent events that would have required adjustment or disclosure in the financial statements.
Lease
On January 2, 2025, the Company entered into its first amendment to the South Carolina Office Lease ("Amended SC Lease") to expand into an additional suite with approximately 1,950 additional square feet for a total of approximately 5,950 square feet of office space. The Amended SC Lease commencement date is February 1, 2025 and runs concurrently with the existing terms and conditions of the lease, through June 30, 2026. On the Amended SC Lease commencement date, the Company will reevaluate and record an adjusted operating lease liability and corresponding right-of-use asset.
Strategic Investment
On January 6, 2025, the Company entered into a Simple Agreement for Future Equity (the “SAFE Agreement”) with an investor (the “Investor”). Pursuant to the terms of the SAFE Agreement, the Company will receive an aggregate amount of $1.0 million (the “SAFE Amount”). In the event of an equity financing, as defined in the SAFE Agreement, the investment made pursuant to the SAFE Agreement will be automatically converted into the number of shares of the Company based on the lowest price per share of the Class A Common Stock sold in the future equity financing multiplied by a discount price of 85%.
Endurance Loans
On March 1, 2025, the Company entered into a fixed rate loan agreement with Endurance, where Endurance loaned $0.5 million to the Company. The Endurance Loan has a maturity date of eighteen months and bears interest at 16.5%. Quarterly payments of interest are required with outstanding principal amount of the loan due on the maturity date.
On March 25, 2025, the Company entered into a fixed rate loan agreement with Endurance, where Endurance loaned $0.5 million. The Endurance Loan has a maturity date of ninety days and bears interest at 16.5%. Monthly payments of interest are required with outstanding principal amount of the loan due on the maturity date.
F-29
ELAUWIT CONNECTION, INC
Condensed Consolidated Balance Sheets
(in thousands, except share and par value data)
| June 30, 2025 | December 31, 2024 | |||||||
| Unaudited | ||||||||
| ASSETS | ||||||||
| Current Assets | ||||||||
| Cash | $ | 525 | $ | 287 | ||||
| Accounts receivable | 6,953 | 4,451 | ||||||
| Inventories | 1,244 | 1,606 | ||||||
| Network financing receivable, current | 77 | 67 | ||||||
| Prepaid expenses and other current assets | 252 | 258 | ||||||
| Total current assets | 9,051 | 6,669 | ||||||
| Network financing receivable | 906 | 446 | ||||||
| Lease right-of-use assets, net | 54 | 55 | ||||||
| Net investment in lease | 508 | 531 | ||||||
| Other non-current assets | 26 | 25 | ||||||
| TOTAL ASSETS | $ | 10,545 | $ | 7,726 | ||||
| LIABILITIES AND STOCKHOLDERS' DEFICIT | ||||||||
| Current Liabilities | ||||||||
| Accounts payable | $ | 2,886 | $ | 1,914 | ||||
| Accrued expenses and other current liabilities | 44 | 76 | ||||||
| Related party debt, current | 1,451 | 695 | ||||||
| Related party payables, current | 240 | 240 | ||||||
| Deferred revenue | 6,895 | 6,215 | ||||||
| Operating lease liabilities, current | 56 | 36 | ||||||
| Total current liabilities | 11,572 | 9,176 | ||||||
| Related party debt, net of current | 2,627 | 2,725 | ||||||
| Related party payables, net of current | 231 | 342 | ||||||
| SAFE liability | 1,000 | — | ||||||
| Operating lease liabilities, net of current | — | 19 | ||||||
| Total liabilities | 15,430 | 12,262 | ||||||
| Commitments and contingencies (see Note 11) | ||||||||
| Stockholders' Deficit | ||||||||
| Preferred stock, $0.0001 par value, 100,000 and 577,067 authorized as of June 30, 2025 and December 31, 2024; none designated as of June 30, 2025 and December 31, 2024 | — | — | ||||||
| Class A common stock, $0.00001 par value, 12,000,000 and 7,000,000 authorized as of June 30, 2025 and December 31, 2024, 2,522,950 and 2,497,950 shares issued as of June 30, 2025 and December 31, 2024 | — | — | ||||||
| Class B common stock, $0.00001 par value, 2,900,000 and 3,000,000 authorized as of June 30, 2025 and December 31, 2024, 2,477,050 and 2,502,050 shares issued as of June 30, 2025 and December 31, 2024 | — | — | ||||||
| Stock subscription receivable | — | (30 | ) | |||||
| Additional Paid-in Capital | 5,859 | 5,859 | ||||||
| Accumulated deficit | (10,744 | ) | (10,365 | ) | ||||
| Total stockholders' deficit | (4,885 | ) | (4,536 | ) | ||||
| TOTAL LIABILITIES AND STOCKHOLDERS’ DEFICIT | $ | 10,545 | $ | 7,726 | ||||
See accompanying notes to unaudited condensed consolidated financial statements.
| F-30 |
ELAUWIT CONNECTION, INC
Condensed Consolidated Statements of Operations
(in thousands, except share and per value data)
(UNAUDITED)
| Six Months Ended June 30, | ||||||||
| 2025 | 2024 | |||||||
| Revenues | ||||||||
| Revenues | $ | 11,691 | $ | 3,298 | ||||
| Cost of revenues | ||||||||
| Cost of revenue | 8,707 | 2,628 | ||||||
| Gross profit | 2,984 | 670 | ||||||
| Operating expenses | ||||||||
| General and administrative | 3,109 | 1,941 | ||||||
| Sales and marketing | 64 | 28 | ||||||
| Research and development | — | 1 | ||||||
| Total operating expenses | 3,173 | 1,970 | ||||||
| Operating loss | (189 | ) | (1,300 | ) | ||||
| Other expense, net | ||||||||
| Interest expense, net | (186 | ) | (112 | ) | ||||
| Total other expense, net | (186 | ) | (112 | ) | ||||
| Loss from operations before income taxes | (375 | ) | (1,412 | ) | ||||
| Income tax expense | 4 | 1 | ||||||
| Net loss | $ | (379 | ) | $ | (1,413 | ) | ||
| Net loss per share attributable to common stockholders, basic and diluted | $ | (0.08 | ) | $ | (0.50 | ) | ||
| Weighted average common shares used in computing net loss per share, basic and diluted | 5,000,000 | 2,800,206 | ||||||
See accompanying notes to unaudited condensed consolidated financial statements.
| F-31 |
ELAUWIT CONNECTION, INC
Condensed Consolidated Statements of Mezzanine Equity and Stockholders' Deficit
(in thousands, except share data)
(UNAUDITED)
For the Six Months Ended June 30, 2025 and 2024
| Mezzanine Equity | Common Stock | ||||||||||||||||||||||||||||||||||||||||||||
| Series Seed
Convertible Preferred Stock | Series B
Convertible Preferred Stock | Common Stock | Class A
Common Stock | Class B
Common Stock | |||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Additional Paid-In- Capital | Accumulated Deficit | Stock Subscription Receivable | Total Stockholders' Deficit | ||||||||||||||||||||||||||||||||
| Balance at December 31, 2024 | — | $ | — | — | $ | — | — | $ | — | 2,497,950 | $ | — | 2,502,050 | $ | — | $ | 5,859 | $ | (10,365 | ) | $ | (30 | ) | $ | (4,536 | ) | |||||||||||||||||||
| Repayment of stock subscription receivable | — | — | — | — | — | — | — | — | — | — | — | — | 30 | 30 | |||||||||||||||||||||||||||||||
| Transfer and conversion of Class B Common Stock to Class A Common Stock | — | — | — | — | — | — | 25,000 | — | (25,000 | ) | — | — | — | — | — | ||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | — | — | — | — | — | (379 | ) | — | (379 | ) | |||||||||||||||||||||||||||||
| Balance at June 30, 2025 | — | $ | — | — | $ | — | — | $ | — | 2,522,950 | $ | — | 2,477,050 | $ | — | $ | 5,859 | $ | (10,744 | ) | $ | — | $ | (4,885 | ) | ||||||||||||||||||||
| Mezzanine Equity | Common Stock | ||||||||||||||||||||||||||||||||||||||||||||
| Series Seed Convertible Preferred Stock | Series B
Convertible Preferred Stock | Common Stock | Class A
Common Stock | Class B
Common Stock | |||||||||||||||||||||||||||||||||||||||||
| Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Shares | Amount | Additional Paid-In- Capital | Accumulated Deficit | Stock Subscription Receivable | Total Stockholders' Deficit | ||||||||||||||||||||||||||||||||
| Balance at December 31, 2023 | 250,000 | $ | 1,000 | 176,932 | $ | 2,382 | 2,800,206 | $ | — | — | $ | — | — | $ | — | $ | 625 | $ | (6,891 | ) | $ | (30 | ) | $ | (6,296 | ) | |||||||||||||||||||
| Repurchase and retirement of Series Seed Preferred Stock, at cost | (250,000 | ) | (1,000 | ) | — | — | — | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||
| Issuance of Series B Convertible Preferred Stock | — | — | 143,590 | 2,378 | — | — | — | — | — | — | — | — | (598 | ) | (598 | ) | |||||||||||||||||||||||||||||
| Issuance of Series B Convertible Preferred Stock to pay for services | — | — | 4,745 | 79 | — | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||||||
| Net loss | — | — | — | — | — | — | — | — | — | — | — | (1,413 | ) | — | (1,413 | ) | |||||||||||||||||||||||||||||
| Balance at June 30, 2024 | — | $ | — | 325,267 | $ | 4,839 | 2,800,206 | $ | — | — | $ | — | — | $ | — | $ | 625 | $ | (8,304 | ) | $ | (628 | ) | $ | (8,307 | ) | |||||||||||||||||||
See accompanying notes to unaudited condensed consolidated financial statements.
| F-32 |
ELAUWIT CONNECTION, INC
Condensed Consolidated Statements of Cash Flows
(in thousands)
(UNAUDITED)
| For the Six Months Ended June 30, | ||||||||
| 2025 | 2024 | |||||||
| CASH FLOWS FROM OPERATING ACTIVITIES: | ||||||||
| Net loss | $ | (379 | ) | $ | (1,413 | ) | ||
| Adjustments to reconcile net loss to net cash used in operating activities: | ||||||||
| Right of use asset amortization expense | 26 | — | ||||||
| Issuance of Series B Preferred Stock for services | — | 79 | ||||||
| Changes in operating assets and liabilities: | ||||||||
| Accounts receivable | (2,502 | ) | (923 | ) | ||||
| Network financing receivable | (470 | ) | (230 | ) | ||||
| Inventories | 362 | (524 | ) | |||||
| Prepaid expenses and other assets | 5 | (95 | ) | |||||
| Accounts payable | 972 | 392 | ||||||
| Accrued expenses | (32 | ) | (9 | ) | ||||
| Deferred revenue | 680 | 1,535 | ||||||
| Related party payables | (111 | ) | 9 | |||||
| Net investment in lease | 23 | (399 | ) | |||||
| Lease right-of-use lease liabilities payments | (24 | ) | — | |||||
| Net cash used in operating activities | (1,450 | ) | (1,578 | ) | ||||
| CASH FLOWS FROM FINANCING ACTIVITIES: | ||||||||
| Proceeds from issuance of SAFE liability | 1,000 | — | ||||||
| Proceeds from related party debt | 1,000 | 1,550 | ||||||
| Repayment of related party debt | (342 | ) | (1,044 | ) | ||||
| Proceeds from payment of stock subscription receivable | 30 | — | ||||||
| Proceeds from issuance of Series B stock | — | 1,780 | ||||||
| Net cash provided by financing activities | 1,688 | 2,286 | ||||||
| NET CHANGE IN CASH | 238 | 708 | ||||||
| CASH, beginning of period | 287 | 329 | ||||||
| CASH, end of period | $ | 525 | $ | 1,037 | ||||
| SUPPLEMENTAL DISCLOSURE OF NONCASH INFORMATION: | ||||||||
| Cash payments for interest | $ | 166 | $ | 116 | ||||
| NON-CASH INVESTING AND FINANCING TRANSACTIONS: | ||||||||
| Lease liabilities arising from obtaining right-of-use asset | $ | 25 | $ | — | ||||
| Series B Convertible Preferred Stock Subscription Receivable | $ | — | $ | 598 | ||||
| Repurchase of Series seed stock for issuance of note payable | $ | — | $ | 1,000 | ||||
See accompanying notes to unaudited condensed consolidated financial statements.
| F-33 |
ELAUWIT CONNECTION, INC
Notes to Unaudited Condensed Consolidated Financial Statements
Note 1. Organization and Nature of Operations
The Company
Elauwit Connection, Inc ("Elauwit" or the "Company") is a privately held technology services company that specializes in providing advanced connectivity solutions for buildings by enhancing internet and network infrastructure for property owners and managers. Elauwit provides these solutions by designing and implementing high-speed internet, video, and other technology solutions to ensure seamless connectivity for residents and tenants, with the goal of putting more control in the hands of property owners and allowing them to offer a superior internet experience as a key amenity.
On September 13, 2024 (the “Closing Date”), Elauwit Connection, Inc, a Delaware Corporation, incorporated in December 2019, ("Legacy Elauwit") and DeltaMax, Inc. ("DeltaMax"), a privately-held Delaware corporation, consummated a merger transaction pursuant to which Legacy Elauwit was merged with and into the DeltaMax (the “Merger”), with the DeltaMax being the legal successor or surviving corporation in the Merger (the “Closing”). As part of the Merger DeltaMax changed its name to Elauwit Connection, Inc. On the Closing Date, Legacy Elauwit and DeltaMax consummated the Merger and the transactions contemplated thereby, including the issuance of 2,497,950 Class A shares and 2,502,050 Class B shares of Common Stock (the “Merger Shares”), which included 750,000 Class B shares to DeltaMax, with the remainder to the owners of Legacy Elauwit as a result of a 4.11795 share exchange. Additionally, a previous liability associated with Phantom Stock of $116 thousand was settled and exchanged for 102,948 Class B shares as a result of this transaction. Prior to the merger, DeltaMax was a non-operating shell company.
The Merger was accounted for as a reverse recapitalization of the Company because Legacy Elauwit has been determined to be the accounting acquirer under FASB ASC Topic 805 - Business Combinations. Under this method of accounting, DeltaMax is treated as the “acquired” company for financial reporting purposes. This determination was primarily based on holders of Legacy Elauwit capital stock comprising a relative majority of the voting power of the Company upon consummation of the Merger and will comprise the majority of the governing body of the Company, Legacy Elauwit's senior management comprising the senior management of the Company, and Legacy Elauwit operations comprising the ongoing operations of the Company. Accordingly, for accounting purposes, the financial statements of the Company represent a continuation of the financial statements of Legacy Elauwit, with the exception of legal capital, with the Merger being treated as the equivalent of Legacy Elauwit issuing shares for the net assets of DeltaMax, accompanied by a recapitalization. As such, periods prior have common stock restated at the 4.11795 share exchange ratio of Legacy Elauwit shares for Merger Shares. The net assets of DeltaMax, which included only cash of $250 thousand, were recognized as of the Closing at historical cost, with no goodwill or other intangible assets recorded because the transaction did not constitute the acquisition of a business. Operations prior to the Merger are presented as those of Legacy Elauwit and the accumulated deficit of Legacy Elauwit has been carried forward after Closing. All issued and outstanding securities of DeltaMax upon Closing were treated as issuances of securities of the Company upon the consummation of the Merger.
After the Merger and looking forward, Legacy Elauwit's product lines are the primary focus of the Company's operations. Accordingly, the Company’s current activities primarily relate to Legacy Elauwit’s historical business which comprises the design and implementation of high-speed internet, video, and other technology solutions to ensure seamless connectivity for residents and tenants.
Going Concern
As of June 30, 2025, the Company had cash of approximately $0.5 million. For the six months ended June 30, 2025, the Company used approximately $1.5 million in cash for operating activities. The Company has incurred recurring net losses from operations and negative cash flows from operating activities since inception. As of June 30, 2025, the Company had an accumulated deficit of approximately $10.7 million.
| F-34 |
Management expects operating losses and negative cash flows to continue for the foreseeable future as the Company invests in its commercial capabilities. While the Company's working capital and current debt indicate a substantial doubt regarding the Company’s ability to continue as a going concern, the Company has historically, from time to time, satisfied and may continue to satisfy certain short-term liabilities through the issuance of common and preferred stock, other related party support, and other financing vehicles, thus reducing our cash requirement to meet our operating needs. Management will continue to monitor its operating costs and seek to reduce its current liabilities. Such actions may impair its ability to proceed with certain strategic activities. If expected revenues are not adequate to fund planned expenditures, or if the Company is unsuccessful at raising cash through future capital transactions, including proceeds from our current planned initial public offering ("IPO") transaction, it may be required to reduce its spending rate to align with expected revenue levels and cash reserves, although there can be no guarantee that it will be successful in doing so. Accordingly, the Company may be required to raise additional cash through debt or equity transactions. It may not be able to secure financing in a timely manner or on favorable terms, if at all.
As a result of these factors, management has concluded that there is substantial doubt about the Company’s ability to continue as a going concern for a period of one year after the date the unaudited condensed consolidated financial statements are issued. The Company’s unaudited condensed consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.
Note 2. Summary of Significant Accounting Policies
Principles of Consolidation
The unaudited condensed consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation. All subsidiaries were dormant with no activities and were dissolved during 2024.
Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). Certain footnotes and other financial information normally required by U.S. GAAP have been condensed or omitted in accordance with instructions for interim financial information and Article 8 of Regulation S-X. In the opinion of management, such statements include all adjustments which are considered necessary for a fair presentation of the unaudited condensed consolidated financial statements of the Company as of June 30, 2025. The operating results presented herein are not necessarily an indication of the results that may be expected for the year. The unaudited condensed consolidated financial statements should be read in conjunction with the Company’s audited consolidated financial statements and notes thereto for the years ended December 31, 2024 and 2023, as included within its Registration Statement on Form S-1, as filed confidentially with the Securities and Exchange Commission ("SEC").
Use of Estimates
The preparation of financial statements and related disclosures in conformity with U.S. GAAP requires management to make estimates and judgments that affect the reported amounts of assets and liabilities at the date of the unaudited condensed consolidated financial statements and the reported amounts of revenue and expenses during the reporting period. Significant estimates made by management include assumptions used in estimates of future credit losses under the current expected credit loss impairment model, valuation of Class A and Class B common stock, valuation of Phantom Stock Awards, valuation of SAFE liabilities, revenue recognition, including cost estimates and percentage complete, provisions for income taxes and related valuation allowances and tax uncertainties. On an ongoing basis, management reviews these estimates and assumptions based on currently available information. Actual results could differ from these estimates.
Concentrations of Credit Risk
Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of demand deposits with financial institutions and accounts receivable. The Company maintains cash balances with financial institutions, which at times, are in excess of amounts insured by the Federal Deposit Insurance Corporation. To date, the Company has not experienced any collection loss with these institutions.
| F-35 |
Accounts receivable are subject to the risk that the Company’s customers will not pay the amounts due. The Company has established credit and collection policies to mitigate that risk. As of June 30, 2025, the Company had three customers that accounted for approximately 58% of the Company’s accounts receivable balance. These three customers accounted for approximately 25%, 18% and 15% of the balance each, respectively. As of December 31, 2024, the Company had two customers that accounted for approximately 66% of the Company's accounts receivable balance. These two customers that accounted for approximately 49% and 17% of the Company's accounts receivable balance. During the six months ended June 30, 2025, the Company had two customers that accounted for approximately 48% of the Company's total revenues.These two customers accounted for approximately 34% and 14% of revenues each, respectively. During the six months ended June 30, 2024, the Company had three customers that accounted for approximately 49% of the Company's total revenues. These three customers accounted for approximately 17%, 14% and 18% of revenues each, respectively.
Segment Reporting
The Company determines its reportable segments in accordance with FASB ASC Topic 280, Segment Reporting (“ASC 280”). The Company evaluates a reporting segment by first identifying its operating segments under ASC 280. The Company then evaluates each operating segment to determine if it includes one or more components that constitute a business. If there are components within an operating segment that meet the definition of a business, the Company evaluates those components to determine if they must be aggregated into one or more reportable segments. If applicable, when determining if it is appropriate to aggregate different operating segments, the Company determines if the segments are economically similar and, if so, the operating segments are aggregated.
The Company has one operating segment and one reportable segment. The Company identifies the Chief Operating Decision Maker ("CODM") to be a group consisting of the Chief Executive Officer ("CEO") and the Chief Financial Officer ("CFO"). The CODM reviews financial information on a consolidated basis for purposes of allocating resources and evaluating financial performance. The Company’s principal operations are in the United States. The CODM utilized and regularly reviews consolidated gross profit and loss from operations as measures of segment profit or loss. These measure enable the CEO and CFO to access the overall level of available resources and determine how best to deploy resources.
A reconciliation of total segment revenues to total consolidated revenues and of total segment gross profit and segment operating loss which aggregates to total consolidated loss from operations is as follows (in thousands):
| Six Months Ended June 30, | ||||||||
| 2025 | 2024 | |||||||
| Revenues | $ | 11,691 | $ | 3,298 | ||||
| Less: | ||||||||
| Cost of revenues | 8,707 | 2,628 | ||||||
| Segment gross profit | 2,984 | 670 | ||||||
| Less(1): | ||||||||
| Segment compensation expenses (2) | 1,568 | 872 | ||||||
| Segment travel expenses (3) | 131 | 135 | ||||||
| Other segment expenses (4) | 1,473 | 963 | ||||||
| Segment operating loss | $ | (189 | ) | $ | (1,300 | ) | ||
| (1) | The significant expense categories and amounts align with the segment-level information that is regularly provided to the CODM. |
| (2) | Compensation related expenses primarily include salaries and related payroll tax expenses. |
| (3) | Travel related expenses primarily include travel expenses. |
| (4) | Other segment expenses for each reportable segment includes all other operating expenses such as management fees, professional fees, insurance, rent and other. |
| F-36 |
The measure of segment assets is reported in the accompanying unaudited condensed consolidated balance sheets as “Total assets.”
Cash and Cash Equivalents
The Company considers all short-term, highly liquid investments with original maturities of 90 days or less to be cash equivalents. The Company maintains $259 thousand of deposits in financial institutions in excess of federally insured limits of $250 thousand at June 30, 2025. The Company did not have any cash equivalents at June 30, 2025 or December 31, 2024.
Accounts Receivable, Unbilled Receivables, Network Financing Receivables and Allowance for Credit Losses
Trade accounts receivable are recorded at invoiced amounts, net of allowance for expected credit losses, if applicable, and are unsecured and do not bear interest. In addition, unbilled and network financing receivables are derived from the allocation of contract consideration for services, such as network design and installation, recognized over time, which payment of such consideration received over the contract term, generally between one and several years. Unbilled and network financing receivables are presented net of allowances for credit losses. Unbilled receivables are generally billed within a few months subsequent to the balance sheet date. Network financing receivables are billed monthly in accordance with contract terms, generally over a period of five to seven years, concurrent with internet network services.
Under the current expected credit losses ("CECL") impairment model, the Company develops and documents its allowance for credit losses on trade accounts receivable, unbilled receivables, and network financing receivables based on historical losses. The determination of portfolio segments is based primarily on the qualitative consideration of the credit risks driven by the customer type and macroeconomic factors, if any are deemed to drive credit loss. The Company also considers reasonable and supportable current information in determining its estimated loss rates, such as external forecasts, macroeconomic trends or other factors including customers’ credit risk and historical loss experience. At June 30, 2025 and December 31, 2024, no macroeconomic factors were noted that would impact the Company’s expected credit losses.
The adequacy of the allowance is evaluated on a regular basis. Account balances are written off after all means of collection are exhausted and the balance is deemed uncollectible. Subsequent recoveries are credited to the allowance. Changes in the allowance are recorded as adjustments to provision for credit losses in the period incurred. At June 30, 2025 and December 31, 2024, the Company recorded no allowance for expected credit losses.
Inventories
The Company's inventory is stated at the lower of cost or net realizable value, using specific identification method. The Company's inventory consists completely of items procured but not yet assigned or shipped to a specific job site and finished goods inventory. Indirect costs relating to long-term contracts, which include expenses such as general and administrative, are charged to expense as incurred. The Company had no material write-offs of inventory during the six months ended June 30, 2025 and 2024 and has not recorded an inventory reserve at June 30, 2025 or December 31, 2024.
Deferred Financing Costs
The Company allocates offering costs to the different components of the capital raise on a pro rata basis. Any offering costs allocated to common stock are charged directly to additional paid-in capital.
The Company complies with the requirements of FASB ASC Topic 340, Other Assets and Deferred Costs (“ASC 340”) and SAB 5A - Expenses of Offering. Offering costs, which consist mainly of legal, accounting and consulting fees directly attributable to the issuance of an equity contract to be classified in equity are recorded as a reduction in equity. At June 30, 2025 and December 31, 2024, there were no material deferred financing costs.
| F-37 |
Distinguishing Liabilities from Equity
The Company relies on the guidance provided by FASB ASC Topic 480, Distinguishing Liabilities from Equity ("ASC 480"), to classify certain redeemable and/or convertible instruments. The Company first determines whether a financial instrument should be classified as a liability. The Company will determine the liability classification if the financial instrument is mandatorily redeemable, or if the financial instrument, other than outstanding shares, embodies a conditional obligation that the Company must or may settle by issuing a variable number of its equity shares.
Once the Company determines that a financial instrument should not be classified as a liability, the Company determines whether the financial instrument should be presented between the liability section and the equity section of the unaudited condensed consolidated balance sheet. The Company will determine temporary equity classification if the redemption of the financial instrument is outside the control of the Company (i.e. at the option of the holder). Otherwise, the Company accounts for the financial instrument as permanent equity.
Revenue Recognition
Overview
The Company generates revenue from the following sources: (1) network design and installation and 2) internet network services.
In accordance with FASB ASC 606 “Revenue Recognition” ("ASC 606"), the Company recognizes revenue from contracts with customers using a five-step model, which is described below:
| · | identify the customer contract; |
| · | identify performance obligations that are distinct; |
| · | determine the transaction price; |
| · | allocate the transaction price to the distinct performance obligations; and |
| · | recognize revenue as the performance obligations are satisfied. |
Identify the customer contract
A customer contract is generally identified when there is approval and commitment from both the Company and its customer, the rights have been identified, payment terms are identified, the contract has commercial substance and collectability is probable. Specifically, the Company obtains written/electronic signatures on contracts with customers.
Identify performance obligations that are distinct
A performance obligation is a promise by the Company to provide a distinct good or service or a series of distinct goods or services. A good or service that is promised to a customer is distinct if the customer can benefit from the good or service either on its own or together with other resources that are readily available to the customer, and a company’s promise to transfer the good or service to the customer is separately identifiable from other promises in the contract. The Company's network design and installation revenue stream requires significant services to integrate complex activities and equipment into a single deliverable, and is therefore generally accounted for as one distinct performance obligation. The Company's internet network services revenue stream is composed of two distinct and separately identifiable performance obligations: (1) wired/wireless internet services and (2) hardware and internet services maintenance. The hardware and internet services maintenance performance obligation is a stand-ready obligation.
Determine the transaction price
The transaction price is the amount of consideration to which the Company expects to be entitled in exchange for transferring goods or services to a customer. The transaction price for the network design and installation is fixed based on the amount stated in the contract. For contracts in which the Company finances the construction of the network, any interest collected by the Company is excluded from the transaction price. The transaction price for the bulk internet services is determined by the monthly per unit price times the number of units stated in the contract.
| F-38 |
The Company evaluates its contracts with customers for the presence of significant financing components. If a significant financing component is identified in a contract and provides a financing benefit to the customer, the transaction price for the contract is adjusted to account for the financing portion of the arrangement, which is recognized as interest income over the financing term using the effective interest method. In determining the appropriate interest rates for significant financing components, the Company evaluates the credit profile of the customer and prevailing market interest rates and selects an interest rate in which it believes would be charged to the customer in a separate financing arrangement over a similar financing term.
Allocate the transaction price to distinct performance obligations
When allocating the contract’s transaction price, the Company considers each distinct performance obligation. As the contracts contain multiple performance obligations, and the Company does not have stand alone observable prices, the Company notes the contract’s transaction price of each performance obligation based on the standalone selling price, which is determined using an expected cost plus a margin approach.
Recognize revenue as the performance obligations are satisfied
Revenue related to network design and installation revenue stream is recognized over time as the Company’s performance creates or enhances an asset that the customer controls as the asset is created or enhanced date. The best measure of progress towards completion for this performance obligation is costs incurred to date, as the Company has reliable information about the costs it expects to incur in total and the costs actually incurred and because it best depicts the transfer of control to the customer which occurs as we incur costs on our contracts. For over time contracts using a cost-to-cost measure of progress, we have an estimate at completion ("EAC") process in which management reviews the progress and execution of our performance obligations. This EAC process requires management judgment relative to assessing risks, estimating contract revenue and costs, and making assumptions for schedule and technical issues. Accordingly, the Company will use an input method of costs incurred to date relative to the estimated total costs to satisfy the performance obligation to record revenue.
Revenue related to wired/wireless internet services is recognized over time as the customer simultaneously receives and consumes the benefits provided by the Company’s performance as the Company performs. The best measure of progress towards completion for this performance obligation is the passage of time as the Company’s efforts are used evenly throughout the performance of the wired and wireless internet services performance obligation. Accordingly, the Company will use an input method of time (in days) elapsed to record revenue as the performance obligation is satisfied evenly over time as the same internet services are provided daily. Revenue will be recorded ratably over the contract term.
Revenue related to hardware and internet services maintenance is recognized over time as the customer simultaneously receives and consumes the benefits provided by the Company’s performance as the Company performs. This performance obligation is a stand-ready obligation in which the Company expects the customer to receive and consume the benefits of the hardware and internet services maintenance throughout the contract period. Accordingly, the Company will use an input method of time (in days) elapsed to record revenue. Management notes that as this is a stand-ready obligation, the performance obligation is satisfied evenly over a period of time, and revenue will be recorded ratably over the contract term.
Costs to obtain contracts
The Company incurs incremental costs to obtain contracts with their customers for certain contracts, specifically sales commissions. These costs are initially capitalized and amortized over the contract term. As of June 30, 2025 and December 31, 2024, the Company had approximately $169 thousand and $148 thousand, respectively, of costs to obtain contracts capitalized which are presented within 'Prepaid expenses and other current assets.
| F-39 |
Significant Judgments
The Company enters into contracts that may include various combinations of equipment, services and network installation. Contracts with customers often include promises to transfer multiple products and services to a customer. Determining whether products and services are considered distinct performance obligations that should be accounted for separately versus together may require significant judgment. Once the Company determines the performance obligations, it determines the transaction price, which includes estimating the amount of variable consideration to be included in the transaction price, if any. The Company then allocates the transaction price to each performance obligation in the contract based on the stand alone selling price. The corresponding revenue is recognized as the related performance obligations are satisfied. As it relates to Network design and installation revenue, each reporting period, the Company estimates the amount of costs incurred to date as a percentage of total estimated costs to determine the amount of revenue to recognize.
Deferred Revenue and Unbilled Receivables
The timing of revenue recognition, billings and collections results in receivables, unbilled receivables and contract liabilities on our unaudited condensed consolidated balance sheets. Under typical payment terms for our contracts accounted for over time, amounts are billed as work progresses in accordance with agreed-upon contractual terms. For certain contracts, billings occur subsequent to revenue recognition, resulting in unbilled receivables. Under ASC 606, unbilled receivables constitute contract assets. For certain contracts, payment terms typically require advanced payments and deposits. Under ASC 606, payments received from customers in excess of revenue recognized to-date results in a contract liability.
Shipping and Handling Costs
Shipping and handling costs charged to customers are included in revenue, while all other shipping and handling costs are included in cost of revenues in the accompanying unaudited condensed consolidated statements of operations. Shipping and handling costs were not material during the six months ended June 30, 2025 and 2024.
Advertising and Marketing
Advertising costs are expensed as incurred and included in sales and marketing expense. Advertising costs were $64 thousand and $28 thousand during the six months ended June 30, 2025 and 2024, respectively.
Leases
Operating lease assets are included within lease right-of-use assets, net and operating lease liabilities are included in operating lease liabilities, current and operating lease liabilities, net of current on the unaudited condensed consolidated balance sheets as of June 30, 2025 and December 31, 2024. The Company has elected not to present short-term leases as these leases have a lease term of 12 months or less at lease inception and do not contain purchase options or renewal terms that the Company is reasonably certain to exercise. Lease payments for short-term leases are recognized on a straight-line basis over the term of the lease. All other lease right-of-use assets and operating lease liabilities are recognized based on the present value of lease payments over the lease term at commencement date. Because the Company’s lease does not provide an implicit rate of return, the Company used an incremental borrowing rate based on the information available at adoption date in determining the present value of lease payments.
The Company assesses whether an arrangement is a lease or contains a lease at inception. For arrangements considered leases or that contain a lease that is accounted for separately, the Company determines the classification and initial measurement of the lease right-of-use assets and operating lease liabilities at the lease commencement date, which is the date that the underlying asset becomes available for use. The Company has elected to account for non-lease components associated with its leases and lease components as a single lease component.
The Company recognizes a lease right-of-use asset, which represents the Company’s right to use the underlying asset for the lease term, and a operating lease liability, which represents the present value of the Company’s obligation to make payments arising over the lease term. The operating lease liability is based on the present value of its unpaid minimum lease payments over the lease term, discounted using the interest rate implicit in the lease or, if that rate cannot be readily determined, the incremental borrowing rate which is the rate the Company pays to borrow on a collateralized basis.
| F-40 |
If a lease is modified, the modified contract is evaluated to determine whether it is or contains a lease. If a lease continues to exist, the lease modification is determined to be a separate contract when the modification grants the lessee an additional right-of-use that is not included in the original lease and the lease payments increase commensurate with the standalone price for the additional right-of-use. A lease modification that results in a separate contract will be accounted for in the same manner as a new lease. For a modification that is not a separate contract, the Company reassess the lease classification using the modified terms and conditions and the facts and circumstances as of the effective date of the modification and recognize the amount of the remeasurement of the operating lease liability for the modified lease as an adjustment to the corresponding lease right-of-use asset.
Share-Based Compensation
The Company has a share-based compensation plans for employees. The share-based compensation includes awards of phantom stock which are accounted for under FASB ASC Topic 718, Compensation - Stock Compensation ("ASC 718"). The Company recognizes compensation cost, net of estimated forfeitures, for phantom stock awards on a straight-line basis over the requisite service period of each award. Awards that are liability classified are remeasured at each reporting period.
Income Taxes
The Company utilizes an asset and liability approach for financial accounting and reporting for income taxes. The provision for income taxes is based upon income or loss after adjustment for those permanent items that are not considered in the determination of taxable income. Deferred income taxes represent the tax effects of differences between the financial reporting and tax basis of the Company’s assets and liabilities at the enacted tax rates in effect for the years in which the differences are expected to reverse.
The Company evaluates the recoverability of deferred tax assets and establishes a valuation allowance when it is more likely than not that some portion or all the deferred tax assets will not be realized. Management makes judgments as to the interpretation of the tax laws that might be challenged upon an audit and cause changes to previous estimates of tax liabilities. In management’s opinion, adequate provisions for income taxes have been made. If actual taxable income by tax jurisdiction varies from estimates, additional allowances or reversals of reserves may be necessary.
Tax benefits are recognized only for tax positions that are more likely than not to be sustained upon examination by tax authorities. The amount recognized is measured as the largest amount of benefit that is greater than 50 percent likely to be realized upon settlement. A liability for “unrecognized tax benefits” is recorded for any tax benefits claimed in the Company’s tax returns that do not meet these recognition and measurement standards. As of June 30, 2025 and December 31, 2024, no liability for unrecognized tax benefits was required to be recorded.
The Company’s policy for recording interest and penalties associated with tax audits is to record such items as a component of operating expenses. There were no amounts accrued for penalties and interest as of June 30, 2025 and December 31, 2024. The Company does not expect its uncertain tax positions to change during the next twelve months. Management is currently unaware of any issues under review that could result in significant payments, accruals or material deviations from its position.
The Company has identified its United States federal tax returns, and its state and provincial tax returns in North Carolina, Georgia and Michigan as its “major” tax jurisdictions. The Company is in the process of filing its United States federal and state corporate tax returns for the year ended December 31, 2024. Net operating losses for these periods will not be available to reduce future taxable income until the returns are filed.
On July 4, 2025, the One Big Beautiful Bill (the "OBBB") Act, which includes a broad range of tax reform provisions, was signed into law in the United States and we continue to assess its impact. We currently do not expect the OBBB Act to have a material impact on our estimated annual effective tax rate in 2025.
Basic and Diluted Net Loss per Share of Common Stock
The Company calculates basic net loss per share by dividing net loss by the weighted average number of common shares outstanding during the reporting period. A net loss cannot be diluted so when the Company is in a net loss position, basic and diluted loss per common share are the same. If in the future the Company achieves profitability, the denominator of a diluted earnings per common share calculation will include both the weighted average number of shares outstanding and the number of common stock equivalents, if the inclusion of such common stock equivalents would be dilutive.
| F-41 |
Fair Value of Financial Instruments
The Company measures the fair value of financial assets and liabilities based on the guidance of FASB Topic 820, Fair Value Measurements and Disclosures (“ASC 820”), which defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements.
Fair Value Measurements
ASC 820 defines fair value as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an ordinary transaction between market participants on the measurement date. ASC 820 also establishes a fair value hierarchy, which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. ASC 820 describes three levels of inputs that may be used to measure fair value:
Level 1 — quoted prices in active markets for identical assets or liabilities;
Level 2 — quoted prices for similar assets and liabilities in active markets or inputs that are observable; and
Level 3 — inputs that are unobservable.
The fair value of the Company’s assets and liabilities, which qualify as financial instruments under ASC 820, approximates the carrying amounts in the balance sheets, primarily due to their short-term nature. Based upon current borrowing rates with similar maturities the carrying value of long-term debt, and related party loans payable approximates fair value. The estimated fair value of the Company’s SAFE liabilities as of June 30, 2025 and December 31, 2024 was $1.0 million and $0, respectively, based on Level 3 inputs. Refer to Note 9.
Recently Issued Accounting Pronouncements Not Yet Adopted
In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures ("ASU 2023-09"), which requires public entities to disclose consistent categories and greater disaggregation of information in the rate reconciliation and for income taxes paid. It also includes certain other amendments to improve the effectiveness of income tax disclosures. The guidance is effective for financial statements issued for annual periods beginning after December 15, 2024, with early adoption permitted. The Company is required to adopt this standard prospectively in fiscal year 2025 for the annual reporting period ending December 31, 2025 and is currently evaluating the impact on the Company's related disclosures.
In November 2024, the FASB issued ASU 2024-03, Income Statement (Topic 220): Reporting Comprehensive Income - Expense Disaggregation Disclosures, Disaggregation of Income Statement Expenses ("ASU 2024-03"), that requires public companies to disclose, in interim and reporting periods, additional information about certain expenses in the financial statements. Further clarified by ASU 2025-01, Income Statement (Topic 220): Reporting Comprehensive Income - Expense Disaggregation Disclosures, Disaggregation of Income Statement Expenses, issued in December 2025. The ASU is effective for annual periods beginning after December 15, 2026, and interim reporting periods beginning after December 15, 2027. Early adoption is permitted and is effective on either a prospective basis or retrospective basis. The Company is currently assessing the potential impacts of ASU 2024-03.
In November 2024, the FASB issued ASU 2024-04, Debt with Conversion and Other Options (Subtopic 470-20) ("ASU 2024-04"), which clarifies the requirements for determining whether certain settlements of convertible debt instruments should be accounted for as an induced conversion. ASU 2024-04 is effective for annual periods beginning after December 15, 2025, and interim reporting periods within those annual reporting periods. Early adoption is permitted for all entities that have adopted the amendments in Update 2020-06. Adoption can be on a prospective or retrospective basis. The Company is currently evaluating the disclosure impact that ASU 2024-04 may have on its financial statement presentation and disclosures.
| F-42 |
In May 2025, the FASB issued ASU 2025-03, Business Combinations (Topic 805) and Consolidation (Topic 810) ("ASU 2025-03"), which clarifies the requirements for determining the accounting acquirer in the acquisition of a variable interest entity. ASU 2025-03 beginning after December 15, 2026, and interim reporting periods within those annual reporting periods. The amendments in this update require that an entity apply the new guidance prospectively to any acquisition transaction that occurs after the initial application date. Early adoption is permitted as of the beginning of an interim or annual reporting period. The Company is currently evaluating the disclosure impact that ASU 2025-03 may have on its financial statement presentation and disclosures.
In May 2025, the FASB issued ASU 2025-04, Compensation - Stock Compensation (Topic 718) and Revenue from Contracts with Customers (Topic 606) ("ASU 2025-04"), which clarifies the requirements for share-based consideration payable to a customer. The amendments in this update are effective for all entities for annual reporting periods (including interim reporting periods within annual reporting periods) beginning after December 15, 2026. Early adoption is permitted for all entities. The Company is currently evaluating the disclosure impact that ASU 2025-04 may have on its financial statement presentation and disclosures.
In July 2025, the FASB issued ASU 2025-05, Measurement of Credit Losses for Accounts Receivable and Contract Assets ("ASU 2025-05"). This standard introduces a practical expedient that companies can choose to apply when determining allowances for credit losses. Specifically, it permits companies to assume that the current conditions as of the balance sheet date remain unchanged throughout the remaining life of the assets. This standard is effective for the Company for annual reporting periods beginning after December 15, 2025, and requires prospective application. The Company is currently evaluating the impact of ASU 2025-05, however, does not expect it to have a material impact on its financial statements.
Management does not believe that any other recently issued, but not yet effective, authoritative guidance, if currently adopted, would have a material impact on the Company’s unaudited condensed consolidated financial statement presentation or disclosures.
Note 3. Revenue and Deferred Revenue
The following table provides the Company’s revenue disaggregated by revenue stream (in thousands):
| For the Six Months Ended June 30, | ||||||||
| Revenue: | 2025 | 2024 | ||||||
| Network design and installation | $ | 10,536 | $ | 2,911 | ||||
| Internet network services and hardware and internet service | 1,155 | 387 | ||||||
| Total | $ | 11,691 | $ | 3,298 | ||||
Remaining performance obligations represent the transaction price of Company orders for which work has not been performed as of the end of a fiscal period and for contracts with substantive termination penalties. As of June 30, 2025, the aggregate amount of the transaction price allocated to remaining performance obligations was $35.9 million (which represents the amount of the Company's backlog). $7.6 million of the backlog relates to the network design and installation performance obligations and $28.3 million relates to internet network services and hardware and internet services performance obligations. Additionally, $11.1 million of the $35.9 million relates to jobs that are contracted but not yet started as of June 30, 2025. The Company estimates that approximately $9.2 million of the remaining performance obligations at June 30, 2025 will be completed and recognized as revenue during 2025, with the remainder recognized between 2026 and 2032.
| F-43 |
Changes in the Company’s current deferred revenue balance for six months ended June 30, 2025 and 2024, respectively, were as follows (in thousands):
| Balance as of January 1, 2024 | $ | 1,880 | ||
| Additions included in deferred revenue as of end of period | 2,395 | |||
| Revenue recognized from opening balance | (860 | ) | ||
| Balance as of June 30, 2024 | $ | 3,415 | ||
| Balance as of January 1, 2025 | $ | 6,215 | ||
| Additions included in deferred revenue as of end of period | 4,891 | |||
| Revenue recognized from opening balance | (4,211 | ) | ||
| Balance as of June 30, 2025 | $ | 6,895 |
Deferred revenue balances primarily consist of customer deposits and billings in excess of revenue related to the Company's network design and installation performance obligations. As of June 30, 2025 and December 31, 2024, all of the Company’s deferred revenue balances were reported as current liabilities in the accompanying unaudited condensed consolidated balance sheets.
Changes in the Company's network financing receivable balance for the six months ended June 30, 2025 and 2024, respectively, were as follows (in thousands):
| Balance as of January 1, 2024 | $ | — | ||
| Additional unbilled revenue recognized | 234 | |||
| Amounts billed during the period | (4 | ) | ||
| Balance as of June 30, 2024 | $ | 230 | ||
| Balance as of January 1, 2025 | $ | 513 | ||
| Additional unbilled revenue recognized | 506 | |||
| Amounts billed during the period | (36 | ) | ||
| Balance as of June 30, 2025 | $ | 983 |
Note 4. Accounts Receivable
Receivables are recorded and carried at the original invoiced amount less an allowance for credit losses (in thousands).
| June 30, | December 31, | |||||||
| 2025 | 2024 | |||||||
| Trade accounts receivable | $ | 5,187 | $ | 3,663 | ||||
| Unbilled receivables | 1,766 | 788 | ||||||
| Allowance for credit losses | — | — | ||||||
| Accounts receivable | $ | 6,953 | $ | 4,451 | ||||
Note 5. Leases
Lessee
For the six months ended June 30, 2025, operating lease expense was $28 thousand. The Company did not have any operating lease expense for the six months ended June 30, 2024. For the six months ended June 30, 2025 and 2024 the Company had a short-term lease expense of $23 thousand and $7 thousand, respectively. For the six months ended June 30, 2025 and 2024 the company had variable lease expense of $10 thousand and $0, respectively.
| F-44 |
The lease liability is based on the present value of its unpaid minimum lease payments over the lease term, discounted using the interest rate implicit in the lease or, if that rate cannot be readily determined, the incremental borrowing rate which is the rate the Company pays to borrow on a collateralized basis.
The table below presents certain information related to the weighted average remaining lease term and the weighted average discount rate for the Company’s operating leases, as of June 30, 2025:
| Weighted average remaining lease term (in years) - operating leases | 1.00 | |||
| Weighted average discount rate - operating leases | 6.46 | % |
South Carolina Office Lease Agreement
On January 1, 2023, the Company initially entered into a lease for Suite 130 and 1700 Alta Vista Drive in Columbia, SC in which the initial term was January 1, 2023 through December 31, 2023. At the end of the initial lease term (December 31, 2023), the lease became a month to month lease in which either party (the Company or the lessor) could terminate the lease at any time with 30 days notice. The Company leased this space on a month to month basis for six months until June 30, 2024. On May 31, 2024, the Company entered into a new lease with the same lessor for the original Suite 130 and an additional space, Suite 140. The term of the new lease is from July 1, 2024 to June 30, 2026. Total rent is $3,150 per month from July 1, 2024 to June 30, 2025 and $3,276 per month from July 1, 2025 to June 30, 2026.
Lease Modification
On January 2, 2025, the Company entered into its first amendment to the South Carolina Office Lease ("Amended SC Lease") to expand into an additional suite with approximately 1,950 additional square feet for a total of approximately 5,950 square feet of office space. The Amended SC Lease commencement date is January 2, 2025 and runs concurrently with the existing terms and conditions of the lease, through June 30, 2026. The Company determined that the lease payments increased commensurate with the standalone price for the additional right of use and as such, the it is accounted for as a new lease, commencing on January 2, 2025. As such, the Company recorded an additional right-of-use asset and lease liability upon lease commencement of the new lease. Total rent is $1,536 per month from February 1, 2025 to June 30, 2025 and $1,598 per month from July 1, 2025 to June 30, 2026.
Future lease payments for all lease obligations for the following five fiscal years and thereafter are as follows (in thousands):
| Years ending December 31: | Operating Lease | |||
| 2025 (remainder) | $ | 29 | ||
| 2026 | 29 | |||
| Total minimum lease payments | $ | 58 | ||
| Less effects of discounting | (2 | ) | ||
| Present value of future minimum lease payments | $ | 56 | ||
Lessor
The Company owns certain networks and places them at customer sites under sales-type lease arrangements. The Company evaluates new leases pursuant to FASB ASC 842: Leases to determine lease classification. A lease is classified by a lessor as a sales-type lease if the significant risks and rewards of ownership reside with the customer. This situation is met if, among other things, there is an automatic transfer of title during the lease, a reasonably certain option to be exercised, the non-cancelable lease term is for more than a major part of the remaining economic useful life of the asset, the present value of the minimum lease payments represents substantially all of the leased asset’s fair value at lease inception, or the asset is so specialized in nature that it provides no alternative use to the lessor (and therefore would not provide any future value to the lessor) after the lease term.
The Company had no net investment in sales-type lease transactions for the six months ended June 30, 2025 and 2024.
| F-45 |
The table below reconciles the undiscounted cash flows to be received to the net investment in sales-type leases recorded in the unaudited condensed consolidated balance sheets (in thousands):
| Years ending December 31: | ||||
| 2025 (remainder) | $ | 51 | ||
| 2026 | 102 | |||
| 2027 | 102 | |||
| 2028 | 102 | |||
| 2029 | 102 | |||
| 2030 and thereafter | 265 | |||
| Total minimum lease payments | $ | 724 | ||
| Less: unearned interest | (216 | ) | ||
| Net investment in sales-type leases | $ | 508 | ||
Interest income recognized on lease arrangements for the six months ended June 30, 2025 and 2024 is included in interest expense, net, on the unaudited condensed consolidated statements of operations, and is presented below (in thousands):
| For the Six Months Ended June 30, | ||||||||
| 2025 | 2024 | |||||||
| Lease income - sales-type leases | $ | 28 | $ | — | ||||
| Total lease income | $ | 28 | $ | — | ||||
Note 6. Related Party Debt
The Company's related party debt consisted of (in thousands):
| June 30, | December 31, | |||||||
| 2025 | 2024 | |||||||
| Related Party Debt, current: | ||||||||
| Endurance Loan | $ | 222 | $ | 222 | ||||
| Motherlode Promissory Note | 191 | 185 | ||||||
| Network Service Agreements | 288 | 288 | ||||||
| Endurance Business Loan | 250 | — | ||||||
| Second Endurance Promissory Note | 500 | — | ||||||
| Related Party Debt, current | $ | 1,451 | $ | 695 | ||||
| Related Party Debt, net of current | ||||||||
| Endurance Loan | $ | 630 | $ | 741 | ||||
| Motherlode Promissory Note | 587 | 683 | ||||||
| Network Service Agreements | 910 | 1,051 | ||||||
| Endurance Business Loan | — | 250 | ||||||
| Endurance Promissory Note | 500 | — | ||||||
| Related Party Debt, net of current | $ | 2,627 | $ | 2,725 | ||||
| F-46 |
Apogee Telecom Promissory Note (December 6, 2019)
On December 6, 2019 the Company entered into a promissory note (the “Apogee Promissory Note") with Apogee Telecom, Inc., a Texas Corporation ("Apogee"), a related company connected from a board member and shareholder of the Company, where Apogee loaned $800 thousand, to the Company in exchange for the Apogee Promissory Note. The Apogee Promissory Note had a maturity date of November 30, 2026 and bears interest at 10.0%, compounded annually. No principal or interest payments were due until December 31, 2021, at which point principal and interest were paid in equal monthly installments of $19 thousand. As part of the Series Seed Repurchase Agreement this was paid off in its entirety on April 12, 2024 (see Note 8). As of June 30, 2025 and December 31, 2024, the Apogee Promissory Note had no remaining balance. During the six months ended June 30, 2025 and 2024, the Company incurred $0 and $18 thousand of interest expense, which is recognized in interest expense in the unaudited condensed consolidated statements of operations. Subsequent to April 12, 2024, Apogee is no longer a related party of the Company.
Apogee Telecom Installment Payment Agreement (February 28, 2023)
On February 28, 2023, the Company entered into an installment payment agreement (the “Apogee Installment Payment Agreement") with Apogee, whereas Apogee provided hardware and peripheral equipment related to the Company's primary services. Per the Apogee Installment Payment Agreement the Company owed a principal balance of $0.4 million, which is to be paid in installments over a term of twenty three months. The Apogee Installment Payment Agreement had a maturity date of December 31, 2024, and bore interest at 12.0%, compounded annually. As of June 30, 2025 and December 31, 2024, the Apogee Promissory Note had no remaining balance. As part of the Series Seed Repurchase Agreement this was paid off in its entirety on April 12, 2024 (see Note 8). During the six months ended June 30, 2025 and 2024, the Company incurred $0 and $15 thousand of interest expense, which is recognized in interest expense in the unaudited condensed consolidated statements of operations. As noted above, subsequent to April 12, 2024, Apogee is no longer a related party of the Company.
Endurance Loan (April 1, 2024)
On April 1, 2024 the Company entered into a fixed rate loan agreement (the “Endurance Loan") with Endurance Opportunities I, LLC ("Endurance"), a related party owned by a member of management and certain shareholders, where Endurance loaned $1.0 million, to the Company in exchange for the Endurance Loan. The Endurance Loan has a maturity date of May 1, 2029 and bears interest at 18.0%, compounded annually. Monthly payments are required under the Endurance Loan of $15 thousand through October 2024 and $19 thousand, thereafter through maturity. During the six months ended June 30, 2025 and the six months ended June 30, 2024 the Company incurred $52 thousand and $30 thousand of interest expense, respectively, which is recognized in interest expense in the unaudited condensed consolidated statements of operations. As of June 30, 2025 and December 31, 2024, the Endurance Loan had a balance of approximately $0.9 million and $1.0 million, respectively.
Motherlode Promissory Note (April 12, 2024)
On April 12, 2024 the Company entered into a promissory note (the “Motherlode Promissory Note") with Motherlode LLC.("Motherlode"), a related party shareholder, where Motherlode loaned $1.0 million, to the Company in exchange for the Motherlode Promissory Note. The Motherlode Promissory Note has a maturity date of April 30, 2029 and bears interest at 6.0%, compounded annually. During the term of the Motherlode Promissory Note, the Company is to pay monthly installments of $19 thousand. During the six months ended June 30, 2025 and the six months ended June 30, 2024 the Company incurred $25 thousand and $15 thousand of interest expense, respectively, which is recognized in interest expense in the unaudited condensed consolidated statements of operations. As of June 30, 2025 and December 31, 2024, the Motherlode Promissory Note had a balance of $0.8 million and $0.9 million, respectively.
Network Service Agreements (Various dates in 2024)
The Company has entered into a certain network service agreement (the “Network Service Agreements" or the “NSAs”) with various customers, pursuant to which the Company will perform or has performed the design, installation, and management of a telecommunications network for the customer in financed project amounts ranging from $50 thousand to $550 thousand (the "Project Financing"). Through December 31, 2024, Endurance financed $1.4 million. The Company notes $0.5 million of the amount financed during the year ended December 31, 2024, relates to the sales-type lease (see Note 5). During the six months ended June 30, 2025 and 2024, Endurance financed $0 and $0.8 million, respectively. As of June 30, 2025 and December 31, 2024, the NSAs had a balance of $1.2 million and $1.3 million, respectively. As of June 30, 2025, repayments on these agreements are made monthly and range from $1 thousand to $9 thousand.
| F-47 |
As part of each Project Financing, the Company sold an undivided interest in the NSA, to Endurance, and interest shall accrue at a rate of 16.5% per annum, with respect to any payments owed to Endurance by the Company, or advances owed to Endurance by the Company, not made when due. In exchange, for the financing, the Company and Endurance have entered into various participation and agency agreements (the "Participation and Agency Agreements), whereby Endurance is granted an undivided participation interest entitling Endurance to receive payments in relation to each respective NSA. At any time the Participation and Agency Agreement is outstanding, the Company shall have the right to repurchase Endurance' interest at par value, with par meaning all outstanding principal, unpaid interest, and fees. If Endurance' interest under these Participation and Agency Agreements remains outstanding twenty four (24) months after the service activation date under each respective NSA, Endurance shall have the option to require repurchase by the Company of Endurance' interest, at par value. Interest expense related to these network service agreements are presented net of interest income received from network financing receivables, which accrues interest income at the same rate as the NSAs.
Endurance Business Loan (November 12, 2024)
On November 12, 2024 the Company entered into a fixed rate loan agreement (the “Endurance Business Loan") with Endurance, a related party, where Endurance loaned $0.3 million to the Company. The Endurance Business Loan has a maturity date of May 2026 and bears interest at 16.5% per year. During the six months ended June 30, 2025, the Company incurred $21 thousand of interest expense, which is recognized in interest expense in the unaudited condensed consolidated statements of operations. As of June 30, 2025 and December 31, 2024, the Endurance Business Loan had a balance of $0.3 million and $0.3 million, respectively.
Endurance Promissory Note (March 1, 2025)
On March 1, 2025, the Company entered into a fixed rate loan agreement (the "Endurance Promissory Note") with Endurance, where Endurance loaned $0.5 million to the Company. The Endurance Loan has a maturity date of eighteen months and bears interest at 16.5%. Quarterly payments of interest are required with outstanding principal amount of the loan due on the maturity date. During the six months ended June 30, 2025, the Company incurred $28 thousand of interest expense, which is recognized in interest expense in the unaudited condensed consolidated statements of operations. As of June 30, 2025, the Endurance Promissory Note had a balance of $0.5 million.
Second Endurance Promissory Note (March 25, 2025)
On March 25, 2025, the Company entered into a fixed rate loan agreement (the “Second Endurance Promissory Note") with Endurance, where Endurance loaned $0.5 million to the Company. The Second Endurance Promissory Note has a maturity date of ninety days and bears interest at 16.5%. Monthly payments of interest are required with outstanding principal amount of the loan due on the maturity date. During the six months ended June 30, 2025, the Company incurred $22 thousand of interest expense, which is recognized in interest expense in the unaudited condensed consolidated statements of operations. As of June 30, 2025, the Second Endurance Promissory Note had a balance of $0.5 million. On July 7, 2025, the Second Endurance Promissory Note was modified to extend the term of the note an additional 90 days, to September 30, 2025. Refer to Note 13.
| F-48 |
As of June 30, 2025, future minimum principal payments on all related party debt, excluding accrued interest amounts, were as follows (in thousands):
| Years ending December 31: | ||||
| 2025 (remainder of year) | $ | 851 | ||
| 2026 | 1,456 | |||
| 2027 | 718 | |||
| 2028 | 731 | |||
| 2029 | 310 | |||
| Thereafter | 12 | |||
| Total future payments | $ | 4,078 | ||
Note 7. Related Party Payables
Management Agreement (December 6, 2019, was not renewed post 2022)
On December 6, 2019 the Company entered into a management agreement (the “Management Agreement") with Elauwit Connection, LLC, a Wyoming limited liability company ("Elauwit LLC"), a related party, that was dissolved in October 2024, whereby certain key persons of Elauwit LLC, shall provide management services to manage all aspects of the Company, subject to supervision and oversight by the Company's board of directors (the "Board"). The key persons ("Key Persons") who will supervise all services include the Executive Chairman and the Chief Executive Officer of the Company. In consideration of the services provided by the Key Persons, the Company paid Elauwit LLC a sum of $45 thousand per month during the initial year of the Management Agreement, subject to potential annual increases and other compensation, as determined by the Board. The term of the agreement was three (3) years commencing on December 1, 2019 and terminated on November 30, 2022. Beginning in December 2020, the Key Persons elected to defer portions of their consideration. On August 20, 2024, as part of the Deferred Compensation Agreement, defined below, the Company is to pay the Key Persons $0.5 million, at an interest rate of 3.25%, on cumulative balances owed. During the six months ended June 30, 2025 and 2024, the Company incurred $7 thousand and $9 thousand of interest expense, respectively, which is recognized in interest expense in the unaudited condensed consolidated statements of operations. As of June 30, 2025 and December 31, 2024, the Deferred Compensation Agreement had a balance of $0.4 million and $0.5 million, respectively.
Post November 30, 2022, the Company continued making payments under an informal agreement to same Key Persons. During the six months ended June 30, 2025 and 2024, the Company incurred expenses of $180 thousand and $0, respectively, included in general and administrative expenses on the unaudited condensed consolidated statements of operations.
Deferred Compensation Agreement (August 20, 2024)
On August 20, 2024 the Company entered into a deferred compensation agreement (the “Deferred Compensation Agreement") with certain executives of the Company, whereby the executives, deferred a certain portion of their salaries. The deferred salaries bear interest of 3.25%, on all cumulative balances outstanding as of February 1, 2022. The Company pays each of the executives $2.5 thousand per month and there is no fixed maturity date. During the six months ended June 30, 2025 and 2024, the Company incurred $2 thousand and $2 thousand of interest expense, respectively, which is recognized in interest expense in the unaudited condensed consolidated statements of operations. As of June 30, 2025 and December 31, 2024, the Deferred Compensation Agreement had a balance of $0.1 million and $0.1 million, respectively.
| F-49 |
Note 8. Equity Offerings
Class A and Class B Common Stock
Put and Call Option Agreements
Baron Hunter Group, LLC and Steele Creek Partners, LLC, related parties through common management, have entered into separate agreements with the Company whereby each was granted the right to sell to the Company ("Put Option") up to a $2.0 million value of common shares of the Company at a discount of 10% below the IPO issue price, limited to the lesser of $2.0 million or 10% of the IPO gross offering proceeds, exercisable for a period of ten (10) business days following the effective date of the IPO. The Company was granted the right to purchase (Call Option) up to a maximum of $2.0 million of common shares from each of Baron Hunter Group, LLC and Steele Creek Partners, LLC, at a premium of 10% in excess of the IPO issue price, limited to the lesser of $2.0 million or 10% of the IPO gross offering proceeds, exercisable for a period of ten (10) business days following the effective date of the IPO. This agreement was subsequently amended. See Note 13, Subsequent Events, for additional details.
On June 13, 2025, the Company adopted resolutions to amend and restate its certificate of incorporation to, among other things, (i) provide for a classified structure for the election of directors; (ii) increase the number of shares of common stock, par value $0.0001 per share, authorized for issuance to 14,900,000, consisting of 12,000,000 shares of Class A common stock and 2,900,000 shares of Class B common stock; (iii) authorize the Board of Directors to issue up to 100,000 shares of preferred stock, par value $0.0001 per share.
Baron Hunter Group, LLC
On May 16, 2025, Baron Hunter Group, LLC transferred 25,000 shares of the Company's Class B Common Stock (the "Shares") with a par value of $0.00001 per share to Glenn Josephs. Upon the occurrence of the transfer, the Shares automatically converted into 25,000 shares of Class A Common Stock with a par value of $0.00001 per share.
Series Seed Convertible Preferred Stock
Prior to the repurchase of the Series Seed Preferred Stock on April 12, 2024, as further discussed below, the Company’s Series Seed Preferred Stock consisted of the following:
| Shares Authorized | Shares Issued
and Outstanding | Carrying Value | Original Issue
Price | Conversion Price | Common Shares Upon Conversion | |||||||||||||||||
| 250,000 | 250,000 | $ | 1,000,000 | $ | 4.00 | $ | 4.00 | 250,000 | ||||||||||||||
Prior to the repurchase, the Series Seed Preferred Stock was recorded on the December 31, 2023 audited consolidated balance sheets at its redemption value which was the carrying value of the redeemable preferred stock.
Series Seed Stock Repurchase Agreement
On April 12, 2024, the Company and Motherlode entered into a Stock Repurchase Agreement (the "Series Seed Stock Repurchase Agreement"), whereby the Company repurchased from Motherlode, 250,000 shares of Series Seed Preferred Stock, $0.0001 par value per share, at a purchase price of $4.00 per share, or $1 million in aggregate (the "Purchase Price"). The Purchase Price consists of the Motherlode Promissory Note (see Note 6), and is secured by personal guarantees of the Company's personnel. Additionally, as part of the closing, the Company shall pay to Apogee, all amounts due under the Apogee Promissory Note, in the amount of approximately $619 thousand. Additionally, the Company, shall pay all amounts remaining due under the Apogee Installment Payment Agreement, in the amount of approximately $330 thousand, together with a remaining hardware invoice in the amount of approximately $38 thousand. As part of the closing, certain principals of Motherlode resigned from the Board of Directors of the Company, as such Motherlode is no longer considered an ongoing related party.
Series B Convertible Preferred Stock
On various dates from January of 2022 through June of 2024 the Company entered into the Stock Purchase Agreements with certain investors, relating to the issuance and sale by the Company to the investors of up to 327,067 shares of Series B Preferred Stock (the “Series B Preferred Stock”) for an aggregate purchase price ranging from $10.00 to $16.56 per share of Series B Preferred Stock.
On various dates from January of 2022 through June of 2024, the Company and the investors completed the issuance and sale of 320,522 shares of Series B Preferred Stock for an aggregate purchase price of $4.8 million. In addition, in lieu of cash, the Company issued on various dates 6,545 Series B Preferred Stock to vendors and shareholders as compensation for services rendered. The Company determined the fair value of the 6,545 shares issued for services based on the Series B Preferred Stock price from recent sales.
| F-50 |
In connection with the issuance of the Series B Preferred Stock, the Company incurred direct and incremental expenses of $0.1 million, comprised of legal fees and shares paid-in-kind for finders’ fees, which were expensed as incurred as they were de minimis.
Prior to the conversion of the Series B Preferred Stock on August 20, 2024, as further discussed below, the Company’s Series B Preferred Stock consisted of the following:
| Shares Authorized | Shares Issued
and Outstanding | Carrying Value | Original Issue
Price | Conversion Price | Common Shares Upon Conversion | |||||||||||||||||
| 327,067 | 327,067 | $ | 5,298,006 | $10.00 - $16.56 | $10.00 - $16.56 | 327,067 | ||||||||||||||||
Conversion of Series B Preferred Stock
On August 20, 2024, the Series B Preferred Stock Holders agreed to convert the Series B Preferred Shares into Common Stock of the Company, on a one-for-one basis, into an aggregate 327,067 common shares of the Company in accordance with the original conversion terms and conditions. In connection with the reverse recapitalization, the 327,067 common shares were exchanged in accordance with the exchange ratio of 4.11795:1, therefore, in aggregate, 1,346,846 shares of Class A and Class B common shares were issued.
Note 9. SAFEs
Strategic Investment
On January 6, 2025, the Company entered into a Simple Agreement for Future Equity (the “SAFE Agreement” or "SAFE") with an investor (the “Investor”). Pursuant to the terms of the SAFE Agreement, the Company received an aggregate amount of $1.0 million (the “SAFE Amount”). In the event of an equity financing, as defined in the SAFE Agreement, the investment made pursuant to the SAFE Agreement will be automatically converted into the number of shares of the Company based on the lowest price per share of the Class A Common Stock sold in the future equity financing multiplied by a discount price of 85%.
The SAFEs were recorded as a liability in accordance with the applicable accounting guidance due to the potential for the Company to settle the fixed outstanding balance of the SAFE liability in a variable number of shares. The initial fair value of the SAFE liability was $1.0 million. Subsequent changes in fair value at each reporting period are recognized in the unaudited condensed consolidated statement of operations as changes in fair value of SAFE liability. There was no change in fair value of the SAFE between issuance and June 30, 2025, and as such no gain or loss was recorded on the unaudited condensed consolidated statements of operations.
Note 10. Employee Benefit Plan
In April 2024, the Company established a Safe Harbor 401(k) contribution plan under Section 401(k) of the Internal Revenue Code (“401(k) Plan”). Under the terms of the 401(k) Plan, all full-time employees were eligible to make voluntary contributions as a percentage or defined amount of compensation. The Company made matching contributions based on 100% of each employee’s contribution up to the first 3% of pay and then on 50% of employee contributions on the next 2% of pay of the employee's eligible compensation. The Company had expenses related to the matching contribution for the six months ended June 30, 2025 and 2024 of approximately $32 thousand and $30 thousand, respectively.
Note 11. Commitments and Contingencies
In the normal course of business, the Company is at times subject to pending and threatened legal actions. In management’s opinion, any potential loss resulting from the resolution of these matters will not have a material effect on the results of operations, financial position or cash flows of the Company.
As of June 30, 2025, the Company had no outstanding litigation.
| F-51 |
Phantom Stock Awards
The Company has an authorized Phantom Equity Plan to grant phantom stock units to key employees of the Company as a means to provide deferred compensation. The Phantom Equity Payments (“Rights”) are cash settled and calculated by reference to the value of the Company as of the date of the award of such Rights as determined in accordance with the Plan. The maximum amount of all Rights authorized by the Plan shall be 10% of the Company's total appreciation above the market value of the Company as determined in accordance the Plan. Upon a payment event in accordance with the Plan, a participants right to any unvested Rights would terminate and be cancelled without any further payment. Rights will also terminate and be forfeited if the participant is terminated for cause. If a participant breaches any noncompetition, confidentially, nonsolicitation, noninterference or nondisclosure agreement, all unvested and vested Rights will terminate and be forfeited and the participant would be required to repay immediately any payments previously made.
During the six months ended June 30, 2025 and 2024, the Company did not grant any phantom stock awards. The phantom stock awards are accounted for as a liability under ASC 718 and as of December 31, 2023 the Company had a liability of $116 thousand on the audited consolidated balance sheets. There were 55 thousand phantom stock awards granted, of which 25 thousand did not vest and were forfeited prior to January 1, 2024. In September 2024, the 25 thousand vested phantom stock awards were exchanged for Class B common stock, at an exchange of 4.11785:1, for 102,949 shares, as a result of the merger and recapitalization transaction with DeltaMax as described in Note 1. At June 30, 2025 and December 31, 2024 there are no phantom stock awards outstanding.
Note 12. Net Loss per Share
Participating securities have the effect of diluting both basic and diluted earnings per share during periods of income. During periods of loss, no loss is allocated to the participating securities since the holders have no contractual obligation to share in the losses of the Company.
At June 30, 2025 there were no common share equivalents outstanding.
Anti-dilutive common share equivalents excluded from the computation of diluted net loss per share at June 30, 2024 consisted of Series B convertible preferred stock of 325,267 and phantom stock awards of 25,000.
| F-52 |
Note 13. Subsequent Events
The Company evaluated subsequent events and transactions that occurred after the balance sheet date up to the date that the financial statements were issued. Based upon this review, the Company did not identify any subsequent events, other than noted below, that would have required adjustment or disclosure in the financial statements.
Extension Second Endurance Promissory Note
On July 7, 2025, the Second Endurance Promissory Note was modified to extend the term of the note an additional 90 days, to September 25, 2025. No other terms of the agreement were amended.
Conversion of Class B Common Stock
On August 8, 2025, all Class B Common Stockholders converted all 2,477,050 shares of Class B Common Stock with a par value of $0.00001 per share into Class A Common Stock with a par value of $0.00001 per share.
Amendment to the Put and Call Option Agreements
Baron Hunter Group, LLC and Steele Creek Partners, LLC, related parties through common management, previously entered into separate Put and Call Option Agreements with the Company. On August 11, 2025 the Put and Call Option Agreements were amended whereby Baron Hunter and Steele Creek are each granted the right to sell to Elauwit (Put Option) up to a $1.0 million of common shares of Elauwit at a discount of 10% below the IPO issue price. Elauwit is granted the right to purchase (Call Option) up to a maximum of $1 million of common shares from each of Baron Hunter and Steele Creek at a premium of 10% in excess of the IPO issue price.
Amendment to the Certificate of Incorporation
On August 11, 2025, the Company adopted resolutions to amend and restate its certificate of incorporation to, among other things, (i) authorize 15,000,000 of capital stock which is divided into two classes, with 14,900,000 shares designated as Common Stock, $0.0001 par value per share (the “Common Stock”), and 100,000 shares designated as Preferred Stock, par value $0.0001 per share (the “Preferred Stock”) and (ii) the holders of Common Stock hold all voting power.
| F-53 |
Through and including , 2025 (the 25th day after the date of this prospectus), all dealers effecting transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This requirement is in addition to a dealers’ obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or membership.
Shares of common stock
ELAUWIT CONNECTION, INC.
PROSPECTUS
Sole Bookrunner
Craig-Hallum
, 2025
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses, all of which will be borne by the registrant, in connection with the sale and distribution of the securities being registered, other than the underwriting discounts and commissions. All amounts shown are estimates except for the SEC registration fee and the FINRA filing fee.
| SEC registration fee | $ | 3,108 | ||
| FINRA fees | $ | 3,500 | ||
| Printing and engraving expenses | $ | 35,000 | ||
| Accounting fees and expenses | $ | 425,000 | ||
| Legal fees and expenses | $ | 400,000 | ||
| Miscellaneous | $ | 33,392 | ||
| Total | $ | 900,000 |
Item 14. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (“DGCL”) provides that a Delaware corporation, in its certificate of incorporation, may limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
| · | transaction from which the director derived an improper personal benefit; | |
| · | act or omission not in good faith or that involved intentional misconduct or a knowing violation of law; | |
| · | unlawful payment of dividends or redemption of shares; or | |
| · | breach of the director’s duty of loyalty to the corporation or its stockholders. |
Under Section 145 of the DGCL, we can indemnify our directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”). Our certificate of incorporation (Exhibit 3.1 to this registration statement) provides that we must indemnify our directors and officers to the fullest extent permitted by law and requires us to pay expenses incurred in defending or other participating in any proceeding in advance of its final disposition upon our receipt of an undertaking by the director or officer to repay such advances if it is ultimately determined that the director or officer is not entitled to indemnification. Our certificate of incorporation further provides that rights conferred under such certificate of incorporation do not exclude any other right such persons may have or acquire under the certificate of incorporation, the bylaws, any statute, agreement, vote of stockholders or disinterested directors or otherwise.
The certificate of incorporation also provides that, pursuant to Delaware law, our directors shall not be liable for monetary damages for breach of the directors’ fiduciary duty of care to us and our stockholders. This provision in the certificate of incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, each director will continue to be subject to liability for breach of the director’s duty of loyalty to us for acts or omissions not in good faith or involving intentional misconduct, or knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. We also intend to obtain directors’ and officers’ liability insurance pursuant to which our directors and officers are insured against liability for actions taken in their capacities as directors and officers.
In addition, we intend to enter into agreements to indemnify our directors and certain of our officers in addition to the indemnification provided for in the certificate of incorporation. These agreements, among other things, indemnify our directors and some of our officers for certain expenses (including attorney’s fees), judgments, fines and settlement amounts incurred by such person in any action or proceeding, including any action by or in our right, on account of services by that person as a director or officer of our company or as a director or officer of our subsidiary, or as a director or officer of any other company or enterprise that the person provides services to at our request.
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The underwriting agreement(s) that we may enter into may provide for indemnification by any underwriters, its directors, or its officers who sign the registration statement and our controlling persons for some liabilities, including liabilities arising under the Securities Act.
Item 15. Recent Sales of Unregistered Securities.
The information below lists all of the securities sold by us during the past three years that were not registered under the Securities Act:
| · | On January 6, 2025, we issued approximately $1.0 million in a SAFE for cash pursuant to an exemption from registration under the Securities Act available under Section 4(a)(2) as a transaction not involving a public offering. In connection with this offering, we will either (i) pay the holder an amount in cash equal to the amount the holder invested in the SAFE or (ii) issue a number of shares of common stock to the holder equal to (a) the amount of their investment divided by (b) the public offering price multiplied by the discount rate of 85%, whichever is greater. If the SAFE is converted into shares of common stock, 117,647 shares of common stock would be issuable to the SAFE holder, based on an assumed offering price of $10.00. |
Item 16. Exhibits and Financial Statement Schedules.
The following exhibits to this registration statement included in the Index to Exhibits are incorporated by reference.
INDEX TO EXHIBITS
II-2
| ____________ |
| * | Filed herewith. |
| ** | To be filed by amendment. |
| + | Management contract or compensatory arrangement. |
| ^ | Schedules and similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish a copy of any omitted schedule or similar attachment to the Securities and Exchange Commission upon request. |
Item 17. Undertakings.
The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
The undersigned registrant hereby undertakes:
| (a)(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; | |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and | |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; | |
provided, however, that the undertakings set forth in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement or are contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement. | ||
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| (2) | That, for the purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. | |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; | |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; | |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and | |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
| (c) | That, |
| (1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective. | |
| (2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
II-4
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Columbia, State of South Carolina, on August 29, 2025.
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Barry Rubens | |
| Name: | Barry Rubens | |
| Title: | Chief Executive Officer | |
| (principal executive officer) | ||
Each person whose signature appears below appoints Barry Rubens and Sean Arnette, and each of them, each of whom may act without the joinder of the other, as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this registration statement (and to any registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as amended), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Barry Rubens | Chief Executive Officer and Director | August 29, 2025 | ||
| Barry Rubens | (principal executive officer) | |||
| /s/ Sean Arnette | Chief Financial Officer and Treasurer | August 29, 2025 | ||
| Sean Arnette | (principal financial and accounting officer) | |||
| /s/ Dan McDonough, Jr. | Executive Chairman | August 29, 2025 | ||
| Dan McDonough, Jr. |
| /s/ Taylor Jones | President, Chief Technology Officer and Director | August 29, 2025 | ||
| Taylor Jones |
| /s/ Scott Barton | Director | August 29, 2025 | ||
| Scott Barton |
| /s/ Elbert Gene Basolis, Jr. | Director | August 29, 2025 | ||
| Elbert Gene Basolis, Jr. |
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| /s/ Frederick Berk | Director | August 29, 2025 | ||
| Frederick Berk |
| /s/ Leslie Goodman | Director | August 29, 2025 | ||
| Leslie Goodman |
| /s/ Glenn Josephs | Director | August 29, 2025 | ||
| Glenn Josephs | ||||
| /s/ David O’Brien | Director | August 29, 2025 | ||
| David O’Brien | ||||
| /s/ Roger Shannon | Director | August 29, 2025 | ||
| Roger Shannon |
II-6
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this “Agreement”) is entered into on September 13, 2024 by and between DELTAMAX, INC., a Delaware corporation having its principal office at 300 Park Avenue, 16th Floor, New York, New York 10022 (“DeltaMax”), ELAUWIT CONNECTION, INC., a Delaware corporation having its principal office at 1520 Locust Street, Suite 901, Philadelphia, Pennsylvania 19102 (“Elauwit”), Baron Hunter Group, LLC, a Wyoming limited liability company having its principal office at 1520 Locust Street, Suite 901, Philadelphia, Pennsylvania 19102 (“Baron”), Steele Creek Partners, LLC a North Carolina limited liability company having its principal office at ### (“Steele”) and Minotaur Networks, LLC, a South Carolina limited liability company having its principal office at ### (“Minotaur” and collectively with Baron and Steele, the “Founding Shareholders”).
WHEREAS, DeltaMax has authorized capital of 7,000,000 shares of Class A Common Stock (the “Class A Common Stock”) and 3,000,000 shares of Class B Common Stock (the “Class B Common Stock”), each with a par value of $0.00001 per shar, of which 750,000 Class A Common Stock are issued and outstanding and 0 Class B Common Stock are issued and outstanding; and
WHEREAS, all of the issued and outstanding Common Stock of DeltaMax is owned by Maxim Cerith, LLC (the “Parent”); and
WHEREAS, Elauwit has authorized capital of 1,032,067 shares of common stock of which 1,032,067 shares of are issued and outstanding (the “Elauwit Common Stock”); and
WHEREAS, as of the date hereof, the Founding Shareholders collectively own 598,188 shares of Elauwit Common Stock; and
WHEREAS, in connection with the proposed initial public offering of the Common Stock of DeltaMax (the “IPO”) and prior to the effectiveness of Form S-1 Registration Statement to be filed by DeltaMax with the Securities and Exchange Commission, DeltaMax and Elauwit desire to merge whereupon the outstanding capital stock of Elauwit will be converted into common stock of DeltaMax and DeltaMax will continue as the surviving corporation and the separate existence of Elauwit will then cease (the “Merger”); and
WHEREAS, the parties intend that the transaction contemplated by this Agreement constitutes a tax-free merger of Elauwit into DeltaMax (e.g., a two-party A reorganization pursuant to Code Section 368(a)(1)(A)), with Elauwit shareholders receiving stock of DeltaMax in exchange for their Elauwit Common Stock; and
WHEREAS, the respective Boards of Directors of DeltaMax and Elauwit have each determined that the Merger is advisable and in the best interests of DeltaMax and Elauwit and have approved and adopted this Agreement and have recommended that the respective equity holders of DeltaMax and Elauwit approve and adopt this Agreement and approve the Merger; and
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WHEREAS, the shareholders of DeltaMax and Elauwit have unanimously approved and adopted this Agreement and the Merger.
NOW, THEREFORE, in consideration of the premises and the respective representations, warranties, covenants and agreements set forth in this Agreement, DeltaMax and Elauwit agree as follows:
ARTICLE I
The Merger
1.1 Recitals. The above recitals are hereby incorporated as part of this Agreement as if fully set forth herein.
1.2 Merger. As of the Effective Time (as hereafter defined), in accordance with the provisions of this Agreement and the Delaware General Corporation Law (the “DGCL”), Elauwit shall be merged with and into DeltaMax, with DeltaMax continuing its corporate existence as the surviving corporation (the “Surviving Corporation”). The separate corporate existence of Elauwit shall then cease.
1.3 Change of Name. As of the Effective Time, the name of the Surviving Corporation shall be changed to “Elauwit Connection, Inc.”
1.4 Rights and Obligations of Surviving Corporation. Upon and after the Effective Time, the Surviving Corporation shall possess all the rights, privileges and powers, and shall be subject to all the restrictions and duties of Elauwit. All real and personal property of every kind and description, tangible and intangible, belonging to each of the merged corporations shall be vested in the Surviving Corporation. All rights, privileges and powers of Elauwit shall be vested in and be the property of the Surviving Corporation and all debts, liabilities and obligations of Elauwit shall attach to the Surviving Corporation and may be enforced against it as if said debts, liabilities and obligations had been incurred or contracted by the Surviving Corporation.
1.5 Effective Time. Upon the execution of this Agreement, the parties will cause a Certificate of Merger (the “Certificate of Merger”) meeting the requirements of Section 251 of the DGCL, in substantially the form of Exhibit A hereto, to be executed and filed with the Secretary of State of the State of Delaware. The Merger will become effective at the time when the Certificate of Merger has been filed with the Secretary of State of the State of Delaware (the “Effective Time”).
1.6 Effects of the Merger.
(a) General. The Merger will have the effects specified in this Agreement and Section 259 of the DGCL.
(b) Certificate of Incorporation and By-Laws. As of the Effective Time, the Certificate of Incorporation of DeltaMax as in effect immediately prior to the Effective Time shall continue to be the certificate of incorporation of the Surviving Corporation until thereafter amended in accordance with the provisions thereof and applicable law. The By-Laws of DeltaMax as in effect immediately prior to the Effective Time (the “By-Laws”) will become the Surviving Corporation’s bylaws until thereafter amended in accordance with the provisions thereof and applicable law.
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(c) Directors and Officers. At and as of the Effective Time, the board of directors of Surviving Corporation shall consist of the board of directors of Elauwit immediately prior to the Effective Time. The officers of Elauwit immediately prior to the Effective Time shall become the officers of the Surviving Corporation. All directors and officers of the Surviving Corporation shall serve until their respective successors are duly elected or appointed and qualified in accordance with the provisions of the By-laws.
(d) DeltaMax Funds/Additional Capital. Prior to the Closing, DeltaMax shall have $250,000 in cash (to be allocated as set out in Exhibit B) and no liabilities other than those mutually agreed to by the parties. Utilization of these funds shall require the mutual consent of a designated representative of the DeltaMax shareholders (“DeltaMax Representative”) and the Elauwit CEO. Until the completion of the IPO, any additional capital received by the Surviving Corporation shall be subject to the mutual consent of the DeltaMax Representative and the Elauwit CEO unless: (i) the capital is received in exchange of the issuance of Class A Common Stock of the Surviving Corporation and the recipient(s) of such Class A Common Stock are treated equally in all respects with all existing holders of Class A Common Stock; (ii) the capital is raised in connection with a valuation in excess of $20,000,000; and (iii) the total capital raised, whether in one transactions or a series of related transactions, is less than $5,000,000. In no event shall a capital raise or other issuance of securities take place that inequitably treats holders of any class of common stock of the Surviving Corporation.
(e) Effect on Capital Stock. Each share of Elauwit Common Stock issued and outstanding as of the Effective Time will be cancelled and exchanged for shares of validly issued, fully paid and nonassessable shares of either Class A or Class B Common Stock of the Surviving Corporation in accordance with Article II below. Immediately after the Closing, Elauwit shareholders shall collectively own 85% of the Surviving Corporation’s equity securities and DeltaMax shareholders shall collectively own 15% of the Surviving Corporation’s equity securities.
ARTICLE II
Classes and Conversion of Capital Stock
2.1 Classes of Common Stock. The Surviving Corporation shall authorize two classes of common stock, Class A Common Stock and Class B Common Stock. All shares of Elauwit Common Stock which are held by the Founding Shareholders as of the Effective Time, shall be converted into Class B Common Stock of the Surviving Corporation on a 4.11795:1 basis. All shares of Elauwit Common Stock which are held by all other stockholders as of the Effective Time shall be converted into Class A Common Stock of the Surviving Corporation on a 4.11795:1 basis. Until the completion of the IPO, any increase in the number of authorized shares of Class A Common Stock and/or Class B Common Stock, in addition to any requirements contained in the Certificate of Incorporation of the Surviving Corporation and applicable law, shall require the advanced written consent of the DeltaMax Representative.
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2.2 Rights of Class A and Class B Common Stock. Effective on the date on which the Securities and Exchange Commission (the “SEC”) has confirmed that it has no further comments on the Surviving Corporation’s Form S-1 filing and the SEC grants the Surviving Corporation’s request to go effective (the “Going Effective Date”), on all matters requiring the vote of the stockholders of the Surviving Corporation, the Class B Common Stock will have the right to ten (10) votes per share of Class B Common Stock while Class A Stock will have one (1) vote per share of Class A Common Stock. Prior to the Going Effective Date, Class B Common Stock will have the same voting rights as Class A Common Stock on all matters requiring the vote of the stockholders of the Surviving Corporation. Class B Common Stock will automatically convert to Class A Common Stock on sale of any Class B Stock. In no event shall holders of the Class B Stock use their super-voting rights to increase the value of their shareholdings inequitably relative to other shareholders of the Surviving Corporation.
The enhanced voting equivalent of the Class B Stock will expire on the earlier to occur of the following:
(a) On the third anniversary of the Going Effective Date;
(b) The Surviving Corporation maintaining a public equity market capitalization in excess of $100,000,000.00 for forty-five (45) consecutive trading days;
(c) The total ownership of Class B Common Stock falls below twenty percent (20%) of all classes of common stock the Surviving Corporation; or
(d) Regulatory, exchange, listing or index requirements change so as to prohibit such voting rights in such a way that the Surviving Corporation is unable to continue with its present status, exchange, listing or index affiliations.
ARTICLE III
Closing
3.1 Closing. The consummation of the Merger shall take place upon the filing of the Certificate of Merger with the Secretary of State of the State of Delaware as soon as reasonably possible after each party has duly executed this Agreement. At the Closing, each of the Parties shall deliver such other documents, instruments and agreements as are required to be delivered by such Party at Closing pursuant to this Agreement.
ARTICLE IV
Covenants and Agreements
4.1 Third Party Consents. The Parties agree to fully cooperate in obtaining all third-party consents or assignments that may be necessary for the ongoing business operations of the Surviving Corporation. Within ninety (90) days after the Closing, Elauwit shall obtain the consent of all third-parties which are required to assign the Material Contracts to the Surviving Corporation.
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4.2. Update Information. DeltaMax and Elauwit agree to provide the other with any updates, additions, changes or corrections to the information disclosed to the other party pursuant to this Agreement necessary to make such information substantially complete, accurate and current through the Effective Time.
4.2 Reasonable Best Efforts. Subject to the terms and conditions of this Agreement, each Party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable to consummate the transactions contemplated by this Agreement. Each Party shall execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or appropriate in order to consummate or implement the contemplated transaction.
4.3 Public Announcements. Other than the Surviving Corporation, no Party shall issue any press release or make any public statement with respect to the contemplated transaction.
4.4 Equal Treatment of Shareholders. Following the Closing, the Founding Shareholders shall not, and shall use commercially reasonable efforts to cause each holder of Elauwit Common Stock prior to the Closing who is also a lender to the Elauwit not to, in their dual capacity as debt holders, inequitably treat holders of DeltaMax Common Stock through default or other provision in any applicable loan documents at any time after signing this Agreement, in each case without the prior written consent of the DeltaMax Representative, which consent may be withheld in its sole and absolute discretion.
4.5 Further Action. If at any time after the Effective Time any additional action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges and powers of either DeltaMax or Elauwit, the officers and directors of the Surviving Corporation are fully authorized, in the name of and on behalf of, DeltaMax and Elauwit to effectuate all such lawful and necessary action.
4.6 DeltaMax Director. Within 30 days of Closing the Surviving Corporation shall cause one director appointed by the DeltaMax Representative, whose term shall expire no less than two (2) years following the Closing, to be named to the board of directors of the Surviving Corporation. If, at any time between the Closing and the date that is the two (2) year anniversary of the Closing, the director appointed by the DeltaMax Representative departs or announces their intent to depart the board of directors, the DeltaMax Representative shall nominate a qualified director which shall be subject to the approval of the sitting directors of the Surviving Corporation, which approval shall not be unreasonably withheld, conditioned or delayed. Subject to such approval, said nominee shall be appointed to fill the vacancy left by the departing director appointed by DeltaMax. If a shareholder vote is required to elect the director appointed by DeltaMax, the Founding Shareholders hereby agree to vote to elect the director appointed by DeltaMax pursuant to this Section 4.6.
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ARTICLE V
Representations and Warranties
5.1 Mutual Representations. Each of DeltaMax and Elauwit represents and warrants to the other that:
(a) it is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the requisite corporate power and authority to carry on its business as now being conducted.
(b) it has the requisite corporate power and authority to enter into this Agreement and to consummate the merger transaction contemplated hereby.
(c) all of its material contracts, liabilities and obligations have been disclosed to the other party.
(d) all records, book and other information provided are complete, accurate and current through the date of this Agreement.
(f) the consummation of the contemplated transaction will not (i) violate or conflict with any of the organizational documents of either Party; constitute a violation of any provision of any law applicable to either Party; (ii) constitute a default or give rise to ay right of termination, cancellation or acceleration of any right or obligation of either Party or to a loss of any benefit to which such Party is entitled under any provision of any agreement, contract or other instrument to which such Party is bound; or (iii) result in the creation or imposition of any lien upon or with respect to any Party or its assets.
(f) Neither DeltaMax or Elauwit has employed any broker or finder or incurred any liability for any brokers’, finders’ or agents’ fees for which either party is or could become liable in connection with, or as a result of, the transactions contemplated by this Agreement.
(g) the execution and delivery of this Agreement and the consummation of the transaction contemplated by this Agreement has been approved by Resolutions of a unanimous vote of its Board of Directors and Stockholders.
5.2 Representations of Elauwit. Each of Elauwit and the Founding Shareholders, jointly and severally, represent and warrant to DeltaMax that:
(a) Elauwit has delivered to DeltaMax accurate and complete copies of Elauwit’s organizational documents, including all amendments thereto. Elauwit is not in violation of any of the provisions of its organizational documents, and no condition or circumstance exists that likely would result in such a violation.
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(b) The authorized capital stock of Elauwit consists of 1,032,067 shares of common stock. Prior to the date hereof, all preferred stock and phantom equity of Elauwit was converted to Elauwit Common Stock (the “Pre-Merger Conversion”). The Pre-Merger Conversion was unanimously approved by the stockholders of Elauwit. As of the date hereof and following the Pre-Merger Conversion, 1,032,067 shares of Elauwit Common Stock are issued and outstanding and no shares of preferred stock nor phantom equity are issued and outstanding. Schedule 5.2(b)(i) contains a complete and accurate list of the holders of all issued and outstanding shares of Elauwit Common Stock. Except as set forth on Schedule 5.2(b)(i), there are no (i) outstanding equity interests of the Elauwit, (ii) securities of the Elauwit convertible into or exchangeable for equity interests of the Elauwit or (iii) subscriptions, warrants, puts, calls, options, rights of first refusal, or other rights to acquire from the Elauwit, or other obligations of the Elauwit to issue, any equity interests or securities convertible into or exchangeable for equity interests of the Elauwit. Except as set forth on Schedule 5.2(b)(ii), Elauwit has no subsidiaries and there are no corporations, partnerships, joint ventures, associations or other similar entities in which the Elauwit owns, of record or beneficially, any direct or indirect equity interests or any right (contingent or otherwise) to acquire the same. There are no off-balance sheet transactions, arrangements, obligations, or liabilities of Elauwit, or any of its subsidiaries listed on Schedule 5.2(b)(ii), whether direct, indirect, absolute, contingent or otherwise which are required to be disclosed or reflected and are not disclosed or reflected in the Financial Statements.
(c) Schedule 5.2(c) sets forth accurate and complete copies of (i) the consolidated financial statements of Elauwit and its subsidiaries as of December 31, 2023, 2022, and 2021 (the “Financial Statements”) and (ii) the balance sheet of Elauwit (the “Balance Sheet”) as of July 31, 2024 (the “Balance Sheet Date”). The Financial Statements, Balance Sheet, and all other financial information Elauwit has delivered to DeltaMax (i) are true, accurate and complete in all material respects; (ii) are consistent with the books and records of Elauwit and its subsidiaries; and (iii) present fairly and accurately the financial condition of Elauwit and its subsidiaries as of the respective dates thereof. All material liabilities of the Elauwit and its subsidiaries have been incurred in the ordinary course of business and are reflected in the Financial Statements.
(d) Schedule 5.2(d) sets forth a complete and accurate list of all material contracts of Elauwit, including:
(i) any contract that materially limits the right or ability of the company to compete with any other person in any line of business or geographic area;
(ii) any contract that obligates Elauwit to conduct business with any third party on a preferential or exclusive basis, other than such contracts that are not material to Elauwit’s business;
(iii) any contract relating to the indebtedness of Elauwit having an outstanding principal amount in excess of $50,000.00
(iv) any contract to or by which Elauwit is bound providing for payments to third parties in excess of $50,000.00 in any twelve-month period except subcontract agreements and purchase orders issued as part of the normal course of network construction operations;
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(v) any contract to or by which Elauwit is bound providing for the payment, increase, or vesting of any material benefits or compensation in connection with the Merger;
(vi) any other contract which is material to the operation of Elauwit.
All contracts listed on Schedule 5.2(d) are collectively referred to herein as the “Material Contracts”. Each Material Contract is in full force and effect and is a legal, valid, and binding agreement of Elauwit enforceable against each other party thereto. Neither Elauwit nor the other party to any Material Contract is in breach or default thereunder. The execution of this Agreement nor the consummation of the Merger will result in a breach or default under any Material Contract.
(e) There are no claims, suits, arbitrations or other legal proceedings pending or threatened against or affecting Elauwit. No event has occurred, and no condition, act, omission or circumstance exists, that (with or without notice or lapse of time) might directly or indirectly give rise to or serve as a basis for the commencement of any such claim or proceeding against Elauwit.
(f) Elauwit has conducted, and is conducting its business, and is in full compliance, with each legal requirement that is applicable to it, and no event or act or omission has occurred, and no condition or circumstance exists, that might (with or without notice or lapse of time) constitute, or result directly or indirectly in, a default under, a breach or violation of, or a failure to comply with, any such legal requirement. Elauwit has not received any notice from any third party regarding any actual, alleged or potential violation of any legal requirement.
(g) Elauwit has timely filed all tax returns that Elauwit was required to file, and such tax returns are accurate and complete in all respects. Elauwit has no liability for unpaid taxes. Elauwit is not a party to or bound by any tax indemnity agreement, tax sharing agreement or similar contract.
(h) All of Elauwit’s bank loans and credit lines have been disclosed to DeltaMax, and Elauwit is not in default, and there does not exist any event with or without notice or lapse of time would constitute a default, under the terms thereof.
(i) Schedule 5.2(i) sets forth a true and complete list, specifying as to each as applicable, the name of the current owners, jurisdictions, and application or registration numbers, as of the date hereof, of all: (i) intellectual property owned by Elauwit that is the subject of any issuance, registration, certificate, application, or other filing by, to or with any governmental entity or authorized private registrar, including patents, patent applications, trademark registrations and pending applications for registration, copyright registrations and pending applications for registration, and internet domain name registrations; and (ii) material unregistered intellectual property owned by Elauwit. Except as set forth on Schedule 5.2(i), Elauwit owns all such intellectual property free and clear of any liens or claims of joint ownership by any third-parties.
(j) Except as set forth on Schedule 5.2(j), Elauwit has good and valid title to or a valid leasehold interest in all of the tangible personal property shown to be owned or leased by them in the Financial Statements (except for such personal property sold or disposed of subsequent to the date of Balance Sheet Date in the ordinary course of business consistent with past practice since such date), free and clear of any liens. Elauwit owns or has a valid right to use all of the properties and assets necessary and sufficient for, or used in, the conduct for its business, such properties and assets are adequate for the uses to which each is presently being put in its business, and Elauwit’s ownership and rights to use such properties and assets will survive unchanged the consummation of the Merger.
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(k) Except as set forth on Schedule 5.2(k)(i), Elauwit owns no real property. The real property demised by the leases set forth on Schedule 5.2(k)(ii) (the “Leases”) sets forth all of the real property leased by Elauwit (the “Leased Real Property”). Neither Elauwit nor any of the counterparties are in a material breach or material default under any of the Leases. To Elauwit’s knowledge, (i) no person other than Elauwit has any right to occupy or lease the Leased Real Property and (ii) the leasehold estate created by the Leases are all valid leasehold interest held by Elauwit free and clear of any liens.
(l) Schedule 5.2(l) contains a list of each Benefit Plan. For purposes of this Section 5.2(j), “Benefit Plan” means any “employee benefit plan” (as defined in Section 3(3) of ERISA), retirement, employment, compensation, incentive, stock option, restricted stock, stock appreciation right, phantom equity, change in control, severance, vacation, paid time off and fringe-benefit agreement, plan, policy and program, whether or not reduced to writing, in effect and covering one or more employees, former employees of the Elauwit, current or former managers of the Elauwit or the beneficiaries or dependents of any such persons, and is maintained, sponsored, contributed to, or required to be contributed to by the Elauwit, or under which the Elauwit has any liability. Each Benefit Plan complies in all material respects with all applicable laws (including ERISA and the Internal Revenue Code and the regulations promulgated thereunder) and has been operated and administered in all material respects in accordance with its terms.
(m) Schedule 5.2(m) sets forth an accurate and complete list of all employees and independent contractors employed by or providing services to Elauwit as of the date hereof by name and position. Except as set forth on Schedule 5.2(m), Elauwit does not have any written employments agreements with any of its employees or independent contractors. Elauwit is in material compliance with all Applicable Laws pertaining to employment and employment practices. Elauwit is not (i) delinquent with respect to payments to any of its employees or consultants for any wages, salaries, commissions, bonuses or other direct compensation for any services performed by them or amounts required to be reimbursed to such employees or consultants or any taxes or any penalty for failure to comply with any of the foregoing, or (ii) liable for any payment to any trust or other fund or to any governmental authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than immaterial routine payments to be made pursuant to claims in the ordinary course of business or as required by applicable law). Elauwit is not a party to, or bound by, any collective bargaining or other agreement with a labor organization representing any of its employees. There has not been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor activity or dispute affecting the Elauwit.
(n) Schedule 5.2(n) sets forth a complete and accurate list of all insurance policies held by Elauwit as of the date hereof. Elauwit is insured against such losses and risks and in such amounts as are customary in the businesses in which it is engaged and has complied in all material respects with the terms and provisions of such policies. Except as set forth on Schedule 5.2(n) there have been no material claims made by the Elauwit under any such insurance policies.
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(o) Elauwit operates at least one significant historic business line, or owns at least a significant portion of its historical business assets, in each case within the meaning of Treasury Regulation Section 1.368-1(d).
(p) Elauwit has exercised reasonable care to determine whether any Covered Person (as defined below), including any Covered Person of the Founding Shareholders, is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii), as modified by Rules 506(d)(2) and (d)(3), under the Securities Act (“Disqualification Events”). No Covered Person (including any Covered Person of the Founding Shareholders) is subject to a Disqualification Event. Elauwit has complied, to the extent required, with any disclosure obligations under Rule 506(e) under the Securities Act. For purposes of this Agreement, “Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act; provided, however, that Covered Persons do not include (a) DeltaMax, or (b) any person or entity that is deemed to be an affiliated issuer of Elauwit solely as a result of the relationship between Elauwit and DeltaMax.
5.3 Representations of DeltaMax. DeltaMax represents and warrants to Elauwit that:
(a) DeltaMax has delivered to Elauwit accurate and complete copies of (i) DeltaMax’s organizational documents, including all amendments thereto; (ii) all ownership records of DeltaMax; (iii) all financial records of DeltaMax (it being understood that DeltaMax is a newly created entity with no prior activity and its financial records shall consist of a current bank statement), and (iv) all material contracts of DeltaMax. DeltaMax is not in violation of any of the provisions of its organizational documents, and no condition or circumstance exists that likely would result in such a violation.
(b) It is the present intention of DeltaMax to continue at least one significant historic business line of Elauwit’s historic business line of Elauwit, or to use at least a significant portion of Elauwit’s historic business assets in a business, in each case within the meaning of Treasury Regulation Section 1.368-1(d).
ARTICLE VI
Employment Matters
6.1 Employees. As of the Effective Time, the employees of Elauwit shall become the employees of the Surviving Corporation, all of whom shall be “at will” employees subject to the rules, regulations, policies and procedures of the Surviving Corporation. Terms and conditions of employment shall be as established by the Surviving Corporation. To the extent possible and subject to applicable law, Elauwit employees shall retain all seniority rights and rights to vacation and/or personal time accrued during their employment with Elauwit. Notwithstanding the foregoing, Executive Management will be offered executive employment agreements setting forth the executive’s duties and other terms and conditions of employment, with a salary and other benefits consistent with the projections provided by Elauwit.
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6.2 Benefit Plans. Elauwit currently maintains a health insurance plan for the benefit of its eligible employees. All required employer contributions shall be paid in full as of the Effective Time. After the Effective Time, Elauwit employees shall have the right to participate in any health or retirement benefit plans reasonably comparable to those which they participated in as employees of Elauwit prior to the Effective Time.
6.3 Employee Stock Ownership Plan. The Surviving Corporation plans to offer eligible employees participation in an Employee Stock Option Plan (the “Plan”) to be adopted and implemented by the Surviving Corporation upon terms and conditions stated in the Plan. It is anticipated that the number of shares reserved under the Plan for Plan participants, will be equal to ten (10) percent of the sum of (a) the total number of issued and outstanding shares of the Surviving Corporation from time to time through completion of the IPO.
ARTICLE VII
Put/Call Option Agreements
7.1 Put/Call Option Agreements. Baron Hunter Group, LLC and Steele Creek Partners, LLC shall enter into separate agreements with the Surviving Corporation whereby each will be granted the right to sell to the Surviving Corporation (Put Option) up to a $2,000,000 value of common shares of the Surviving Corporation at a discount of 10% below the IPO issue price exercisable for a period of ten (10) business days following the effective date of the IPO. The Surviving Corporation will likewise be granted the right to purchase (Call Option) up to a maximum of $2,000,000 value of common shares from each of Baron Hunter Group, LLC and Steele Creek Partners, LLC, at a premium of 10% in excess of the IPO issue price exercisable for a period of ten (10) business days following the effective date of the IPO. Notwithstanding the foregoing, the exact value of each Put Option and each Call Option shall be determined no later than fifteen (15) days prior to the Going Effective Date and each value shall not exceed ten (10) percent of the gross proceeds from the IPO.
ARTICLE VIII
Indemnification
8.1 Survival. The representations and warranties of the parties contained in this Agreement shall survive the Closing and remain in full force and effect until twenty-four (24) months following the Effective Time, provided, however that the representations and warranties contained in Section 5.1 and Section 5.2(a) and (b) shall survive indefinitely. All covenants and agreements of the parties contained in this Agreement that by their terms contemplate performance after the Closing shall survive the Closing in accordance with their terms.
8.2 Indemnification By DeltaMax. The DeltaMax shall indemnify and hold the shareholders of Elauwit harmless from and against any and all damage, liability, loss and expense (including costs of investigation and reasonable counsel fees and expenses in connection with any action, suit or proceeding) actually incurred or suffered by such shareholders arising out of or resulting from (i) any inaccuracy or breach of any representation or warranty of DeltaMax made or contained in this Agreement or in any certificate or other document delivered by DeltaMax, or (ii) on account of the gross negligence, intentional misrepresentation, willful misconduct or fraud on the part of DeltaMax in connection with the execution of the Merger.
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8.2 Indemnification By the Founding Shareholders. The Founding Shareholders shall indemnify and hold DeltaMax and Parent harmless from and against any and all damage, liability, loss and expense (including costs of investigation and reasonable counsel fees and expenses in connection with any action, suit or proceeding) actually incurred or suffered by the DeltaMax and/or Parent arising out of or resulting from (i) any inaccuracy or breach of any representation or warranty of Elauwit made or contained in this Agreement or in any certificate or other document delivered by Elauwit, or (ii) on account of the gross negligence, intentional misrepresentation, willful misconduct or fraud on the part of Elauwit in connection with the execution of the Merger.
ARTICLE IX
Notices
10.1 Notices. All notices or other communications required or permitted to be given under this Agreement shall be deemed given when delivered personally or mailed by registered or certified mail, return receipt required, postage prepaid, or delivered by overnight courier service, to the parties as set for the below, or at such other addresses as a Party may designate in writing.
If to DeltaMax
DeltaMax, Inc.
300 Park Avenue
16th Floor
New York, New York 10022
Attn: Cliff Teller, President
Email: ###
With a copy to:
Harter Secrest & Emory LLP
1600 Bausch & Lomb Place
Rochester, New York 14604
Attn: C. Christopher Murillo, Esq.
Email: ###
If to Elauwit:
Elauwit Connection, Inc.
1520 Locust Street
Suite 901
Philadelphia, Pennsylvania 19102
Attn: Barry Rubens, CEO
Email: ###
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With a copy to:
Thomas J. Benedetti, Esq.
Azzolini & Benedetti, LLC
134 Columbia Turnpike
Florham Park, New Jersey 07932
Email: ###
If to Baron:
Baron Hunter Group, LLC
1520 Locust Street
Suite 901
Philadelphia, Pennsylvania 19102
Attn: Daniel McDonough, Jr.
Email: ###
With a copy to:
Thomas J. Benedetti, Esq.
Azzolini & Benedetti, LLC
134 Columbia Turnpike
Florham Park, New Jersey 07932
Email: ###
If to Steele:
Steele Creek Partners, LLC
###
Attn: Barry Rubens
Email: ###
With a copy to:
Thomas J. Benedetti, Esq.
Azzolini & Benedetti, LLC
134 Columbia Turnpike
Florham Park, New Jersey 07932
Email: ###
If to Minotaur:
Minotaur Networks, LLC
###
Attn: Taylor Jones
Email: ###
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With a copy to:
Thomas J. Benedetti, Esq.
Azzolini & Benedetti, LLC
134 Columbia Turnpike
Florham Park, New Jersey 07932
Email: ###
ARTICLE X
General Provisions
10.1 Amendment. No amendment to this Agreement shall be effective unless it has been executed in writing by DeltaMax, on the one hand, and Elauwit on the other hand, and no waiver of any provision of this Agreement shall be effective unless it has been executed in writing by the party giving such waiver.
10.2 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by the parties (whether by operation of Law or otherwise) without the prior written consent of the other party.
10.3 Entire Agreement. This Agreement, together with the Schedules Exhibits attached hereto, contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all other prior discussions and agreements with respect to the same.
10.4 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware and specifically the Delaware General Corporation Law, without giving effect to any choice or conflict of law provision. Any action or proceeding against any party to this Agreement arising out of or in any way relating to this Agreement shall be brought in any federal or state court located in the State of Delaware in New Castle County and each of the parties hereby submits to the exclusive jurisdiction of such courts for the purpose of any such action or proceeding.
10.5 WAIVER OF JURY TRIAL. EACH OF THE PARTIES ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OF THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OF THE OTHER PARTIES HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY OR PARTIES WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER; (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER; (C) IT MAKES SUCH WAIVER VOLUNTARILY; AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS CONTAINED IN THIS SECTION 10.5.
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10.6 Descriptive Headings; Interpretation. The descriptive headings herein are for convenience of reference only and shall not control or affect the meaning or construction of any provision of this Agreement. As used in this Agreement, the terms “include,” “includes” and “including” are deemed to be followed by “without limitation,” whether or not they are in fact followed by such words or words of like import. Words of one gender shall be held to include the other gender as the context requires. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against DeltaMax, on the one hand, or Elauwit on the other hand, whether under any rule of construction or otherwise. No Party to this Agreement shall be considered the draftsman of this Agreement. On the contrary, the Parties agree that this Agreement has been reviewed, negotiated and accepted by all Parties and shall be construed and interpreted according to the ordinary meaning of the words used herein, so as fairly to accomplish the purposes and intentions of all Parties hereto.
10.7 Costs and Expenses. Except as otherwise provided in this Agreement, (a) all costs and expenses incurred by DeltaMax in connection with this Agreement shall be paid by DeltaMax, and (b) all costs and expenses incurred by Elauwit in connection with this Agreement shall be paid by Elauwit, as the case may be.
10.8 Severability. If any term or other provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced, all other provisions of this Agreement shall nevertheless remain in full force and effect.
10.9 Counterparts. This Agreement may be signed electronically and in any number of counterparts, each of which shall be deemed to be an original, with the same effect as if the signatures on each counterpart were upon the same instrument. This Agreement may be executed by facsimile or portable document format (PDF) and any signature delivered by facsimile or PDF shall be deemed an original for all purposes.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement and Plan of Merger intending to be legally bound thereby, as of the date first written above.
| DELTAMAX, INC. | ||
| By: | /s/ Ritesh M. Veera | |
| Ritesh M. Veera, Vice President | ||
| By: | /s/ Larry Glassberg | |
| Larry Glassberg, Vice President | ||
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Barry Rubens | |
| Barry Rubens, CEO | ||
| BARON HUNTER GROUP, LLC | ||
| By: | /s/ Daniel McDonough, Jr. | |
| Daniel McDonough, Jr. Managing Member | ||
| STEELE CREEK PARTNERS | ||
| By: | /s/ Barry Rubens | |
| Barry Rubens, Managing Member | ||
| MINOTAUR NETWORKS, LLC | ||
| By: | /s/ Taylor Jones | |
| Taylor Jones, Managing Member | ||
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Exhibit A
Certificate of Merger
17
Exhibit B
Budget for DeltaMax Capital
18
Schedule 5.2(b)(i)
Capitalization
19
Schedule 5.2(b)(ii)
Subsidiaries
20
Schedule 5.2(c)
Financial Statements
21
Schedule 5.2(d)
Material Contracts
22
Schedule 5.2(i)
Intellectual Property
23
Schedule 5.2(j)
Exceptions to Leasehold Interests
24
Schedule 5.2(k)(i)
Real Property Owned by Elauwit Connection Inc.
25
Schedule 5.2(k)(ii)
Real Property Leases
26
Schedule 5.2(l)
Employee Benefit Plans
27
Schedule 5.2(m)
List of Employees
28
Schedule 5.2(n)
Insurance Policies
29
Exhibit 2.2
CERTIFICATE OF MERGER
Pursuant to Section 251(c) of the Delaware General Corporation Law (the “DGCL”), the undersigned corporation executed the following Certificate of Merger:
1. The name of each constituent corporation is DeltaMax, Inc., a Delaware corporation, and Elauwit Connection, Inc., a Delaware corporation.
2. The Agreement of Merger has been approved, adopted, certified, executed, and acknowledged by each of the constituent corporations in accordance with Section 251 of the DGCL.
3. The name of the surviving corporation is DeltaMax, Inc., a Delaware corporation.
4. The Certificate of Incorporation of the surviving corporation is hereby amended to change the name of the corporation to “Elauwit Connection, Inc.” To accomplish such amendment, paragraph FIRST, which provides the name of the corporation, is hereby deleted in its entirety and restated as:
ARTICLE ONE
The name of the corporation is Elauwit Connection, Inc. (the “Corporation”)
5. The Certificate of Incorporation of the surviving corporation as of immediately prior to the filing of the Certificate of Merger, as amended by this Certificate of Merger, shall be the Certificate of Incorporation of the surviving corporation after the Merger.
6. The merger is to become effective on upon the filing of this Certificate of Merger.
7. The Agreement of Merger is on file at 300 Park Avenue 16th Floor, New York, New York 10022, the place of business of the surviving corporation.
8. A copy of the Agreement of Merger will be furnished by the surviving corporation on request, without cost, to any stockholder of the constituent corporations.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has caused this Certificate of Merger to be signed as of September 13, 2024.
| By: | /s/ Ritesh M. Veera | |
| Ritesh M. Veera, Vice President | ||
| By: | /s/ Larry Glassberg | |
| Larry Glassberg, Vice President | ||
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
ELAUWIT CONNECTION, INC.
Elauwit Connection, Inc., a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “General Corporation Law”).
DOES HEREBY CERTIFY:
FIRST: That the name of this corporation is Elauwit Connection, Inc. The corporation was originally incorporated under the name DeltaMax, Inc. The corporation’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on May 15, 2024.
SECOND: That, pursuant to Sections 228, 242 and 245 of the General Corporation Law, the Board of Directors and the stockholders of this corporation duly adopted resolutions proposing to amend and restate the Certificate of Incorporation of this corporation, declaring said amendment and restatement to be advisable and in the best interests of this corporation.
THIRD, that the Certificate of Incorporation of this corporation be amended and restated in its entirety as follows:
Article One
The name of the corporation is Elauwit Connection, Inc. (the “Corporation”).
Article Two
The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle, Delaware, 19801. The name of its registered agent at such address is The Corporation Trust Company.
Article Three
The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law.
Article Four
SECTION 4.01 Authorized Stock. The total number of shares of capital stock which the Corporation shall have authority to issue is 15,000,000. These shares shall be divided into two classes, with 14,900,000 shares designated as Common Stock, $0.0001 par value per share (the “Common Stock”), and 100,000 shares designated as Preferred Stock, par value $0.0001 per share (the “Preferred Stock”).
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SECTION 4.02 Common Stock. Except as otherwise required by law, as provided in this Amended and Restated Certificate of Incorporation, and as otherwise provided in the resolution or resolutions, if any, adopted by the Board of Directors with respect to any series of the Preferred Stock, the holders of the Common Stock shall exclusively possess all voting power. Each holder of shares of Common Stock shall be entitled to one vote for each share it holds. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the shares of Common Stock representing a majority of the votes represented by all outstanding shares of Common Stock entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law. Subject to the rights of holders of any series of outstanding Preferred Stock, holders of shares of Common Stock shall have equal rights of participation in the dividends and other distributions in cash, stock, or property of the Corporation when, as and if declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor and shall have equal rights to receive the assets and funds of the Corporation available for distribution to stockholders in the event of any liquidation, dissolution, or winding up of the affairs of the Corporation, whether voluntary or involuntary.
SECTION 4.03 Preferred Stock. The Preferred Stock may be issued at any time and from time to time in one or more series. Subject to the provisions of this Amended and Restated Certificate of Incorporation and applicable law, the Board of Directors is authorized to fix from time to time by resolution or resolutions the number of shares constituting any such series of Preferred Stock and the designation thereof, and to determine (and set forth in a certificate of designation filed pursuant to the General Corporation Law) the powers, designations, preferences and relative, participating, optional or other special rights, if any, and the qualifications, limitations or restrictions thereof, if any, of any wholly unissued series of Preferred Stock, including, without limitation, dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including, without limitation, sinking fund provisions), redemption price or prices and liquidation preferences of any such series, or any of the foregoing. Further, the Board of Directors is authorized to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of such series then outstanding) the number of shares of any such series subsequent to the issuance of shares of that series without the separate vote of the holders of the Preferred Stock as a class, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law, subject to the powers, preferences and rights, and the qualifications, limitations and restrictions thereof, stated in this Amended and Restated Certificate of Incorporation or the resolution of the Board of Directors originally fixing the number of shares of such series. If the number of shares of any series of Preferred Stock is so decreased, then the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series.
Article Five
The Corporation is to have perpetual existence.
Article Six
SECTION 6.01 Number. The number of directors that shall constitute the entire Board of Directors shall be determined in the manner prescribed by the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”).
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SECTION 6.02 Classification; Term. Subject to the rights of any holders of any series of Preferred Stock with respect to the election of directors, the directors of the Corporation shall be divided into three classes as nearly equal in number as is practicable, hereby designated Class I, Class II and Class III. The Board of Directors is authorized to assign members of the Board of Directors already in office to such classes. The term of office of the initial Class I directors shall expire upon the election of directors at the first annual meeting of stockholders following the effectiveness of this Amended and Restated Certificate of Incorporation; the term of office of the initial Class II directors shall expire upon the election of directors at the second annual meeting of stockholders following the effectiveness of this Amended and Restated Certificate of Incorporation; and the term of office of the initial Class III directors shall expire upon the election of directors at the third annual meeting of stockholders following the effectiveness of this Amended and Restated Certificate of Incorporation. At each annual meeting of stockholders, commencing with the first annual meeting of stockholders following the effectiveness of this Amended and Restated Certificate of Incorporation, each of the successors elected to replace the directors of a class whose term shall have expired at such annual meeting shall be elected to hold office until the third annual meeting next succeeding his or her election and until his or her respective successor shall have been duly elected and qualified. Subject to the rights of holders of any outstanding series of Preferred Stock with respect to the election of directors, if the number of directors that constitutes the Board of Directors is changed, any newly created directorships or decrease in directorships shall be so apportioned by the Board of Directors among the classes as to make all classes as nearly equal in number as is practicable, provided that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. Notwithstanding the foregoing provisions of this Section 6.02, and subject to the rights of any series of Preferred Stock with respect to the election of directors, each director shall serve until that director’s successor is duly elected and qualified or until such director’s earlier death, disqualification, resignation, retirement or removal. Directors shall be natural persons but need not be stockholders.
SECTION 6.03 Rights of Holders of Preferred Stock Relating to Director Elections. Notwithstanding any of the other provisions of this Article Six, whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately by series, to elect directors at an annual or special meeting of stockholders, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of the certificate of designation for such series of Preferred Stock, and such directors so elected shall not be divided into classes pursuant to this Article Six unless expressly provided by such terms. During any period when the holders of any series of Preferred Stock have the right to elect additional directors as provided for or fixed pursuant to the provisions of this Article Six, then upon commencement and for the duration of the period during which such right continues; (a) the then otherwise total authorized number of directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to such provisions, and (b) each such additional director shall serve until such director’s successor shall have been duly elected and qualified, or until such director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to such director’s earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board of Directors in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such series of stock, the terms of office of all such additional directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation or removal of such additional directors, shall forthwith terminate, and the total authorized number of directors of the Corporation shall be reduced accordingly.
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SECTION 6.04 Removal. Subject to the rights of holders of any series of Preferred Stock with respect to the election of directors, a director may be removed from office by the stockholders of the Corporation only for cause.
SECTION 6.05 Vacancies and Newly Created Directorships. Subject to the rights and preferences of holders of any series of outstanding Preferred Stock with respect to the election of directors, if the office of any director or directors becomes vacant by reason of death, disqualification, resignation, retirement, removal from office, or otherwise, or a new directorship is created, the majority of the directors then in office although less than a quorum, may appoint a director to fill the vacancy. A director so appointed shall hold office for the unexpired term or until the director’s successor is elected and qualified.
Article Seven
In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation is expressly authorized to make, alter or repeal the Bylaws of the Corporation.
Article Eight
Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation. Election of directors need not be by written ballot unless the Bylaws of the Corporation so provide.
Article Nine
To the fullest extent permitted by the General Corporation Law as the same exists or may hereafter be amended, a director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director. Any repeal or modification of this Article Nine shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
Article Ten
The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law.
Article Eleven
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation in the manner now or hereafter prescribed herein and by the laws of the State of Delaware, and all rights conferred upon stockholders herein are granted subject to this reservation.
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Article Twelve
Each person who was or is a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or who is or was serving at the request of the Corporation as a director, manager, officer, trustee, employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust, nonprofit entity or other enterprise, including service with respect to employee benefit plans (an “indemnitee”), whether the basis of the proceeding is alleged action in an official capacity as a director, manager, officer, trustee, employee or agent or in any other capacity while serving as a director, manager, officer, trustee, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the General Corporation Law, as the same now or may hereafter exist (but, in the case of any change, only to the extent that such change authorizes the Corporation to provide broader indemnification rights than the law permitted the Corporation to provide prior to such change) against all expenses, liabilities and losses (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by the indemnitee in connection therewith and such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. The Corporation shall be required to indemnify a person in connection with a proceeding (or part thereof) initiated by such person, only if the proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this Article Twelve shall not be exclusive of any other right which any indemnitee may have or hereafter acquire under any statute, certificate of incorporation, bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. In any suit brought by the indemnitee to enforce a right to indemnification hereunder or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article Twelve or otherwise shall be on the Corporation. Any amendment, modification or repeal of any provision of this Article Twelve, whether by the stockholders or Board of Directors of the Corporation, shall not adversely affect any right or protection of an indemnitee in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.
Article Thirteen
To the maximum extent permitted from time to time under the law of the State of Delaware, the Corporation renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to its officers, directors or stockholders, other than those officers, directors or stockholders who are also employees of the Corporation. No amendment or repeal of this Article Thirteen shall apply to or have any effect on the liability or alleged liability of any officer, director or stockholder of the Corporation for or with respect to any opportunities of which such officer, director or stockholder becomes aware prior to such amendment or repeal.
Article Fourteen
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director or officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the General Corporation Law or the Corporation’s Amended and Restated Certificate of Incorporation or Bylaws or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine. Notwithstanding the foregoing, (i) the provisions of this Article Fourteen will not apply to suits brought to enforce a duty or liability created by the Securities Exchange Act of 1934, as amended, or the rules and regulations thereunder or any other claim for which the federal courts have exclusive jurisdiction, and (ii) unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery and the federal district courts of the United States of America shall, to the fullest extent permitted by law, have concurrent jurisdiction for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, or the rules and regulations thereunder. Any person or entity purchasing or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to the provisions of this Article Fourteen.
* * * * * *
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be executed on this 11th day of August, 2025.
| /s/ Barry Rubens | |
| Barry Rubens | |
| Chief Executive Officer |
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
ELAUWIT CONNECTION, INC.
ARTICLE I
NAME AND OFFICES
1.1 Corporate Name. The corporation’s official name shall be Elauwit Connection, Inc. (the “Corporation”) In addition, the Corporation shall have the right to operate under such other names as it may receive authorization to use pursuant to applicable law and as are approved by the Board of Directors of the Corporation (the “Board of Directors”).
1.2 Registered Office. The registered office of the Corporation shall be maintained in the State of Delaware.
1.3 Principal Executive Office. The principal executive office of the Corporation shall be maintained within or without the State of Delaware. The Corporation may maintain offices at such other places as the Board of Directors may from time to time determine or as may be necessary or convenient for the business of the Corporation.
ARTICLE II
STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place (if any) within or without the State of Delaware, on such date, and at such time as shall be determined by the Board of Directors and stated in the notice of the meeting. In lieu of holding an annual meeting of stockholders at a designated place, the Board of Directors may, in its sole discretion, determine that any annual meetings of stockholders may be held solely by means of remote communication in accordance with Section 2.12.
2.2 Special Meetings.
(a) Purpose. Special meetings of stockholders, for any purpose or purposes prescribed in the notice of the meeting, unless otherwise prescribed by applicable law (meaning, here and hereinafter, the General Corporation Law of the State of Delaware (“DGCL”)) or the Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), may be called by:
| (i) | the Board of Directors (or by a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers and authority, as expressly provided in a resolution of the Board of Directors, include the power to call such meetings), the Board Chair (as defined in Section 3.6) or the Chief Executive Officer (the “CEO”) and shall be held at such place (if any) within or without the State of Delaware, on such date, and at such time as they shall fix. In lieu of holding a special meeting of stockholders at a designated place, the Board of Directors may, in its sole discretion, determine that any special meetings of stockholders may be held solely by means of remote communication in accordance with Section 2.11. |
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| (ii) | the Secretary (as defined in Section 4.8) upon the written request of stockholders owning at least 50% of the number of shares of the Corporation issued and outstanding and entitled to vote. |
(b) Request to Secretary. A request to the Secretary shall be delivered to the Secretary at the Corporation’s principal executive offices and signed by each stockholder, or a duly authorized agent of such stockholder, requesting the special meeting and shall set forth:
| (i) | a brief description of each matter of business desired to be brought before the special meeting; |
| (ii) | the reasons for conducting such business at the special meeting; |
| (iii) | the text of any proposal or business to be considered at the special meeting (including the text of any resolutions proposed to be considered and in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment); and |
| (iv) | the information required by Section 2.13. |
(c) Business. Business transacted at a special meeting requested by stockholders shall be limited to the matters described in the special meeting request; provided, however, that nothing herein shall prohibit the Board of Directors from submitting matters to the stockholders at any special meeting requested by stockholders.
(d) Time and Date. A special meeting requested by stockholders shall be held at such date and time as may be fixed by the Board of Directors; provided, however, that the date of any such special meeting shall be not more than 90 days after the request to call the special meeting is received by the Secretary. Notwithstanding the foregoing, a special meeting requested by stockholders shall not be held if:
| (i) | the Board of Directors has called or calls for a meeting of the stockholders to be held within 90 days after the Secretary receives the request for the special meeting and the Board of Directors determines in good faith that the business of such meeting includes (among any other matters properly brought before the meeting) the business specified in the request; |
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| (ii) | the stated business to be brought before the special meeting is not a proper subject for stockholder action under applicable law; |
| (iii) | an identical or substantially similar item (a “Similar Item”) was presented at any meeting of stockholders held within 120 days prior to the receipt by the Secretary of the request for the special meeting (and, for purposes of this Section 2.2(d)(iii), the election of directors shall be deemed a Similar Item with respect to all items of business involving the election or removal of directors); or |
| (iv) | the special meeting request was made in a manner that involved a violation of Regulation 14A under the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the “Exchange Act”). |
(e) Revocation. A stockholder may revoke a request for a special meeting at any time by written revocation delivered to the Secretary at the Corporation’s principal executive offices, and if, following such revocation, there are unrevoked requests from stockholders holding in the aggregate less than the requisite number of shares entitling the stockholders to request the calling of a special meeting, the Board of Directors, in its discretion, may cancel the special meeting.
2.3 Notice of Meetings. The Corporation shall give notice of any annual or special meeting of stockholders. Notices of meetings of the stockholders shall state the place (if any), date and hour of the meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting. In the case of a special meeting, the notice shall state the purpose or purposes for which the meeting is called. No business other than that specified in the notice shall be transacted at any special meeting. Unless otherwise provided by law, notice shall be given to each stockholder entitled to vote at such meeting not fewer than 10 days or more than 60 days before the date of the meeting.
2.4 Quorum. At least one-third of the shares entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided by law or these Bylaws. Where a separate vote by a class or series is required, at least one-third of the shares of such class or series, present in person or represented by proxy and entitled to vote on that matter, shall constitute a quorum with respect to that vote on that matter. If a quorum shall not be present or represented at any meeting of stockholders, then the chair of the meeting or a majority of the shares present in person or represented by proxy at the meeting and entitled to vote, shall have the power to adjourn the meeting from time to time, without notice (except as required by law or these Bylaws) until a quorum shall again be present or represented by proxy. A quorum, once established, shall not be broken by the subsequent withdrawal of enough votes to leave less than a quorum.
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2.5 Adjourned Meetings. Any meeting of stockholders, annual or special, may be adjourned from time to time to reconvene at the same or some other place (if any), at another date and time. When a meeting is adjourned to another time and place, if any, unless otherwise provided by these Bylaws, notice need not be given of the adjourned meeting if the place (if any), date and time, thereof and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, are provided in accordance with applicable law. At the adjourned meeting, the stockholders may transact any business that might have been transacted at the original meeting. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. If an adjournment is for more than 30 days or, if after an adjournment, a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
2.6 Stockholders’ List. At least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order for each class or series of stock and showing the address of each stockholder and the number of shares registered in the name of each stockholder, shall be prepared by the Secretary. The list shall be reasonably accessible and open to the examination of any stockholder or such stockholder’s proxy, for any purpose germane to the meeting, for a period of at least 10 days, ending on the day before the meeting date, either: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list was provided with the notice of the meeting, or (b) during ordinary business hours at the principal place of business of the Corporation. The list shall presumptively determine the identity of the stockholders entitled to examine the stock ledger and the list of stockholders entitled to vote at the meeting and the number of shares held by each stockholder.
2.7 Conduct of Meetings. The Board Chair, or in their absence or inability to act, the Board Chair’s designee, shall call to order any meeting of stockholders and shall preside over and act as chair of the meeting. The Secretary of the Board of Directors shall act as secretary of any meetings of stockholders and keep the minutes thereof. In the absence of the Secretary, the secretary of the meeting shall be such person as the chair of the meeting appoints. Except to the extent inconsistent with rules and regulations adopted by the Board of Directors, the chair of the meeting of stockholders shall have the right and authority to prescribe any rules, regulations or procedures and to do all such acts as, in the judgment of the chair of the meeting, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chair of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (c) rules and procedures for maintaining order at the meeting and the safety of those present; (d) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chair of the meeting shall determine; (e) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (f) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the chair of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
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2.8 Voting; Proxies.
(a) General. Unless otherwise required by law or provided in the Certificate of Incorporation, each stockholder shall be entitled to one vote, in person or by proxy, for each share of stock having voting power registered in the stockholder’s name on the books of the Corporation.
(b) Election of Directors. Unless otherwise required by law, the Certificate of Incorporation, or these Bylaws, the election of directors shall be decided by a plurality of the votes cast.
(c) Other Matters. Unless otherwise required by law, the Certificate of Incorporation, or these Bylaws, any matter, other than the election of directors, brought before any meeting of stockholders at which a quorum is present, shall be decided by a majority of votes cast on the matter.
(d) Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. The authorization of a person to act as proxy may be documented, signed, and delivered in accordance with Section 116 of the DGCL, provided that such authorization shall set forth, or be delivered with, information enabling the corporation to determine the identity of the stockholder granting such authorization. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary a revocation of the proxy or a new proxy bearing a later date. Any stockholder soliciting proxies from any other stockholders must use a proxy card color other than white, which shall be reserved for the exclusive use by the Board of Directors.
2.9 Inspectors at Meetings of Stockholders. The Board of Directors may, and to the extent required by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors, who may be employees of the Corporation, to act at the meeting and make a written report thereof, including each vote taken. The Board of Directors may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the chair of the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before acting at the meeting, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of their ability. No person who is a candidate for office at an election may serve as an inspector at such election. The inspector or inspectors may appoint or retain other persons or entities to assist the inspector or inspectors in the performance of their duties. Every vote taken by ballot shall be counted by an inspector or inspectors.
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2.10 Consent of Stockholders in Lieu of Meeting. Unless otherwise restricted by the DGCL or the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested.
No written consent shall be effective to take the corporate action referred to therein, unless, within 60 days of the date the earliest dated consent is delivered to the Corporation, a written consent or consents signed by holders of a sufficient number of shares to take action are delivered to the Corporation in the manner prescribed in the first paragraph of this Section.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent of stockholders shall be given to those stockholders who have not consented in writing.
2.11 Remote Communication. If authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of Directors may adopt, stockholders and proxyholders may, by means of remote communication:
(a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication; provided, however, that (i) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.
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2.12 Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or to receive payment of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock or other securities of the Corporation or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted and which record date shall not be more than 60 nor less than 10 days before the date of any meeting of stockholders, nor more than 60 days prior to the time for such other action. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining holders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directors adopts a resolution taking such action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the determination of stockholders entitled to notice of or to vote at the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall be not more than 10 days after the date upon which the resolution fixing the record date is adopted. If no record date has been fixed by the Board of Directors and no prior action by the Board of Directors is required by law, the record date shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by Section 2.10. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law with respect to the proposed action by written consent of the stockholders, the record date for determining stockholders entitled to consent to corporate action in writing shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
2.13 Advance Notice of Stockholder Nominations and Proposals.
(a) Annual Meetings. At a meeting of the stockholders, only such nominations of persons for the election of directors and such other business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, nominations or such other business must be:
| (i) | specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors or any committee thereof; |
| (ii) | otherwise properly brought before the meeting by or at the direction of the Board of Directors or any committee thereof; or |
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| (iii) | otherwise properly brought before an annual meeting by a stockholder who is a stockholder of record of the Corporation at the time such notice of meeting is delivered and at the time of the annual meeting of stockholders, who is entitled to vote at the meeting, and who complies with the notice procedures set forth in this Section 2.13. |
In addition, any proposal of business (other than the nomination of persons for election to the Board of Directors) must be a proper matter for stockholder action. For business (including, but not limited to, director nominations) to be properly brought before an annual meeting by a stockholder pursuant to Section 2.13(a)(iii), the stockholder or stockholders of record intending to propose the business (the “Proposing Stockholder”) must have given timely notice thereof pursuant to this Section 2.13(a), in writing to the Secretary even if such matter is already the subject of any notice to the stockholders or Public Disclosure from the Board of Directors. To be timely, a Proposing Stockholder’s notice for an annual meeting must be delivered to the Secretary at the principal executive offices of the Corporation: (x) not later than the close of business on the 90th day, nor earlier than the close of business on the 120th day, in advance of the anniversary of the previous year’s annual meeting if such meeting is to be held on a day which is not more than 30 days in advance of the anniversary of the previous year’s annual meeting or not later than 60 days after the anniversary of the previous year’s annual meeting; and (y) with respect to any other annual meeting of stockholders, including in the event that no annual meeting was held in the previous year, not earlier than the close of business on the 120th day prior to the annual meeting and not later than the close of business on the later of: (1) the 90th day prior to the annual meeting and (2) the close of business on the 10th day following the first date of Public Disclosure of the date of such meeting. In no event shall the Public Disclosure of an adjournment or postponement of an annual meeting commence a new notice time period (or extend any notice time period). For the purposes of this Section 2.13, “Public Disclosure” shall mean a disclosure made in a press release reported by a national news service or in a document filed or furnished by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act. The number of nominees a Proposing Stockholder may nominate for election at an annual meeting (or in the case of a Proposing Stockholder giving the notice on behalf of a beneficial owner, the number of nominees a Proposing Stockholder may nominate for election at the annual meeting on behalf of the beneficial owner) shall not exceed the number of directors to be elected by stockholders generally at such annual meeting.
(b) Stockholder Nominations. For the nomination of any person or persons for election to the Board of Directors pursuant to Section 2.13(a)(iii) or Section 2.13(d), a Proposing Stockholder’s timely notice to the Secretary (in accordance with the time periods for delivery of timely notice as set forth in this Section 2.13) shall set forth or include:
| (i) | the name, age, business address, and residence address of each nominee proposed in such notice; |
| (ii) | the principal occupation or employment of each such nominee; |
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| (iii) | the class and number of shares of capital stock of the Corporation which are owned of record and beneficially by each such nominee (if any); |
| (iv) | such other information concerning each such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election of such nominee as a director in an election contest (even if an election contest is not involved) or that is otherwise required to be disclosed, under Section 14(a) of the Exchange Act; |
| (v) | a written questionnaire with respect to the background and qualification of such proposed nominee (which questionnaire shall be provided by the Secretary upon written request) and a written statement and agreement executed by each such nominee acknowledging that such person: |
| A. | consents to being named in the Corporation’s proxy statement as a nominee and to serving as a director if elected; |
| B. | intends to serve as a director for the full term for which such person is standing for election; and |
| C. | makes the following representations: (1) that the director nominee has read and agrees to adhere to the Corporation’s Code of Business Conduct and Ethics, Policy for Related Person Transactions, and any other of the Corporation’s policies or guidelines applicable to directors, including with regard to securities trading, (2) that the director nominee is not and will not become a party to any agreement, arrangement, or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any nomination or other business proposal, issue, or question (a “Voting Commitment”) that has not been disclosed to the Corporation or any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law, and (3) that the director nominee is not and will not become a party to any agreement, arrangement, or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement, or indemnification (“Compensation Arrangement”) that has not been disclosed to the Corporation in connection with such person’s nomination for director or service as a director; and |
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| (vi) | as to the Proposing Stockholder, the beneficial owner, if any on whose behalf the nomination or other business proposal is being made, and if such Proposing Stockholder or beneficial owner is an entity, as to each director, executive, managing member, or control person of such entity (any such individual or control person, a “control person”): |
| A. | the name and address of the Proposing Stockholder as they appear on the Corporation’s books and of the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made; |
| B. | the class and number of shares of the Corporation which are owned as of the date of the Proposing Stockholder's notice by the Proposing Stockholder (beneficially and of record), the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made, and any control person, and a representation that the Proposing Stockholder will notify the Corporation in writing of the class and number of such shares owned of record and beneficially by the Proposing Stockholder, the beneficial owner, and any control person as of the record date for the meeting within five business days after the record date for such meeting; |
| C. | a description of any agreement, arrangement, or understanding with respect to such nomination or other business proposal between or among the Proposing Stockholder, the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made, and any control person; including without limitation (1) any agreements that would be required to be disclosed pursuant to Item 5 or Item 6 of Schedule 13D under the Exchange Act and (2) any plans or proposals which relate to or would result in any action that would be required to be disclosed pursuant to Item 4 of Schedule 13D under the Exchange Act (in each case, regardless of whether the requirement to file a Schedule 13D under the Exchange Act is applicable), and a representation that the Proposing Stockholder will notify the Corporation in writing of any such agreement, arrangement, or understanding in effect as of the record date for the meeting within five business days after the record date for such meeting; |
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| D. | a description of any agreement, arrangement, or understanding (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the Proposing Stockholder's notice by, or on behalf of, the Proposing Stockholder, the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made, and any control person, whether or not such instrument or right shall be subject to settlement in underlying shares of capital stock of the Corporation, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of the Proposing Stockholder, beneficial owner, or any of control person with respect to shares of stock of the Corporation, and a representation that the Proposing Stockholder will notify the Corporation in writing of any such agreement, arrangement, or understanding in effect as of the record date for the meeting within five business days after the record date for such meeting; |
| E. | a representation that the Proposing Stockholder is a holder of record of shares of the Corporation entitled to vote at the meeting and intends to appear in person at the meeting (or a qualified representative thereof intends to appear in person at the meeting) to nominate the person or persons specified in the notice or propose such other business proposal; |
| F. | a representation whether the Proposing Stockholder, the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made, any control person, or any other participant (as defined in Item 4 of Schedule 14A under the Exchange Act) will engage in a solicitation with respect to such nomination or other business proposal and, if so, the name of each participant in such solicitation; and a statement: (1) confirming whether, the stockholder, beneficial owner, or any control person intends, or is part of a group that (x) in the case of a nomination, intends to solicit proxies or votes in support of such director nominees or nomination in accordance with Rule 14a-19 under the Exchange Act, including but not limited to, delivering a proxy statement and form of proxy and soliciting at least the percentage of the voting power of all of the shares of the stock of the Corporation required under applicable law to elect the nominee, and (y) in the case of a business proposal, intends to deliver a proxy statement and form of proxy and solicit at least the percentage of voting power of all of the shares of stock of the Corporation required under applicable law to approve the proposal; and (2) whether or not any such stockholder, beneficial owner, or any control person intends to otherwise solicit proxies from stockholders in support of such nomination or other business proposal; |
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| G. | the names and addresses of other stockholders (including beneficial and record owners and control persons) known by the Proposing Stockholder to support financially the nomination or other business proposal, and to the extent known, the class and number of all shares of the Corporation’s capital stock owned beneficially or of record by such other stockholders (including beneficial and record owners and control persons); and |
| H. | any other information relating to such Proposing Stockholder and beneficial owner, if any, on whose behalf the nomination or other business proposal is being made, and any control person that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the business proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder. |
The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.
(c) Other Stockholder Proposals. For all business other than director nominations, a Proposing Stockholder’s timely notice to the Secretary (in accordance with the time periods for delivery of timely notice as set forth in this Section 2.13) shall set forth as to each matter the Proposing Stockholder proposes to bring before the annual meeting:
| (i) | a brief description of the business desired to be brought before the annual meeting; |
| (ii) | the reasons for conducting such business at the annual meeting; |
| (iii) | the text of any proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment); |
| (iv) | any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such business of such Proposing Stockholder and the beneficial owner (within the meaning of Section 13(d) of the Exchange Act), if any, on whose behalf the business is being proposed, and any control person; |
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| (v) | any other information relating to such Proposing Stockholder, beneficial owner, if any, on whose behalf the proposal is being made, any control person or any other participants (as defined in Item 4 of Schedule 14A under the Exchange Act) required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal and pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; |
| (vi) | a description of all agreements, arrangements, or understandings between or among such stockholder, the beneficial owner, if any, on whose behalf the proposal is being made, and any control person and any other person or persons (including their names) in connection with the proposal of such business and any material interest of such stockholder, beneficial owner, or any control person, in such business, including any anticipated benefit therefrom to such stockholder, beneficial owner, or control person; and |
| (vii) | all of the other information required by Section 2.13(b)(vi) above. |
(d) Special Meetings. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders called by the Board of Directors at which directors are to be elected pursuant to the Corporation’s notice of meeting:
| (i) | by or at the direction of the Board of Directors or any committee thereof; or |
| (ii) | provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 2.13(d) is delivered to the Secretary, who is entitled to vote at the meeting, and upon such election and who complies with the notice procedures set forth in this Section 2.13. |
In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if such stockholder delivers a stockholder’s notice that complies with the requirements of Section 2.13(b) to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the 120th day prior to such special meeting and not later than the close of business on the later of: (x) the 90th day prior to such special meeting; or (y) the 10th day following the date of the first Public Disclosure of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the Public Disclosure of an adjournment or postponement of a special meeting commence a new time period (or extend any notice time period). The number of nominees a stockholder may nominate for election at a special meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the special meeting on behalf of the beneficial owner) shall not exceed the number of directors to be elected by stockholders generally at such special meeting.
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(e) Effect of Noncompliance.
| (i) | Only such persons who are nominated in accordance with the procedures set forth in this Section 2.13 shall be eligible to be elected at any meeting of stockholders of the Corporation to serve as directors and only such other business shall be conducted at a meeting as shall be brought before the meeting in accordance with the procedures set forth in this Section 2.13. The chair of the meeting shall have the power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.13. If any proposed nomination was not made or proposed in compliance with this Section 2.13, or other business was not made or proposed in compliance with this Section 2.13, or if any stockholder, beneficial owner, control person, or any nominee for director acted contrary to any representation or other agreement required by this Section 2.13 (or with any law, rule, or regulation identified therein) or provided false or misleading information to the Corporation, then except as otherwise required by law, the chair of the meeting shall have the power and duty to declare that such nomination shall be disregarded or that such proposed other business shall not be transacted. Notwithstanding anything in these Bylaws to the contrary, unless otherwise required by law, if a Proposing Stockholder intending to propose business or make nominations at an annual meeting or propose a nomination at a special meeting pursuant to this Section 2.13 does not comply with or provide the information required under this Section 2.13 to the Corporation, including the updated information required by Section 2.13(b)(vi)(B), Section 2.13(b)(vi)(C), and Section 2.13(b)(vi)(D) within five business days after the record date for such meeting or the evidence required by Section 2.13(e)(ii) by no later than five business days prior to the applicable meeting or the Proposing Stockholder (or a qualified representative of the Proposing Stockholder) does not appear at the meeting to present the proposed business or nominations, such business or nominations shall not be considered, notwithstanding that proxies in respect of such business or nominations may have been received by the Corporation. |
| (ii) | If any stockholder provides notice pursuant to Rule 14a-19 under the Exchange Act, such stockholder shall deliver to the Corporation, no later than five business days prior to the applicable meeting, reasonable evidence that it has met all of the applicable requirements of Rule 14a-19 under the Exchange Act. Without limiting the other provisions and requirements of this Section 2.13, unless otherwise required by law, if any Proposing Stockholder provides such notice and either (A) fails to comply with the requirements of Rule 14a-19 under the Exchange Act, or (B) fails to timely provide reasonable evidence of such compliance as required by this Section 2.13(e)(ii), then the Proposing Stockholder’s nomination of each such proposed nominee shall be disregarded, notwithstanding that the nominee is included as a nominee in the Corporation's proxy statement, notice of meeting, or other proxy materials for any annual meeting (or any supplement thereto) and the Corporation shall disregard any proxies or votes solicited for such stockholder's nominees. |
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(f) Exchange Act Rule 14a-8. This Section 2.13 shall not apply to a proposal proposed to be made by a stockholder if the stockholder has notified the Corporation of the stockholder’s intention to present the proposal at an annual or special meeting only pursuant to and in compliance with Rule 14a-8 under the Exchange Act and such proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such meeting.
ARTICLE III
DIRECTORS
3.1 General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation and are not by law or these Bylaws directed or required to be exercised or done by the stockholders.
3.2 Number of Directors. The Board of Directors shall consist of the number of directors fixed by the Board of Directors from time to time by resolution of a majority of the total number of directors that the Corporation would have if there were no vacancies.
3.3 Resignations. Any director may resign at any time by notice given in writing or by electronic transmission to the Corporation. Such resignation shall take effect at the date of receipt of such notice by the Corporation or at such later effective date or upon the happening of an event as specified therein.
3.4 Removal. Except as prohibited by applicable law or the Certificate of Incorporation, the stockholders holding a majority of the shares then entitled to vote at an election of directors may remove a director from office only for cause.
3.5 Place of Meetings. The Board of Directors may hold its meetings outside of the State of Delaware, at the office of the Corporation or at such other places (if any) as they may from time to time determine, or as shall be fixed in the respective notices or waivers of notice of such meetings.
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3.6 Board Chair. The Board of Directors may appoint a chair (the “Board Chair”) to oversee meetings of the Board of Directors and to perform such other duties as the Board of Directors may designate.
3.7 Committees of the Board of Directors. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. A committee, to the extent permitted by applicable law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. Unless the resolution, the Certificate of Incorporation or these Bylaws expressly so provides, no committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or other securities. The vote of a majority of the members present at the time of a vote of the committee, if a quorum is present, shall be the act of the committee. Committees may have such names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its proceedings, provide copies of the same to the whole Board of Directors and shall report to the Board of Directors when required or requested. Unless the Board of Directors provides otherwise, each committee designated by the Board of Directors may make, alter and repeal rules and procedures for the conduct of its business. In the absence of such rules and procedures each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to this Article III.
Unless otherwise provided in the resolution of the Board of Directors designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
3.8 Compensation of Directors. Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as directors, including their services as members of committees of the Board of Directors. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
3.9 Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such times and places (if any) as may be determined from time to time by the Board of Directors.
3.10 Special Meetings. Special meetings of the Board of Directors may be held at any time on the call of the Board Chair or at the request in writing of one-fourth (1/4) of the directors then in office (rounded up to the nearest whole number). Notice of any special meeting, unless waived, shall be given pursuant to Section 3.11 not less than 24 hours prior to the day on which such meeting is to be held.
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3.11 Notices. Subject to Section 3.12 hereof, whenever notice is required to be given to any director by applicable law, the Certificate of Incorporation, or these Bylaws, such notice shall be deemed given effectively if given in person or by telephone, mail addressed to such director at such director’s address as it appears on the records of the Corporation, facsimile, email, or by other means of electronic transmission.
3.12 Waiver of Notice. Whenever notice to directors is required by applicable law, the Certificate of Incorporation, or these Bylaws, a waiver thereof, in writing signed by, or by electronic transmission by, the director entitled to the notice, whether before or after such notice is required, shall be deemed equivalent to notice. Attendance by a director at a meeting shall constitute a waiver of notice of such meeting except when the director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting was not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special Board of Directors or committee meeting need be specified in any waiver of notice.
3.13 Action Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting, if a written consent to such action is signed by all members of the Board of Directors or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or committee.
3.14 Quorum. Except as otherwise provided in these Bylaws, a majority of the total number of directors shall constitute a quorum at any meeting of the Board of Directors. Unless a greater proportion is required by the resolution designating the committee of the Board of Directors, a majority of the entire committee shall constitute a quorum for the transaction of business or of any specified item of business. In the absence of a quorum, a majority of the directors present may adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given, except that notice shall be given to all directors if the adjournment is for more than 30 days.
3.15 Conduct of Business. At each meeting of the Board of Directors, the Board Chair or, in the Board Chair’s absence or inability to act, another director or officer selected by the Board of Directors shall preside. The Secretary shall act as secretary at each meeting of the Board of Directors. If the Secretary is absent from any meeting of the Board of Directors, the person presiding at the meeting may appoint any person to act as secretary of the meeting. At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board of Directors may from time to time determine. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the act or vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. Any director may require the “ayes” and “noes” to be taken on any question or vote and recorded in the minutes. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section shall constitute presence in person at such meeting.
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ARTICLE IV
OFFICERS
4.1 Executive Officers. The officers of the Corporation shall be chosen by the Board of Directors and shall include a CEO, a President, a Secretary, a Chief Financial Officer (“CFO”), and a Treasurer. The Board of Directors, in its discretion, may also elect such other officers in accordance with these Bylaws. One person may hold any number of offices.
4.2 Election, Term of Office and Eligibility. The officers of the Corporation shall be elected by the Board of Directors. Each officer shall hold office until the officer’s successor shall have been duly chosen and qualified or until his or her death, resignation or removal. Any officer may be removed by the Board of Directors at any time with or without cause by the majority vote of the members of the Board of Directors then in office. The election or appointment of an officer shall not of itself create contract rights. Any officer of the Corporation may resign at any time by giving notice of their resignation in writing, or by electronic transmission, to the Corporation. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
4.3 The Chief Executive Officer. The CEO shall be the principal executive officer of the Corporation, shall have executive authority to see that all orders and resolutions of the Board of Directors are carried into effect, and, subject to the control vested in the Board of Directors by law or these Bylaws, shall administer and be responsible for the overall management of the business and affairs of the Corporation. The CEO shall perform all duties and have all powers which are commonly incident to such office, including general supervision and direction of all other officers, employees, agents and representatives of the Corporation. The CEO shall from time-to-time report to the Board of Directors all matters within the CEO’s knowledge affecting the Corporation which should be brought to the attention of the Board of Directors. The CEO shall perform such other duties as from time to time may be delegated or assigned by the Board of Directors.
4.4 The President. The President shall perform such duties as may from time to time be delegated or assigned by the Board of Directors or the CEO, and in the absence or disability of the CEO, shall perform the duties of the CEO.
4.5 Vice Presidents. Each Vice President shall have such powers and perform such duties as from time to time may be delegated or assigned by the Board of Directors, the CEO, or the President, or that are incident to the office of vice president.
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4.6 The Secretary. The Secretary shall:
(a) Attend and keep the minutes of the meetings of the stockholders and of the Board of Directors;
(b) See that all notices are duly given in accordance with the provisions of law or these Bylaws;
(c) Be custodian of the records and of the seal of the Corporation and see that, if required, the seal or a facsimile or equivalent thereof is affixed to or reproduced on all documents, the execution of which on behalf of the Corporation under its seal is duly authorized;
(d) Have charge of the stock record books of the Corporation; and
(e) In general, perform all duties incident to the office of Secretary, and such other duties as are provided by these Bylaws and as from time to time are delegated or assigned by the Board of Directors.
4.7 The Chief Financial Officer. The CFO shall be the principal financial officer of the Corporation and shall have such powers and perform such duties as may be assigned by the Board of Directors, the Board Chair, or the CEO.
4.8 Treasurer. The Treasurer shall:
(a) Receive and be responsible for all funds of and securities owned or held by the Corporation and, in connection therewith, among other things: keep or cause to be kept full and accurate financial records and accounts for the Corporation; deposit or cause to be deposited to the credit of the Corporation all moneys, funds and securities so received in such bank or other depositary as the Board of Directors or an officer designated by the Board of Directors may from time to time establish; and disburse or supervise the disbursement of the funds of the Corporation as may be properly authorized;
(b) Render to the Board of Directors at any meeting thereof, or from time to time whenever the Board of Directors or the CEO may require, financial and other appropriate reports on the condition of the Corporation; and
(c) In general, perform all the duties incident to the office of the Treasurer, and such other duties as are provided by these Bylaws and as from time to time are delegated or assigned by the Board of Directors or by the CEO.
4.9 Subordinate Officers. The Board of Directors may appoint such Assistant Secretaries, Assistant Treasurers, Controller and other officers, and such agents or representatives as the Board of Directors may determine, to hold office for such period and with such authority and to perform such duties as the Board of Directors may from time to time determine. The Board of Directors may, by specific resolution, empower the CEO or any committee of the Board of Directors to appoint subordinate officers or agents or representatives.
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4.10 Delegation of Duties. In the absence of any officer of the Corporation or for any other reason deemed sufficient by the Board of Directors, the Board of Directors may, for the time being, delegate any or all of the powers and duties of such officer to any other officer or to any director.
ARTICLE V
SHARES OF STOCK
5.1 Regulation. Subject to the terms of any contract of the Corporation, applicable law and the Certificate of Incorporation, the Board of Directors may make such rules and regulations as it may deem expedient concerning the issue, transfer, conversion and registration of certificates for shares of the stock or other securities of the Corporation, including the issue of new certificates for lost, stolen or destroyed certificates, and including the appointment of transfer agents and registrars.
5.2 Certificates Representing Shares; Uncertificated Shares. The shares of stock of the Corporation shall be represented by certificates; provided that the Board of Directors may provide by resolution or resolutions that some or all of any class or series shall be uncertificated shares that may be evidenced by a book-entry system maintained by the registrar of such stock. If shares are represented by certificates, such certificates shall be in the form, other than bearer form, approved by the Board of Directors. The certificates representing shares of stock shall be signed by, or in the name of, the Corporation by any two authorized officers of the Corporation. Any or all such signatures may be facsimiles. In case any officer, transfer agent, or registrar who has signed such a certificate ceases to be an officer, transfer agent, or registrar before such certificate has been issued, it may nevertheless be issued by the Corporation with the same effect as if the signatory were still such at the date of its issue.
5.3 Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books administered by or on behalf of the Corporation only by the direction of the registered holder thereof or such person’s attorney, lawfully constituted in writing, and, in the case of certificated shares, upon the surrender to the Company or its transfer agent or other designated agent of the certificate thereof, which shall be cancelled before a new certificate or uncertificated shares shall be issued.
5.4 Lost, Stolen or Destroyed Certificate. Any stockholder claiming that a certificate representing shares of stock or other securities of the Corporation has been lost, stolen or destroyed may make an affidavit or affirmation of the fact and, if the Board of Directors so requires, advertise the same in a manner designated by the Board of Directors, and give the Corporation a bond of indemnity in form and with security for an amount satisfactory to the Board of Directors (or an officer designated by the Board of Directors), whereupon a new certificate or uncertificated shares may be issued of the same tenor and representing the same number, class and/or series of shares as were represented by the certificate alleged to have been lost, stolen or destroyed.
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ARTICLE VI
BOOKS AND RECORDS
6.1 Location. The books, accounts and records of the Corporation may be kept at such place or places within or without the State of Delaware as the Board of Directors may from time to time determine.
6.2 Form. The books, accounts and records of the Corporation, including its stock ledger, books of account and minute books, shall be maintained in the regular course of its business and may be kept on, or be in the form of, computer files or any other commonly available information storage device that creates a record that can be retained, retrieved and reviewed and that may be directly reproduced in paper form; provided that the books, accounts and records so kept are readily available and can be easily converted into clearly legible form.
ARTICLE VII
INDEMNIFICATION
7.1 Right to Indemnification. Each person who was or is a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation or who is or was serving at the request of the Corporation as a director, manager, officer, trustee, employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust, nonprofit entity or other enterprise, including service with respect to employee benefit plans (an “indemnitee”), whether the basis of the proceeding is alleged action in an official capacity as a director, manager, officer, trustee, employee or agent or in any other capacity while serving as a director, manager, officer, trustee, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same now or may hereafter exist (but, in the case of any change, only to the extent that such change authorizes the Corporation to provide broader indemnification rights than the law permitted the Corporation to provide prior to such change) against all expenses, liabilities and losses (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by the indemnitee in connection therewith and such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. The Corporation shall be required to indemnify a person in connection with a proceeding (or part thereof) initiated by such person, only if the proceeding (or part thereof) was authorized by the Board of Directors.
7.2 Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 7.1, an indemnitee shall also have the right to be paid by the Corporation the expenses (including reasonable attorneys’ fees) incurred in defending any such proceeding in advance of its final disposition (an “advancement of expenses”); provided, however, that, if the DGCL requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (an “undertaking”) by or on behalf of such indemnitee, to repay all amounts so advanced, if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (a “final adjudication”) that such indemnitee is not entitled to be indemnified for expenses under this Section or otherwise. The rights to indemnification and to the advancement of expenses conferred in Sections 7.1 and 7.2 shall be contract rights, and such rights shall continue as to an indemnitee who has ceased to be a director, manager, officer, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.
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7.3 Right of Indemnitee to Bring Suit. If a claim under Section 7.1 and 7.2 is not paid in full by the Corporation within 60 days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including directors who are not parties to such action, a committee of such directors, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances, because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including directors who are not parties to such action, a committee of such directors, independent legal counsel or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VII or otherwise shall be on the Corporation.
7.4 Non-Exclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article VII shall not be exclusive of any other right which any indemnitee may have or hereafter acquire under any statute, certificate of incorporation, bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees, or agents respecting indemnification and advances, to the fullest extent not prohibited by the DGCL.
7.5 Other Indemnification. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, manger, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust, nonprofit entity or other enterprise shall be reduced by any amount such person may collect as indemnification from such other entity or enterprise.
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7.6 Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, agent or representative of the Corporation or another corporation, limited liability company, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
7.7 Witness Expenses. To the extent that any director, officer, employee, agent or representative of the Corporation is by reason of such position, or a position with another entity or enterprise at the request of the Corporation, a witness or a deponent in any proceeding, such person shall be reimbursed for all expenses actually and reasonably incurred by such person or on their behalf in connection therewith.
7.8 Indemnification of Employees, Agents and Representatives. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee, agent or representative of the Corporation to the fullest extent of the provisions of this Article VII with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
7.9 No Adverse Changes. Any amendment, modification or repeal of any provision of this Article VII, whether by the stockholders or Board of Directors, shall not adversely affect any right or protection of an indemnitee in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.
ARTICLE VIII
NOTICE
8.1 Notices. Except as otherwise required by law, all notices required to be given to the Corporation or to any stockholder, director, officer, employee or agent shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mails, postage paid, or by sending such notice by electronic transmission or by receipted overnight delivery service. Any such notice shall be addressed to the last known address of such person as the same appears on the books of the Corporation. The time of the giving of the notice shall be the time when such notice is received, if hand delivered, or dispatched, if delivered through the mails or by electronic transmission or by receipted overnight delivery service.
8.2 Waiver of Notice. Whenever any notice is required to be given under provision of law or these Bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein or before or after the meeting is held, shall be deemed equivalent to notice. If a waiver is given by electronic transmission, the electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice or any waiver by electronic transmission.
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8.3 Notice By Electronic Transmission.
(a) Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under law or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked, if (i) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (ii) such inability becomes known to the Secretary or an Assistant Secretary or to the transfer agent, or other person responsible for the giving of notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
(b) Notice to stockholders may be given by writing in paper form or solely in the form of electronic transmission as permitted by this subsection (b). If given by writing in paper form, notice may be delivered personally, may be delivered by mail, or, with the consent of the stockholder entitled to receive notice, may be delivered by facsimile telecommunication or any of the other means of electronic transmission specified in this subsection (b). If mailed, such notice shall be delivered by postage prepaid envelope directed to each stockholder at such stockholder’s address as it appears in the records of the Corporation. Any notice to stockholders given by the Corporation shall be effective if delivered or given by a form of electronic transmission to which the stockholder to whom the notice is given has consented. Notice given pursuant to this subsection shall be deemed given: (i) if by facsimile telecommunication, when directed to a facsimile telecommunication number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder. An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the Corporation that the notice has been given by personal delivery, by mail, or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
(c) For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by the recipient through an automated process.
(d) The provisions of this Section shall not apply to notices required under Sections 164, 296, 311, 312 or 324 of the DGCL.
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8.4 Notice To Stockholders Sharing An Address. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under or these Bylaws shall be effective if given by a single written notice to stockholders who share an address, if consented to by the stockholders at that address to whom such notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any stockholder who fails to object in writing to the Corporation, within 60 days of having been given written notice by the Corporation of its intention to send the single notice permitted under this Section, shall be deemed to have consented to receiving such single written notice. The provisions of this Section shall not apply to notices required under Sections 164, 296, 311, 312 or 324 of the DGCL.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Seal. The seal of the Corporation shall be in such form as shall be approved by the Board of Directors. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise, as may be prescribed by law or custom or by the Board of Directors.
9.2 Fiscal Year. The fiscal year of the Corporation shall be as fixed by the Board of Directors, but shall initially end on December 31 of each year.
9.3 Electronic Signatures. In addition to the provisions for use of signatures by electronic transmission elsewhere specifically authorized in these Bylaws, signatures by electronic transmission of any officer of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof, subject to applicable law.
9.4 Checks, Notes, Drafts, Etc. All checks, notes, drafts, or other orders for the payment of money of the Corporation shall be signed, endorsed, or accepted in the name of the Corporation by such officer, officers, person, or persons as from time to time may be designated by the Board of Directors or by an officer or officers authorized by the Board of Directors to make such designation.
9.5 Securities in Other Corporations. Any shares of stock or other securities in any corporation or other entity, which may from time to time be held by this Corporation, may be represented and voted at any meeting of security holders of such entity or otherwise, and any and all rights and powers which the Corporation may possess by reason of its ownership of such securities may be exercised, by the Board Chair or the CEO, or the President, or by any other person authorized by the Board of Directors, or by any proxy designated by written instrument of appointment executed in the name of this Corporation by the Board Chair, the CEO, or the President. Securities belonging to the Corporation need not stand in the name of the Corporation, but may be held for the benefit of the Corporation in the individual name of the Treasurer or of any other nominee designated for the purpose by the Board of Directors. Certificates for securities held for the benefit of the Corporation shall be endorsed in blank or have proper stock or other transfer powers attached, so that the securities and any certificate evidencing the same are at all times in due form for transfer, and shall be held for safekeeping in such manner as shall be determined from time to time by the Board of Directors.
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9.6 Time Periods. In applying any provision of these Bylaws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.
9.7 Amendment of Bylaws. Subject to applicable law and the Certificate of Incorporation, the stockholders, by the affirmative vote of the holders of a majority of the stock issued and outstanding and having voting power, may adopt, amend or repeal any provision of these Bylaws at any meeting of stockholders, if the notice of such meeting lists amendment, modification or repeal among the purposes of the meeting and sets forth the amendment, modification or repeal to be voted upon at the meeting. Any amendment, modification or repeal of any provision of these Bylaws made by the stockholders shall not be amended, modified or repealed by the Board of Directors.
The Board of Directors, by the affirmative vote of a majority of the whole Board of Directors, may adopt, amend or repeal any provision of these Bylaws at any meeting, except as provided in the above paragraph. Any amendment, modification or repeal of any provision of these Bylaws made by the Board of Directors may be amended, modified or repealed by the stockholders.
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Exhibit 4.1
THIS INSTRUMENT AND ANY SECURITIES ISSUABLE PURSUANT HERETO HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED IN THIS SAFE AND UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM.
ELAUWIT CONNECTION, INC.
SAFE
(Simple Agreement for Future Equity)
THIS CERTIFIES THAT in exchange for the payment by ____________________ (the “Investor”) of $_____________ (the “Purchase Amount”) on or about _________________________________, 2025, Elauwit Connection, Inc., a Delaware corporation (the “Company”), issues to the Investor the right to certain shares of the Company’s Capital Stock, subject to the terms described below.
The “Discount Rate” is 85%.
See Section 2 for certain additional defined terms.
1. Events
(a) Equity Financing. If there is an Equity Financing before the termination of this Safe, on the initial closing of such Equity Financing, this Safe will automatically convert into the number of shares of Safe Common Stock equal to the Purchase Amount divided by the Discount Price.
In connection with the automatic conversion of this Safe into shares of Safe Common Stock, the Investor will execute and deliver to the Company all of the transaction documents related to the Equity Financing; provided, that such documents (i) are the same documents to be entered into with the purchasers of Class A Common Stock, with appropriate variations for the Safe Common Stock if applicable, and (ii) have customary exceptions to any drag-along applicable to the Investor, including (without limitation) limited representations, warranties, liability and indemnification obligations for the Investor.
(b) Liquidity Event. If there is a Liquidity Event before the termination of this Safe, the Investor will automatically be entitled (subject to the liquidation priority set forth in Section 1(d) below) to receive a portion of Proceeds, due and payable to the Investor immediately prior to, or concurrent with, the consummation of such Liquidity Event, equal to the greater of (i) the Purchase Amount (the “Cash-Out Amount”) or (ii) the amount payable on the number of shares of Common Stock equal to the Purchase Amount divided by the Liquidity Price (the “Conversion Amount”). If any of the Company’s securityholders are given a choice as to the form and amount of Proceeds to be received in a Liquidity Event, the Investor will be given the same choice, provided that the Investor may not choose to receive a form of consideration that the Investor would be ineligible to receive as a result of the Investor’s failure to satisfy any requirement or limitation generally applicable to the Company’s securityholders, or under any applicable laws.
Notwithstanding the foregoing, in connection with a Change of Control intended to qualify as a tax-free reorganization, the Company may reduce the cash portion of Proceeds payable to the Investor by the amount determined by its board of directors in good faith for such Change of Control to qualify as a tax-free reorganization for U.S. federal income tax purposes, provided that such reduction (A) does not reduce the total Proceeds payable to such Investor and (B) is applied in the same manner and on a pro rata basis to all securityholders who have equal priority to the Investor under Section 1(d).
(c) Dissolution Event. If there is a Dissolution Event before the termination of this Safe, the Investor will automatically be entitled (subject to the liquidation priority set forth in Section 1(d) below) to receive a portion of Proceeds equal to the Cash-Out Amount, due and payable to the Investor immediately prior to the consummation of the Dissolution Event.
(d) Liquidation Priority. In a Liquidity Event or Dissolution Event, this Safe is intended to operate like standard Class A Common Stock. The Investor’s right to receive its Cash-Out Amount is:
(i) Junior to payment of outstanding indebtedness and creditor claims, including contractual claims for payment and convertible promissory notes (to the extent such convertible promissory notes are not actually or notionally converted into Capital Stock);
(ii) On par with payments for other Safes and/or Class A Common Stock, and if the applicable Proceeds are insufficient to permit full payments to the Investor and such other Safes and/or Class A Common Stock, the applicable Proceeds will be distributed pro rata to the Investor and such other Safes and/or Common Stock in proportion to the full payments that would otherwise be due; and
The Investor’s right to receive its Conversion Amount is (A) on par with payments for Common Stock and other Safes who are also receiving Conversion Amounts or Proceeds on a similar as-converted to Common Stock basis, and (B) junior to payments described in clauses (i) and (ii) above (in the latter case, to the extent such payments are Cash-Out Amounts or similar liquidation preferences).
(e) Termination. This Safe will automatically terminate (without relieving the Company of any obligations arising from a prior breach of or non-compliance with this Safe) immediately following the earliest to occur of: (i) the issuance of Capital Stock to the Investor pursuant to the automatic conversion of this Safe under Section 1(a); or (ii) the payment, or setting aside for payment, of amounts due the Investor pursuant to Section 1(b) or Section 1(c).
2. Definitions
“Capital Stock” means the capital stock of the Company, including, without limitation, the “Class A Common Stock” and the “Class B Common Stock.”
“Change of Control” means (i) a transaction or series of related transactions in which any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of more than 50% of the outstanding voting securities of the Company having the right to vote for the election of members of the Company’s board of directors, (ii) any reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in which the holders of the voting securities of the Company outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Company or such other surviving or resulting entity or (iii) a sale, lease or other disposition of all or substantially all of the assets of the Company.
“Class A Common Stock” means the shares of Class A Common Stock issued to the investors investing new money in the Company in connection with the initial closing of the Equity Financing.
“Direct Listing” means the Company’s initial listing of its Common Stock (other than shares of Common Stock not eligible for resale under Rule 144 under the Securities Act) on a national securities exchange by means of an effective registration statement on Form S-1 filed by the Company with the SEC that registers shares of existing capital stock of the Company for resale, as approved by the Company’s board of directors. For the avoidance of doubt, a Direct Listing will not be deemed to be an underwritten offering and will not involve any underwriting services.
“Discount Price” means the lowest price per share of the Class A Common Stock sold in the Equity Financing multiplied by the Discount Rate.
“Dissolution Event” means (i) a voluntary termination of operations, (ii) a general assignment for the benefit of the Company’s creditors or (iii) any other liquidation, dissolution or winding up of the Company (excluding a Liquidity Event), whether voluntary or involuntary.
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“Dividend Amount” means, with respect to any date on which the Company pays a dividend on its outstanding Common Stock, the amount of such dividend that is paid per share of Common Stock multiplied by (x) the Purchase Amount divided by (y) the Liquidity Price (treating the dividend date as a Liquidity Event solely for purposes of calculating such Liquidity Price).
“Equity Financing” means a bona fide transaction or series of transactions with the principal purpose of raising capital, pursuant to which the Company issues and sells Common Stock at a fixed valuation, including but not limited to, a pre-money or post-money valuation.
“Initial Public Offering” means the closing of the Company’s first firm commitment underwritten initial public offering of Common Stock pursuant to a registration statement filed under the Securities Act.
“Liquidity Event” means a Change of Control, a Direct Listing or an Initial Public Offering.
“Liquidity Price” means the price per share equal to the fair market value of the Common Stock at the time of the Liquidity Event, as determined by reference to the purchase price payable in connection with such Liquidity Event, multiplied by the Discount Rate.
“Proceeds” means cash and other assets (including without limitation stock consideration) that are proceeds from the Liquidity Event or the Dissolution Event, as applicable, and legally available for distribution.
“Safe” means an instrument containing a future right to shares of Capital Stock, similar in form and content to this instrument, purchased by investors for the purpose of funding the Company’s business operations. References to “this Safe” mean this specific instrument.
“Safe Common Stock” means the shares of Common Stock issued to the Investor in an Equity Financing, having the identical rights, privileges, preferences, seniority, liquidation multiple and restrictions as the shares of Class A Common Stock, except that any price-based preferences (such as the per share liquidation amount, initial conversion price and per share dividend amount) will be based on the Discount Price.
3. Company Representations
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation, and has the power and authority to own, lease and operate its properties and carry on its business as now conducted.
(b) The execution, delivery and performance by the Company of this Safe is within the power of the Company and has been duly authorized by all necessary actions on the part of the Company (subject to section 3(d)). This Safe constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity. To its knowledge, the Company is not in violation of (i) its current certificate of incorporation or bylaws, (ii) any material statute, rule or regulation applicable to the Company or (iii) any material debt or contract to which the Company is a party or by which it is bound, where, in each case, such violation or default, individually, or together with all such violations or defaults, could reasonably be expected to have a material adverse effect on the Company.
(c) The performance and consummation of the transactions contemplated by this Safe do not and will not: (i) violate any material judgment, statute, rule or regulation applicable to the Company; (ii) result in the acceleration of any material debt or contract to which the Company is a party or by which it is bound; or (iii) result in the creation or imposition of any lien on any property, asset or revenue of the Company or the suspension, forfeiture, or nonrenewal of any material permit, license or authorization applicable to the Company, its business or operations.
(d) No consents or approvals are required in connection with the performance of this Safe, other than: (i) the Company’s corporate approvals; (ii) any qualifications or filings under applicable securities laws; and (iii) necessary corporate approvals for the authorization of Capital Stock issuable pursuant to Section 1.
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(e) To its knowledge, the Company owns or possesses (or can obtain on commercially reasonable terms) sufficient legal rights to all patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, processes and other intellectual property rights necessary for its business as now conducted and as currently proposed to be conducted, without any conflict with, or infringement of the rights of, others.
4. Investor Representations
(a) The Investor has full legal capacity, power and authority to execute and deliver this Safe and to perform its obligations hereunder. This Safe constitutes a valid and binding obligation of the Investor, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
(b) The Investor is an accredited investor as such term is defined in Rule 501 of Regulation D under the Securities Act, and acknowledges and agrees that if not an accredited investor at the time of an Equity Financing, the Company may void this Safe and return the Purchase Amount. The Investor has been advised that this Safe and the underlying securities have not been registered under the Securities Act, or any state securities laws and, therefore, cannot be resold unless they are registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. The Investor is purchasing this Safe and the securities to be acquired by the Investor hereunder for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. The Investor has such knowledge and experience in financial and business matters that the Investor is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment without impairing the Investor’s financial condition and is able to bear the economic risk of such investment for an indefinite period of time.
5. Miscellaneous
(a) Any provision of this Safe may be amended, waived or modified by written consent of the Company and either (i) the Investor or (ii) the majority-in-interest of all then-outstanding Safes with the same “Post-Money Valuation Cap” and “Discount Rate” as this Safe (and Safes lacking one or both of such terms will be considered to be the same with respect to such term(s)), provided that with respect to clause (ii): (A) the Purchase Amount may not be amended, waived or modified in this manner, (B) the consent of the Investor and each holder of such Safes must be solicited (even if not obtained), and (C) such amendment, waiver or modification treats all such holders in the same manner. “Majority-in-interest” refers to the holders of the applicable group of Safes whose Safes have a total Purchase Amount greater than 50% of the total Purchase Amount of all of such applicable group of Safes.
(b) Any notice required or permitted by this Safe will be deemed sufficient when delivered personally or by overnight courier or sent by email to the relevant address listed on the signature page, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address listed on the signature page, as subsequently modified by written notice.
(c) The Investor is not entitled, as a holder of this Safe, to vote or be deemed a holder of Capital Stock for any purpose other than tax purposes, nor will anything in this Safe be construed to confer on the Investor, as such, any rights of a Company stockholder or rights to vote for the election of directors or on any matter submitted to Company stockholders, or to give or withhold consent to any corporate action or to receive notice of meetings, until shares have been issued on the terms described in Section 1. However, if the Company pays a dividend on outstanding shares of Common Stock (that is not payable in shares of Common Stock) while this Safe is outstanding, the Company will pay the Dividend Amount to the Investor at the same time.
(d) Neither this Safe nor the rights in this Safe are transferable or assignable, by operation of law or otherwise, by either party without the prior written consent of the other; provided, however, that this Safe and/or its rights may be assigned without the Company’s consent by the Investor (i) to the Investor’s estate, heirs, executors, administrators, guardians and/or successors in the event of Investor’s death or disability, or (ii) to any other entity who directly or indirectly, controls, is controlled by or is under common control with the Investor, including, without limitation, any general partner, managing member, officer or director of the Investor, or any venture capital fund now or hereafter existing which is controlled by one or more general partners or managing members of, or shares the same management company with, the Investor.
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(e) In the event any one or more of the provisions of this Safe is for any reason held to be invalid, illegal or unenforceable, in whole or in part or in any respect, or in the event that any one or more of the provisions of this Safe operate or would prospectively operate to invalidate this Safe, then and in any such event, such provision(s) only will be deemed null and void and will not affect any other provision of this Safe and the remaining provisions of this Safe will remain operative and in full force and effect and will not be affected, prejudiced, or disturbed thereby.
(f) All rights and obligations hereunder will be governed by the laws of the State of Delaware, without regard to the conflicts of law provisions of such jurisdiction.
(g) The parties acknowledge and agree that for United States federal and state income tax purposes this Safe is, and at all times has been, intended to be characterized as stock, and more particularly as common stock for purposes of Sections 304, 305, 306, 354, 368, 1036 and 1202 of the Internal Revenue Code of 1986, as amended. Accordingly, the parties agree to treat this Safe consistent with the foregoing intent for all United States federal and state income tax purposes (including, without limitation, on their respective tax returns or other informational statements).
(Signature page follows)
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IN WITNESS WHEREOF, the undersigned have caused this Safe to be duly executed and delivered.
| ELAUWIT CONNECTION, INC. | |||
| By: | |||
| Barry Rubens | |||
| CEO | |||
| Address: | |||
| Email: | |||
| INVESTOR: | |||
| By: | |||
| Name: | |||
| Title: | |||
| Address: | |||
| Email: | |||
Exhibit 10.1
DEFERRED COMPENSATION AGREEMENT
This Deferred Compensation Agreement (this “Agreement”) is entered into on August 20, 2024 by and between Elauwit Connection, Inc., a Delaware corporation (“Elauwit”), Daniel McDonough, Jr., (“McDonough”), Barry Rubens (“Rubens”), Taylor Jones (“Jones”) and Sean Arnette (“Arnette”).
WHEREAS, McDonough, Rubens, Jones and Arnette are management consultants and/or executive employees of Elauwit; and
WHEREAS, commencing in December, 2020 occasioned by the COVID-19 pandemic, McDonough, Rubens, Jones and Arnette agreed to defer portions of their owned compensation with the understanding that the cumulative arrearages would be repaid once business conditions permitted; and
WHEREAS, Elauwit desires to acknowledge amounts owed in deferred compensation and to provide a mechanism for repayment.
NOW, THEREFORE, in consideration of the premises and the respective representations, warranties, covenants and agreements set forth in this Agreement, Elauwit, McDonough, Rubens, Jones and Arnette agree as follows:
1. Acknowledgement of Debt. Elauwit acknowledges that as of June 30, 2024 it owes McDonough, Rubens, Jones and Arnette the respective amounts listed below:
| McDonough | - | $ | 173,126.60 | |||||
| Rubens | - | $ | 173,126.60 | |||||
| Jones | - | $ | 193,752.79 | |||||
| Arnette | - | $ | 141,366.46 |
The listed balances include interest at the rate of 3.25% on the cumulative balances from February 1, 2022. A detailed breakdown of deferred compensation balances as of June 30, 2024 is attached hereto as Schedule A.
2. Repayment of Arrearages. Commencing June 1, 2024, Elauwit has paid the sum of $2,500 per month to each of McDonough, Rubens, Jones and Arnette. Elauwit agrees to continue monthly payments at the minimum amount of $2,500 to McDonough, Rubens, Jones and Arnette until all arrearages are repaid in full. Elauwit may prepay the arrearages in whole or in part or increase the monthly minimum payments in its discretion subject to approval of disinterested Directors. Any prepayment or monthly increase shall apply equally to McDonough, Rubens, Jones and Arnette.
3. Amendment. No amendment to this Agreement shall be effective unless it has been executed in writing by all parties hereto, and no waiver of any provision of this Agreement shall be effective unless it has been executed in writing by the Party giving such waiver.
4. Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by the Parties (whether by operation of Law or otherwise) without the prior written consent of the other Party.
5. Entire Agreement. This Agreement, together with the Schedule attached hereto, contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all other prior discussions and agreements.
6. Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware and specifically the Delaware General Corporation Law, without giving effect to any choice or conflict of law provision.
7. Severability. If any term or other provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced, all other provisions of this Agreement shall nevertheless remain in full force and effect.
8. Counterparts. This Agreement may be signed electronically and in any number of counterparts, each of which shall be deemed to be an original, with the same effect as if the signatures on each counterpart were upon the same instrument. This Agreement may be executed by facsimile or portable document format (PDF) and any signature delivered by facsimile or PDF shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Deferred Compensation Agreement intending to be legally bound thereby, as of the date first written above.
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Barry Rubens | |
| Barry Rubens, CEO | ||
| /s/ Daniel McDonough, Jr. | ||
| Daniel McDonough, Jr. | ||
| /s/ Barry Rubens | ||
| Barry Rubens | ||
| /s/ Taylor Jones | ||
| Taylor Jones | ||
| /s/ Sean Arnette | ||
| Sean Arnette | ||
Exhibit 10.2
AMENDMENT TO
DEFERRED COMPENSATION AGREEMENT
THIS AMENDMENT TO DEFERRED COMPENSATION AGREEMENT (this “Amendment”), dated as of June 19, 2025 (the “Effective Date”), is made by and between Elauwit Connection, Inc., a Delaware corporation (the “Company”), Daniel McDonough, Jr., Barry Rubens, Taylor Jones and Sean Arnette (each, an “Executive”).
WITNESSETH
WHEREAS, the Company and each Executive entered into the Deferred Compensation Agreement (the “Agreement”) on August 20, 2024 to provide a mechanism for the repayment of compensation deferred from December 2020 to November 2022;
WHEREAS, pursuant to the Agreement, beginning on June 1, 2024, the Company agreed to pay a minimum of $2,500 per month to each Executive until all outstanding deferred compensation has been paid in full;
WHEREAS, pursuant to the Agreement, the Company may prepay the arrearages in whole or in part or increase the minimum monthly payments in its discretion subject to approval of the disinterested directors of the Company; and
WHEREAS, the Company and each Executive desire to amend the terms of the Agreement relating to prepayment of the deferred compensation.
NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Company and each Executive agree as follows:
1. Amendment. Section 2 of the Agreement is hereby amended by replacing the text of Section 2 in its entirety with the following:
“2. Repayment of Arrearages. Commencing June 1, 2024, Elauwit has paid the sum of $2,500 per month to each of McDonough, Rubens, Jones and Arnette. In the event Elauwit completes an initial public offering of its Class A common stock (the “IPO”), Elauwit agrees to prepay all arrearages to McDonough, Rubens, Jones and Arnette in full within 30 days of the closing of the IPO. From the Effective Date until the closing of the IPO, and for the avoidance of doubt, if Elauwit does not complete the IPO, Elauwit agrees to continue monthly payments at the minimum amount of $2,500 to McDonough, Rubens, Jones and Arnette until all arrearages are repaid in full. Elauwit may prepay the arrearages in whole or in part or increase the monthly minimum payments in its discretion subject to the approval of disinterested Directors. Any prepayment or monthly increase shall apply equally to McDonough, Rubens, Jones and Arnette.”
2. Effect of Amendment. This Amendment amends the terms of the Agreement. Except as specifically amended herein, the terms of the Agreement shall remain in full force and effect.
3. Miscellaneous. This Amendment may be executed in counterparts and exchanged between the parties electronically, each of which shall be deemed an original and binding to the same extent as a handwritten signature, and together shall constitute one and the same agreement.
[Signature Page follows]
IN WITNESS WHEREOF, the Company, Daniel McDonough, Jr., Barry Rubens, Taylor Jones and Sean Arnette have executed this Amendment as of the Effective Date.
| THE COMPANY | ||
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Elbert Basolis | |
| Name: | Elbert Basolis | |
| Title: | Director | |
| /s/ Daniel McDonough, Jr. | ||
| DANIEL MCDONOUGH, JR. | ||
| /s/ Barry Rubens | ||
| BARRY RUBENS | ||
| /s/ Taylor Jones | ||
| TAYLOR JONES | ||
| /s/ Sean Arnette | ||
| SEAN ARNETTE | ||
[Signature Page to Amendment to Deferred Compensation Agreement]
Exhibit 10.3
CONSULTING AGREEMENT
This Consulting Agreement (this “Agreement”) is made as of the closing date of the Company’s initial public offering by and between Elauwit Connection, Inc., a Delaware corporation, with its principal place of business located at 109 East 17th Street, Cheyenne, WY 82001 (the “Company”) and Baron Hunter Group, LLC, with its principal place of business located at ### (the “Consultant”).
1. Purpose. The purpose of this Agreement is to set forth the understanding and relationship between the Company and the Consultant. The Company hereby agrees to retain Consultant, and the Consultant hereby agrees to provide, through Daniel McDonough, Jr. and such other personnel necessary to complete the services provided under this Agreement, certain services for the Company, as an independent contractor, and not as an employee, upon the terms and conditions set forth below.
2. Professional Services. Consultant hereby agrees to provide to Company, as Executive Chairman, those services listed in “Schedule A – Professional Services” (collectively, the “Services”) attached hereto. The Consultant warrants that there is no other contract or duty on his part that conflicts with, prevents or impedes Consultant’s performance under this Agreement, nor will Consultant enter into any such agreement without the Company’s prior written consent. Consultant shall use commercially reasonable efforts to provide the Services as set forth in this Agreement. The Consultant shall cooperate reasonably with the request for Services from the Company’s Board of Directors and the Company’s Chief Executive Officer and other officers and management employees of the Company. The Consultant shall observe all rules, regulations and security and privacy requirements of the Company.
3. Payment.
| a. | From January 1, 2025 through December 31, 2025, the Company agrees to pay Consultant at a rate of $180,000 per annum for the Services provided under this Agreement. Beginning January 1, 2026, the Company agrees to pay Consultant at a rate of $240,000 per annum for the Services provided under this Agreement. |
| b. | Payments to Consultant under this Agreement shall be made monthly, in advance, on the first business day of the applicable month. |
| c. | As an independent contractor, Consultant agrees and understands that Consultant is not entitled to any other benefits and privileges established for Company employees, such as life, accident or health insurance, vacation and sick leave with pay, paid holidays, or severance pay upon termination of this Agreement for any reason. In accordance with Consultant’s independent contractor status, payments to Consultant shall not constitute wages/salary and therefore, no amounts shall be deducted for federal and state employment, Social Security or other taxes or employee benefit claims. Consultant shall be individually responsible for filing and paying Consultant’s own self-employment and withholding taxes. |
4. Independent Contractor. In the performance of the work, duties and obligations undertaken by the Consultant under this Agreement, it is mutually understood and agreed that the Consultant is at all times acting and performing as an independent contractor. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Except for the establishment of standards and parameters for the provision of the Services hereunder, the Company shall neither have nor exercise control over the methods by which the Consultant shall perform the Services under this Agreement. The Consultant agrees to provide the Services within the parameters established by the Company, but the Consultant will retain the right to determine the day-to-day methods by which the Services will be performed. However, this shall in no way interfere with the right of Company to determine whether Consultant is adequately, and in good faith, discharging his duties under this Agreement.
5. Indemnification. Consultant agrees to indemnify Company and hold Company harmless from any third-party claims, suits, losses, or damages, including reasonable attorneys’ fees, resulting from Consultant’s gross negligence or willful misconduct in the performance of Services.
6. Confidentiality.
(a) “Confidential Information” shall mean all proprietary and/or confidential information concerning the current or future business activities and operations of the Company, including such proprietary and/or confidential information with respect to: trade secrets; intellectual property (whether or not patented or registered); investor lists and investor information; technical information or reports; brand names, trademarks, formulas; unwritten knowledge and “know-how”; operating instructions; training manuals; marketing and sales strategies; market surveys; marketing plans; business plans; financial information, revenue forecasts and profitability analyses; analyses or plans relating to the acquisition or development of businesses; research and development data; information relating to pricing, competitive strategies, and new service or product development; information relating to any forms of compensation, employee evaluations, or other personnel-related information; customer lists and details of customer contracts; supplier and manufacturer lists and details of supplier and manufacturer contracts; information concerning planned or pending acquisitions or divestitures; and related materials which are unique to the Company and used by and developed by or for the Company in the conduct or promotion of its business, which is not generally known to the industry in which the Company is or may become engaged. Confidential Information shall not include information that (i) has been or becomes made generally available to the public or industry participants through no breach by the Consultant of the Consultant’s obligations under this Section 6, or (ii) is independently known or developed by the Consultant without reference to any Confidential Information.
(b) All Confidential Information is and shall remain the sole property of the Company, and the Consultant shall maintain the Confidential Information in strict confidence at all times during and after the Consultant’s engagement and the Consultant shall not use for the Consultant’s own benefit or that of any third party other than the Company any Confidential Information (other than as required by applicable law or applicable legal or regulatory process).
(c) During the Term, the Consultant shall not use any Confidential Information except in furtherance of the Consultant’s duties for the Company, nor disclose any Confidential Information except in furtherance of the Consultant’s duties in the ordinary course of business and in the exercise of the Consultant’s reasonable business judgment (subject to the execution of an appropriate confidentiality agreement by third parties), or as approved by the Chief Executive Officer of the Company, or as otherwise required by applicable law or applicable legal or regulatory process. Upon termination of this Agreement for any reason, except as provided in Section 6(d), the Consultant shall not use the Confidential Information for any reason or disclose it to any Person. Upon such termination, the Consultant and each affiliate of the Consultant (and if deceased, the Consultant’s beneficiary, estate or personal representative, as applicable) shall promptly return to the Company, without retaining copies, all items which are or which contain Confidential Information.
(d) If the Consultant is requested or required (by subpoena or other legal process or otherwise by applicable law or regulation) to disclose any of the Confidential Information (other than in a proceeding where the Consultant is acting on behalf of the Company and is represented by counsel to the Company), the Consultant shall provide the Company with prompt written notice of any such request or requirement and will reasonably cooperate with the Company in the event that the Company seeks a protective order or other appropriate remedy. If in the absence of a protective order or other remedy or the receipt of a waiver by the Consultant from the Company, the Consultant is nonetheless, in the opinion of the Consultant’s counsel, legally required to disclose Confidential Information to any tribunal or regulator or in any legal or regulatory process, the Consultant may disclose only that portion of the Confidential Information which the Consultant is advised by the Consultant’s counsel is so required to be disclosed.
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(e) The Consultant understands that the Consultant shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (i) is made (A) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Further, if the Consultant files a lawsuit for retaliation by the Company for reporting a suspected violation of law then the Consultant may disclose the trade secret to the Consultant’s attorney and use the trade secret information in the court proceeding, if the Consultant: (x) files any document containing the trade secret under seal; and (y) does not disclose the trade secret, except pursuant to court order.
(f) The parties acknowledge and agree that the Consultant’s covenants and obligations contained in this Section 6 are a material inducement to the Company entering into this Agreement and are essential to the continued growth and stability of the Company’s business, goodwill, client base and to the continuing viability of the Company’s endeavors.
(g) The parties acknowledge and agree that, notwithstanding the terms of this Section 6 Consultant shall be permitted to disclose the terms of this Agreement to (i) Consultant’s attorneys, accountants and other advisors; and (ii) immediate family members.
7. Term and Termination.
| a. | The Agreement shall have a term of two (2) years from the date of this Agreement (the “Term”). |
| b. | The Company or Consultant may terminate this Agreement for any reason upon sixty (60) days’ written notice; provided that any termination by the Company must comply with Section 7(c). |
| c. | If, during the Term, the Company prepays all amounts to be paid to Consultant for the Services through the Term, the Company may terminate this Agreement upon written notice to the Consultant with no further liability to the Consultant for unpaid amounts due under this Agreement. |
8. Choice of Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to its conflict of laws principles.
9. No Waiver. Any purported waiver of any default, breach or non-compliance under this Agreement is not effective unless in writing and signed by the party to be bound by the waiver. No amendment of this Agreement will be effective unless made in writing and signed by the parties.
10. Severability. If any provisions of this Agreement (or portions thereof) shall be held invalid or unenforceable, such provisions (or portions thereof) shall be ineffective only to the extent of such invalidity or unenforceability, and the remaining provisions of this Agreement (or portions thereof) shall nevertheless be valid, enforceable and of full force and effect. If any court of competent jurisdiction finds that a restriction in this Agreement is invalid or unenforceable, then the parties hereto agree that such invalid or unenforceable restriction shall be deemed modified so that it shall be valid and enforceable to the greatest extent permissible under law, and if such restriction cannot be modified so as to make it enforceable or valid, such finding shall not affect the enforceability or validity of any of the other restrictions herein.
11. Notices. All notices required hereunder shall be delivered to the addresses of the parties set forth above. Notices shall be in writing and shall be sent by pdf e-mail, by mail (postage prepaid, registered or certified, by United States mail, return receipt requested), by nationally recognized private courier or by personal delivery. Notices shall be effective, (i) if sent by pdf e-mail, when transmitted, (ii) if by nationally recognized private courier, when deposited with the private courier, (iii) if mailed, when deposited in the mail, and (iv) if personally delivered, the earlier of when delivery is made or first refused. Either party may change its address for the delivery of notices by written notice served in accordance with the provisions hereof.
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12. Binding Nature. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, executors, administrators, distributees, and solely with respect to the Company, its assigns, including any successor in interest to the Company who acquires all or substantially all of the Company’s assets or stock. The Consultant may not assign this Agreement to any other party.
13. Counterparts. This Agreement may be executed simultaneously in counterparts, each one of which shall be deemed an original and all of which together shall for all purposes constitute one Agreement. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, for example, www.docusign.com or www.signnow.com) or other transmission method mutually acceptable by the parties hereto, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
14. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to its subject matter, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. There are no other conditions, warranties, representations or other agreements between the parties in connection with the subject matter of this Agreement.
[signature page follows]
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In Witness Whereof, the parties hereto have executed this Agreement effective as of the date first set forth above.
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Barry Rubens | |
| Name: Barry Rubens | ||
| Title: Chief Executive Officer | ||
CONSULTANT:
| BARON HUNTER GROUP, LLC | ||
| By: | /s/ Daniel McDonough, Jr. | |
| Name: Daniel McDonough, Jr. | ||
| Title: Managing Member | ||
[signature page to Consulting Agreement - McDonough]
SCHEDULE A
Professional Services.
Exhibit 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the closing date of the Company’s initial public offering (the “Effective Date”), by and between and Elauwit Connection, Inc. (the “Company”), having an address of 109 East 17th Street, Cheyenne, WY 82001, and Barry Rubens, having a mailing address of ### (“Executive”).
RECITALS
WHEREAS, the Company and Executive desire to establish an employment relationship and enter into this Agreement to describe the terms of such employment relationship and the obligations of the parties.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and covenants contained herein, and the terms and conditions set forth below, the parties hereby agree as follows:
1. Employment and Duties:
1.1 (a) The Executive shall hold the title of Chief Executive Officer and shall in such capacity report directly to the Company’s Board of Directors (the “Board”). Executive shall perform such duties and functions as may be assigned to Executive from time to time by the Board. Such duties and responsibilities shall be commensurate with the duties and responsibilities of a Chief Executive Officer of a similarly sized company. Executive shall comply with all proper and reasonable directives and instructions of the Board. Executive agrees to travel to the extent reasonably necessary for the performance of his duties.
1.2 Executive shall devote his entire working time, attention, energy, skill and best efforts exclusively to the performance of the duties given to him by the Board in a manner that will faithfully and diligently further the Company’s business. Nothing herein shall preclude the Executive (i) from managing Executive’s passive personal investments; (ii) with prior written approval of the Company, from accepting appointment to, or continuing to serve on, any board of directors or trustees (and board committees) of any non-profit organization; or (iii) from participating in charitable, civic, educational, professional, community, or industry affairs; provided, further, that in each case, and in the aggregate, such activities do not, either directly or indirectly, conflict with or interfere with the performance of the Executive’s duties hereunder or violate his obligations under Section 4 of this Agreement.
2. Term and Termination: The Company hereby employs Executive, and Executive hereby accepts such employment. This Agreement shall be effective from the Effective Date and shall remain in effect for a period of two (2) years, unless earlier terminated as set forth herein (the “Term”).
2.1 Termination Without Cause. The Company or the Executive may terminate this Agreement and Executive’s employment by the Company for any reason by giving the other not less than 30 days’ written notice thereof. If the Company or Executive terminates the employment of Executive Without Cause, (i) Executive shall have no right to receive any compensation or benefit under this Agreement on and after the Effective Date of the Termination (as defined below in this Section) other than (A) Salary earned and unpaid under this Agreement prior to the Effective Date of the Termination, and (B) reimbursement for expenses incurred but not paid prior to the Effective Date of the Termination; and (C) any other benefits and incentives in which Executive is 100% vested; and (ii) this Agreement shall terminate upon the Effective Date of the Termination and Executive shall have no further rights hereunder, except that in the event the Company terminates Executive without Cause (as defined below) or if Executive resigns for Good Reason (as defined below), Executive will be entitled to severance payments in the amount of his base salary for period from the Effective Date of Termination until the end of the Term (the “Severance Pay”). Severance Pay shall become payable only if, and Severance Pay is expressly conditioned upon, the Executive delivering to the Company and not revoking within the revocation period (as defined therein) a general release of all claims in a form to be provided by and acceptable to the Company. Such general release shall be executed and delivered to the Company within twenty-one (21) days following the Effective Date of Termination or longer period as required by applicable law. Failure to timely execute and return such general release, without revocation, shall be a waiver of Executive’s right to Severance Pay. Severance Pay will not begin until the first regular payroll date following the end of the revocation period (assuming Executive does not revoke the general release of all claims). For purposes of Section 2.1, the “Effective Date of the Termination” shall mean the date set forth in the Company’s or Executive’s notice of termination.
2.1.1 Definition of Good Reason. “Good Reason” shall mean, without the Executive’s consent, (i) the Company’s material breach of this Agreement, including its terms relating to compensation; or (ii) a material diminution of the Executive’s title, authority and responsibilities as described in this Agreement. Notwithstanding the foregoing, it shall not constitute Good Reason if any of Executive’s job duties are temporarily performed by another Person or Persons during any period in which Executive is absent because of a physical or mental illness or injury (but prior to any time in which Executive is determined to be Permanently Disabled, as defined herein); provided further that the Executive may not resign the Executive’s employment for Good Reason unless (A) within thirty (30) days following the occurrence of the event constituting Good Reason, the Executive has provided the Company with prior written notice of the Executive’s intent to resign for Good Reason and has set forth in reasonable detail the conduct that constitutes Good Reason and the specific provisions of this Agreement on which the Executive relies and (B) the Company does not cure the conduct that constitutes Good Reason within thirty (30) days after receipt of such notice.
2.2 Termination Upon Death or Disability. This Agreement and Executive’s employment by the Company is terminated upon the death or “Disability” of Executive. For purposes of Section 2.2, the “Effective Date of the Termination” shall mean the date of death or the 90th consecutive day of Disability or the 120th non-consecutive day of Disability.
2.2.1 Definition of Disability. Executive’s Disability means the Executive’s inability to perform the essential functions of Executive’s duties to the Company by reason of Executive’s illness or injury, which inability has continued for a period of ninety (90) consecutive days or one hundred twenty (120) non-consecutive days in any twelve (12) month period.
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2.2.2 Effect of Death or Disability. Upon the death or Disability of Executive at any time during the term of this Agreement Executive (or Executive’s estate or beneficiaries in the case of the death of Executive) shall have no right to receive any compensation or benefits under this Agreement on and after the Effective Date of the Termination (as defined above) other than (i) Salary and commissions earned and unpaid under this Agreement prior to the Effective Date of the Termination, and (ii) reimbursement for expenses incurred but not paid prior to the Effective Date of the Termination; and (iii) any other benefits and incentives in which Executive is 100% full vested. Additionally, this Agreement shall terminate upon the Effective Date of the Termination and Executive shall have no further rights hereunder.
2.3 Termination For Cause. The Company may terminate the employment of Executive and this Agreement immediately for Cause.
2.3.1 Definition of Cause. For purposes of this Agreement, "Cause" shall mean: (i) Executive's neglect of his duties hereunder or misconduct or negligence in the performance of any such duty; (ii) dishonesty or intentional conduct on the part of Executive that is damaging or detrimental to the Company in any material respect; (iii) the material violation of the Company’s policies; (iv) the embezzlement or misappropriation by Executive of the Company's assets (whether tangible or intangible); (v) subject to limits imposed by applicable law, the conviction of, plea of nolo contendere or a guilty plea by, Executive as to a crime classified as a felony under any State or Federal law, or as to any crime (felony or misdemeanor) involving dishonesty, fraud, misappropriation of money or moral turpitude; (vi) the determination by the Company, after reasonable investigation, that Executive has harassed or discriminated against any person on the basis of race, color, creed, religion, gender, sexual preferences, age, marital status, disability or other protected class in violation of any federal, state, or municipal law or regulation; (vii) the breach by Executive of any of his representations or obligations under this Agreement, or (viii) the breach by Executive of the restrictions contained in Section 4 below.
2.3.2 Effect of Termination for Cause. If the Company terminates the employment of Executive for Cause, (i) Executive shall have no right to receive any compensation or benefit under this Agreement on and after the Effective Date of the Termination (as defined below in this Section) other than (A) Salary earned and unpaid under this Agreement prior to the Effective Date of the Termination, and (B) reimbursement for expenses incurred but not paid prior to the Effective Date of the Termination; and (C) any other benefits and incentives in which Executive is 100% vested; and (ii) this Agreement shall terminate upon the Effective Date of the Termination and Executive shall have no further rights hereunder. For purposes of Section 2.3, the “Effective Date of the Termination” shall mean the date on which a notice of termination is given by the Company or any later date set forth in such notice of termination.
3. Base Salary and Benefits; Annual Bonus and Stock Award Plan; Expense Reimbursement:
3.1 Salary. From January 1, 2025 through December 31, 2025, Executive shall receive an annual base salary (“Base Salary”) at the rate of $180,000 per annum, payable in accordance with payroll practices applicable to similarly situated executives of the Company, for all services rendered under this Agreement. Beginning January 1, 2026, for all services rendered under this Agreement, Executive shall receive a Base Salary at a rate of $240,000 per annum, payable in accordance with payroll practices applicable to similarly situated executives of the Company.
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3.2 Withholding. The Company may deduct and withhold from any amounts payable under this Agreement such federal, state, local, non-U.S. or other taxes as are required or permitted to be withheld pursuant to any applicable law or regulation.
3.3 Benefits. During the Term, Executive shall be entitled to participate in the benefit plans and programs commensurate with Executive’s position that are provided by the Company from time to time for comparable executives generally, subject to the terms and conditions of such plans. The Company may alter, modify, add to or delete from, or terminate any of its employee benefit plans at any time as it, in its sole judgment, determines to be appropriate, without recourse by Executive, except that no such action shall adversely affect any previously vested rights of Executive under such plans.
3.4 Expense Reimbursement. The Company shall reimburse Executive for reasonable and properly documented business expenses incurred during the Term in accordance with the Company’s then-prevailing policies and procedures for expense reimbursement.
3.5 Annual Bonus. From January 1, 2025 through December 31, 2025, the Executive shall be eligible to receive an annual cash bonus (the “Annual Performance Bonus”) based on performance and achievement of Company goals and objectives as defined by the Compensation Committee after consultation with management. Beginning January 1, 2026, the Executive shall be eligible to receive the Annual Performance Bonus based on performance and achievement of Company goals and objectives as defined by the Compensation Committee. The amount of the Annual Performance Bonus, if any, shall be determined by the Compensation Committee in its sole discretion.
3.6 Stock Incentive Plan. The Executive shall be eligible to participate in the Company’s Stock Incentive Plan, as may be amended from time to time at the Company’s discretion.
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4. Covenants:
4.1 Confidential Information. Subject to Sections 5 and 6 below, during the term of this Agreement and continuing thereafter, except to the extent necessary or required in the performance of Executive’s duties hereunder and/or as permitted by law or regulation, Executive shall not directly or indirectly use, disseminate or disclose any Confidential Information of the Company for Executive’s own benefit or for the benefit of any other party. “Confidential Information” includes, but is not limited to, information expressly identified as confidential; trade secrets; intellectual property (whether or not patented or registered); investor lists and investor information; technical information or reports; brand names, trademarks, formulas; unwritten knowledge and “know-how”; operating instructions; training manuals; marketing and sales strategies; market surveys; marketing plans; business plans; financial information, revenue forecasts and profitability analyses; analyses or plans relating to the acquisition or development of businesses; research and development data; information relating to pricing, competitive strategies, and new service or product development; information relating to any forms of compensation, employee evaluations, or other personnel-related information; customer lists and details of customer contracts; supplier and manufacturer lists and details of supplier and manufacturer contracts; information concerning planned or pending acquisitions or divestitures; and related materials which are unique to the Company and used by and developed by or for the Company in the conduct or promotion of its business, which is not generally known to the industry in which the Company is or may become engaged. The definition of “Confidential Information” is intended to have the broadest meaning as permitted by law and may extend for purposes of this Agreement beyond the definition of “trade secrets” as set forth in the Defend Trade Secrets Act of 2016 or the Uniform Trade Secrets Act. Notwithstanding the foregoing, the term “Confidential Information” shall not include any information which: (a) can be demonstrated to have been in the public domain or was publicly known or available prior to the date of the disclosure to Executive; (b) can be demonstrated in writing to have been rightfully in the possession of Executive prior to the disclosure of such information to Executive by the Company; (c) becomes part of the public domain or publicly known or available by publication or otherwise, not due to any unauthorized act of omission on the part of Executive or another party under a duty not to disclose such information; or (d) information required to be disclosed by law or pursuant to a final order of a court or arbitrator having jurisdiction thereof; provided, however, that prior to such disclosure Executive shall promptly notify the Company in writing of any such order or request to disclose and shall cooperate fully with the Company in protecting against any such disclosure by narrowing the scope of such disclosure and/or obtaining a protective order with respect to the permitted use of the Confidential Information. Executive’s obligations under this Section 4.1 shall be in addition to, not in substitution for, any common law fiduciary duties he has to the Company regarding information acquired during the course of his employment.
4.2 Confidentiality of Agreement. Except as set forth otherwise in this Agreement, Executive agrees that Executive shall not disclose the terms of this Agreement, except to Executive’s immediate family and Executive’s financial and legal advisors, as may be required by law, or as necessary to resolve a dispute concerning the terms of this Agreement.
4.3 Non-Competition. During his employment with the Company and for the one (1) year period after the termination of Executive’s employment with the Company for any reason (such period of time hereinafter referred to as the “Restricted Period”), Executive shall not directly or indirectly own, manage, operate, control, invest or acquire an interest in, or otherwise engage or participate in, whether as a proprietor, partner, stockholder, director, officer, member manager, employee or otherwise any business that competes with the Company, without the prior written consent of the Company. Notwithstanding any other provisions of this Agreement, Executive may make a passive investment in any publicly-traded company or entity in an amount not to exceed five percent of the voting stock of any such company or entity. The Restricted Period shall be tolled during any period in which Executive is in violation of this Section 4.3.
4.4 Non-Solicitation of Customers. During his employment with the Company and for the Restricted Period, Executive shall not, without the Company’s prior express written consent, solicit, call on, do business with, or actively interfere with the Company’s relationship with, or attempt to divert or entice away, any customer of the Company with whom the Executive had material contact during his employment by the Company. “Material contact” as used above means: (a) direct or indirect contact between the Executive and the customer for the purpose of establishing, maintaining or furthering a business relationship; (b) obtaining Confidential Information about a customer in the ordinary course of business as a result of Executive’s association with the Company; and/or (c) Executive’s receipt of compensation, commissions or other earnings as a result of the sale of products and/or provision of services to the customer The Restricted Period shall be tolled during any period in which Executive is in violation of this Section 4.4.
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4.5 Non-Solicitation of Employees. During his employment with the Company and for the Restricted Period, Executive shall not, without the Company’s prior express written consent, directly or indirectly, either for his own benefit or purpose or for the benefit or purpose of any person other than the Company, employ, or offer to employ, or actively interfere with the Company’s relationship with, or attempt to divert or entice away, any employee of the Company, nor shall Executive assist any other person in such activities. The Restricted Period shall be tolled during any period in which Executive is in violation of this Section 4.5.
4.6 Return of Property. Upon termination of the employment relationship for any reason, or upon written request by the Company at any other time, Executive shall return to the Company all notes, memoranda, specifications, devices, formulas, records, files, lists, drawings, documents, models, equipment, property, computer, software or intellectual property relating to the Company, in whatever form (including electronic), and all copies thereof, that are received or created by Executive while employed hereunder by the Company (including but not limited to Confidential Information).
4.7 Non-disparagement. Subject to the exceptions stated below and in Section 5 and 6, after the termination of his employment, Executive agrees to refrain from directly or indirectly interfering in any manner with the operations or management of the Company and from directly or indirectly disparaging the Company in any way, orally or in writing. “Disparage” for purposes of this section shall mean publication made without privilege of a matter that is untrue or induces others not to do business with or associate with the Company. Notwithstanding the above, nothing herein precludes Executive from providing truthful information to courts and/or governmental agencies, in connection with administrative and judicial proceedings, and/or in response to lawful process. Additionally, nothing herein precludes Executive from disclosing claims of unlawful discrimination and harassment and/or from discussing the underlying facts and circumstances of such claims.
4.8 Corporate Opportunity. During his employment with the Company and for the Restricted Period, Executive shall submit to the Company all business, commercial and investment opportunities or offers presented to Executive or which Executive becomes aware that relate to the Company’s business or that relates to opportunities in the geographic areas in which the Company has plans to do business prior and up to his termination from employment (the “Corporate Opportunities”). Further, during his employment with the Company and for the Restricted Period, Executive shall not, without the Company’s prior express written consent, accept or pursue, directly or indirectly, the Corporate Opportunities of which he became aware prior to his termination of employment on his own behalf or on behalf of others. The Restricted Period shall be tolled during any period in which Executive is in violation of this Section 4.8.
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4.9 Intellectual Property. Executive agrees to transfer, convey and assign and hereby transfers, conveys and assigns to the Company all of the Executive’s right, title and interest in and to all inventions, improvements, discoveries, formulas, processes, systems of organization, management procedures, software or computer applications (hereinafter, collectively, “Intellectual Property”) made or conceived by him either solely or jointly with others while in the employ of the Company, whether or not perfected during his period of employment and which shall be within the existing or contemplated scope of the Company’s business during his employment. Executive will assist the Company and its nominees in every way at the Company’s expense in obtaining patents for such Intellectual Property as may be patentable in any and all countries and Executive will execute all papers the Company may desire and assignments thereof to the Company or its nominees and said Intellectual Property shall be and remain the property of the Company and its nominees, if any, whether patented or not or assigned or not. The Executive shall not (either during the continuance of his employment by the Company or at any time thereafter) disclose any of such Intellectual Property to any person, firm or company or use any such Intellectual Property for his own purposes or for any purposes other than those of the Company.
4.10 Survival of Covenants. In the event of a termination of this Agreement, the covenants and agreements contained in this Section 4 shall survive, shall continue thereafter, and shall not expire unless and except as expressly set forth in this Section.
4.11 Reasonableness of Limitations.
4.11.1 The Executive acknowledges, warrants, represents and agrees that the restrictive covenants and remedies contained in Section 4 are necessary for the protection of the legitimate business interest of the Company and are reasonable in scope and content.
4.11.2 The Executive acknowledges that the territorial, time and other limitations of this Agreement are reasonable and properly required for adequate protection of the business and affairs of the Company, and, in the event that any such territorial, time or other limitation is found to be unreasonable by a court or arbitrator of competent jurisdiction, the Executive agrees and submits to the reduction of any said territorial, time or other limitation, or all of them, to such an area, period or otherwise as such court or arbitrator may determine to be reasonable, as if originally executed in that form by the parties hereto.
4.12 Remedies.
4.12.1 Without intending to limit the remedies available to the Company, Executive acknowledges that breach of any of the covenants contained in this Agreement may result in material, irreparable injury to the Company for which there is no adequate remedy at law, that it may not be possible to measure damages for such injuries precisely and that, in the event of such a breach, or threat thereof, the Company shall be entitled to obtain a temporary restraining order and/or preliminary or permanent injunction restraining Executive and any third party from engaging in activities prohibited by this Agreement or such other relief as may be required to specifically enforce the covenants in this Agreement.
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4.12.2 Executive hereby agrees and consents that such injunctive relief may be sought ex parte in any state or federal court of record in the State of Delaware, or in the state and county in which such violation may occur, or in any other court having jurisdiction, at the election of the Company.
4.12.3 Executive hereby waives any right he may have to require the Company to post a bond or other security with respect to obtaining or continuing any such injunction or temporary restraining order.
5. Notice of DTSA Immunities.
5.1 Executive acknowledges notice of the immunity provisions of the Defend Trade Secrets Act of 2016, which provide that an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret (as defined by applicable law) that (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
5.2 Executive acknowledges notice of the anti-retaliation provision of the Defend Trade Secrets Act of 2016, which provides that an individual who files a lawsuit alleging retaliation by an employer for reporting a suspected violation of law may disclose the trade secret (as defined by applicable law) to the attorney of the individual and use the trade secret information in the court proceeding if the individual (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.
6. Whistleblower Protection. Nothing in this Agreement prevents Executive from reporting conduct to, providing truthful information to, cooperating with, filing a charge or complaint with and/or participating in any investigation or proceeding conducted or initiated by the Equal Employment Opportunity Commission, National Labor Relations Board, Securities and Exchange Commission, Occupational Safety and Health Administration, and/or any other federal, state or local agency or self-regulatory organization charged with enforcement of any laws; provided, however, that Executive agrees not to disclose confidential information that is subject to a legal privilege of the Company, including but not limited to the attorney-client privilege and attorney work product protection.
7. Section 409A: The compensation and benefits under this Agreement are intended to comply with or be exempt from the requirements of Section 409A of the Internal Revenue Code and the regulations promulgated and other official guidance issued thereunder (collectively, “Section 409A”), and this Agreement will be interpreted in a manner consistent with that intent. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement are exempt from or comply with Section 409A, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive or any beneficiary on account of non-compliance with Section 409A. References to “termination of employment” and similar terms used in this Agreement mean, to the extent necessary to comply with or qualify for an exception from Section 409A, the date that Executive first incurs a “separation from service” within the meaning of Section 409A.
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8. Miscellaneous:
8.1 Governing Law. This Agreement shall be in all respects governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to conflict of law principles. Each party shall bear its own costs and expenses (including their respective attorneys’ fees and expenses) incurred in connection with any dispute arising out of or relating to this Agreement. However, in any action for injunctive relief to enforce the provisions of Section 4, the prevailing party shall be entitled to reimbursement from the other party for its expenses and reasonable attorneys’ fees associated with the action, in addition to any other relief to which such prevailing party may be entitled.
8.2 Notice. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent, postage prepaid, by registered, certified or express mail or overnight courier service and shall be deemed given when so delivered by hand, or if mailed, three days after mailing (one business day in the case of express mail or overnight courier service) to Executive at the most recent address listed in the Company records and to the Company at the following address (or at such other address for a party as shall be specified by like notice):
| If to the Company: | Elauwit Connection, Inc. | |
| 109 East 17th Street | ||
| Cheyenne, WY 82001 | ||
| Attn. Executive Chairman |
8.3 Invalidity or Unenforceability. Whenever possible, this Agreement and each provision, paragraph, subparagraph and any other portion hereof shall be interpreted in such manner as to be legally effective, valid and enforceable, but if this Agreement is adjudged by a court of competent jurisdiction to be void or unenforceable, in whole or in part, for any reason whatsoever, then any such portion of this Agreement adjudged to be unenforceable shall be severed, but only to the extent necessary to make this Agreement enforceable. However, if any court or arbitrator of competent jurisdiction determines that any provision of Section 4 hereof is void, unenforceable or invalid, in whole or in part, for any reason whatsoever, any such portion of the Agreement adjudged to be void, unenforceable or invalid shall be reformed by the court, arbitrator or by written agreement of the parties to make enforceable the otherwise unenforceable portion of the Agreement where and to the extent that reformation in lieu of partial or total invalidation and severance would more fully effect the parties’ intent, insofar as enforceable, as expressed herein. No total or partial severance or reformation effected pursuant to this section shall affect the validity of the remainder of the Agreement, including the validity of any other provision, paragraph, subparagraph or any other portion of the Agreement, and the Agreement, as severed or reformed, shall be fully enforceable as if it constituted the original Agreement of the parties as stated herein.
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8.4 Modification. Waiver, and Assignment.
8.4.1 This Agreement shall not be modified, amended, waived or discharged except by an instrument in writing signed by the parties hereto.
8.4.2 The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. No failure or delay by either party in exercising any right or power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment of any steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
8.4.3 This Agreement and all of its terms and conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns, including but not limited to any corporation or other entity with or into which the Company is merged or consolidated or any other successor of the Company. Executive agrees that he will not and may not assign, transfer or convey, pledge or encumber this Agreement or his right, title or interest therein, or his power to execute the same or any monies due or to become due hereunder, this Agreement being intended to secure the personal services of Executive, and the Company shall not recognize any such assignment, transfer, conveyance, pledge or encumbrance.
8.5 Entire Agreement. This Agreement, including any attachments hereto, constitutes the full and entire understanding between the parties regarding the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, or warranties regarding Executive’s employment by the Company, whether written or oral.
8.6 Interpretation. The parties acknowledge that each party and their respective counsel have reviewed this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments thereto.
8.7 Waiver. Any failure of a party to enforce its rights under any provision of this Agreement shall not be construed or act as a waiver of said party’s right to enforce any of the provisions contained herein.
8.8 Headings. The captions and headings contained herein are solely for convenience or reference, do not constitute part of this Agreement, and shall not affect the construction of any terms of this Agreement.
8.9 Non-Impairment Of Common Law. Nothing in this Agreement shall abrogate or reduce any duties or obligations Executive has to the Company under statutory or common law, including fiduciary duties, the duty of undivided loyalty to the Company, and the duty not to engage in tortuous interference with the Company’s actual or prospective business relationships.
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8.10 Opportunity to Review. Executive acknowledges that he has completely read and fully understands each of the terms and provisions of this Agreement and that he has executed this Agreement based on his own judgment, of his own free will, and without reliance upon any statement or representation of others not specifically set forth in writing or specifically referred to in the Agreement. Executive further acknowledges that he has been provided with the opportunity to review this Agreement with counsel of his own choosing at his own expense prior to executing the same.
8.11 Counterparts. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed an original and all of which counterparts taken together shall constitute but one and the same instrument. This Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic mail, shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Daniel McDonough, Jr. | |
| Name: | Daniel McDonough, Jr. | |
| Title: | Executive Chairman | |
| EXECUTIVE | ||
| /s/ Barry Rubens | ||
| By: Barry Rubens | ||
Exhibit 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the closing date of the Company’s initial public offering (the “Effective Date”), by and between and Elauwit Connection, Inc. (the “Company”), having an address of 109 East 17th Street, Cheyenne, WY 82001, and Taylor Jones, having an address of ### (“Executive”).
RECITALS
WHEREAS, the Company and Executive desire to establish an employment relationship and enter into this Agreement to describe the terms of such employment relationship and the obligations of the parties.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises and covenants contained herein, and the terms and conditions set forth below, the parties hereby agree as follows:
1. Employment and Duties:
1.1 (a) The Executive shall hold the title of President and Chief Technology Officer and shall in such capacity report directly to the Company’s Chief Executive Officer (the “CEO”). Executive shall perform such duties and functions as may be assigned to Executive from time to time by the CEO. Such duties and responsibilities shall be commensurate with the duties and responsibilities of a President and Chief Technology Officer of a similarly sized company. Executive shall comply with all proper and reasonable directives and instructions of the CEO. Executive agrees to travel to the extent reasonably necessary for the performance of his duties.
1.2 Executive shall devote his entire working time, attention, energy, skill and best efforts exclusively to the performance of the duties given to him by the CEO in a manner that will faithfully and diligently further the Company’s business. Nothing herein shall preclude the Executive (i) from managing Executive’s passive personal investments; (ii) with prior written approval of the Company, from accepting appointment to, or continuing to serve on, any board of directors or trustees (and board committees) of any non-profit organization; or (iii) from participating in charitable, civic, educational, professional, community, or industry affairs; provided, further, that in each case, and in the aggregate, such activities do not, either directly or indirectly, conflict with or interfere with the performance of the Executive’s duties hereunder or violate his obligations under Section 4 of this Agreement.
2. Term and Termination: The Company hereby employs Executive, and Executive hereby accepts such employment. This Agreement shall be effective from the Effective Date and shall remain in effect for a period of three (3) years, unless earlier terminated as set forth herein (the “Term”).
2.1 Termination Without Cause. The Company or the Executive may terminate this Agreement and Executive’s employment by the Company for any reason by giving the other not less than 30 days’ written notice thereof. If the Company or Executive terminates the employment of Executive Without Cause, (i) Executive shall have no right to receive any compensation or benefit under this Agreement on and after the Effective Date of the Termination (as defined below in this Section) other than (A) Salary earned and unpaid under this Agreement prior to the Effective Date of the Termination, and (B) reimbursement for expenses incurred but not paid prior to the Effective Date of the Termination; and (C) any other benefits and incentives in which Executive is 100% vested; and (ii) this Agreement shall terminate upon the Effective Date of the Termination and Executive shall have no further rights hereunder, except that in the event the Company terminates Executive without Cause (as defined below) or if Executive resigns for Good Reason (as defined below), Executive will be entitled to severance payments in the amount of his base salary for a period of one (1) year after the Effective Date of Termination (the “Severance Pay”). Severance Pay shall become payable only if, and Severance Pay is expressly conditioned upon, the Executive delivering to the Company and not revoking within the revocation period (as defined therein) a general release of all claims in a form to be provided by and acceptable to the Company. Such general release shall be executed and delivered to the Company within twenty-one (21) days following the Effective Date of Termination or longer period as required by applicable law. Failure to timely execute and return such general release, without revocation, shall be a waiver of Executive’s right to Severance Pay. Severance Pay will not begin until the first regular payroll date following the end of the revocation period (assuming Executive does not revoke the general release of all claims). For purposes of Section 2.1, the “Effective Date of the Termination” shall mean the date set forth in the Company’s or Executive’s notice of termination.
2.1.1 Definition of Good Reason. “Good Reason” shall mean, without the Executive’s consent, (i) the Company’s material breach of this Agreement, including its terms relating to compensation; or (ii) a material diminution of the Executive’s title, authority and responsibilities as described in this Agreement. Notwithstanding the foregoing, it shall not constitute Good Reason if any of Executive’s job duties are temporarily performed by another Person or Persons during any period in which Executive is absent because of a physical or mental illness or injury (but prior to any time in which Executive is determined to be Permanently Disabled, as defined herein); provided further that the Executive may not resign the Executive’s employment for Good Reason unless (A) within thirty (30) days following the occurrence of the event constituting Good Reason, the Executive has provided the Company with prior written notice of the Executive’s intent to resign for Good Reason and has set forth in reasonable detail the conduct that constitutes Good Reason and the specific provisions of this Agreement on which the Executive relies and (B) the Company does not cure the conduct that constitutes Good Reason within thirty (30) days after receipt of such notice.
2.2 Termination Upon Death or Disability. This Agreement and Executive’s employment by the Company is terminated upon the death or “Disability” of Executive. For purposes of Section 2.2, the “Effective Date of the Termination” shall mean the date of death or the 90th consecutive day of Disability or the 120th non-consecutive day of Disability.
2.2.1 Definition of Disability. Executive’s Disability means the Executive’s inability to perform the essential functions of Executive’s duties to the Company by reason of Executive’s illness or injury, which inability has continued for a period of ninety (90) consecutive days or one hundred twenty (120) non-consecutive days in any twelve (12) month period.
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2.2.2 Effect of Death or Disability. Upon the death or Disability of Executive at any time during the term of this Agreement Executive (or Executive’s estate or beneficiaries in the case of the death of Executive) shall have no right to receive any compensation or benefits under this Agreement on and after the Effective Date of the Termination (as defined above) other than (i) Salary and commissions earned and unpaid under this Agreement prior to the Effective Date of the Termination, and (ii) reimbursement for expenses incurred but not paid prior to the Effective Date of the Termination; and (iii) any other benefits and incentives in which Executive is 100% full vested. Additionally, this Agreement shall terminate upon the Effective Date of the Termination and Executive shall have no further rights hereunder.
2.3 Termination For Cause. The Company may terminate the employment of Executive and this Agreement immediately for Cause.
2.3.1 Definition of Cause. For purposes of this Agreement, "Cause" shall mean: (i) Executive's neglect of his duties hereunder or misconduct or negligence in the performance of any such duty; (ii) dishonesty or intentional conduct on the part of Executive that is damaging or detrimental to the Company in any material respect; (iii) the material violation of the Company’s policies; (iv) the embezzlement or misappropriation by Executive of the Company's assets (whether tangible or intangible); (v) subject to limits imposed by applicable law, the conviction of, plea of nolo contendere or a guilty plea by, Executive as to a crime classified as a felony under any State or Federal law, or as to any crime (felony or misdemeanor) involving dishonesty, fraud, misappropriation of money or moral turpitude; (vi) the determination by the Company, after reasonable investigation, that Executive has harassed or discriminated against any person on the basis of race, color, creed, religion, gender, sexual preferences, age, marital status, disability or other protected class in violation of any federal, state, or municipal law or regulation; (vii) the breach by Executive of any of his representations or obligations under this Agreement, or (viii) the breach by Executive of the restrictions contained in Section 4 below.
2.3.2 Effect of Termination for Cause. If the Company terminates the employment of Executive for Cause, (i) Executive shall have no right to receive any compensation or benefit under this Agreement on and after the Effective Date of the Termination (as defined below in this Section) other than (A) Salary earned and unpaid under this Agreement prior to the Effective Date of the Termination, and (B) reimbursement for expenses incurred but not paid prior to the Effective Date of the Termination; and (C) any other benefits and incentives in which Executive is 100% vested; and (ii) this Agreement shall terminate upon the Effective Date of the Termination and Executive shall have no further rights hereunder. For purposes of Section 2.3, the “Effective Date of the Termination” shall mean the date on which a notice of termination is given by the Company or any later date set forth in such notice of termination.
3. Base Salary and Benefits; Annual Bonus and Stock Award Plan; Expense Reimbursement:
3.1 Salary. From January 1, 2025 through December 31, 2025, Executive shall receive an annual base salary (“Base Salary”) at the rate of $180,000 per annum, payable in accordance with payroll practices applicable to similarly situated executives of the Company, for all services rendered under this Agreement. Beginning January 1, 2026, for all services rendered under this Agreement, Executive shall receive a Base Salary at a rate of $240,000 per annum, payable in accordance with payroll practices applicable to similarly situated executives of the Company.
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3.2 Withholding. The Company may deduct and withhold from any amounts payable under this Agreement such federal, state, local, non-U.S. or other taxes as are required or permitted to be withheld pursuant to any applicable law or regulation.
3.3 Benefits. During the Term, Executive shall be entitled to participate in the benefit plans and programs commensurate with Executive’s position that are provided by the Company from time to time for comparable executives generally, subject to the terms and conditions of such plans. The Company may alter, modify, add to or delete from, or terminate any of its employee benefit plans at any time as it, in its sole judgment, determines to be appropriate, without recourse by Executive, except that no such action shall adversely affect any previously vested rights of Executive under such plans.
3.4 Expense Reimbursement. The Company shall reimburse Executive for reasonable and properly documented business expenses incurred during the Term in accordance with the Company’s then-prevailing policies and procedures for expense reimbursement.
3.5 Annual Bonus. From January 1, 2025 through December 31, 2025, the Executive shall be eligible to receive an annual cash bonus (the “Annual Performance Bonus”) based on performance and achievement of Company goals and objectives as defined by the Compensation Committee after consultation with management. Beginning January 1, 2026, the Executive shall be eligible to receive the Annual Performance Bonus based on performance and achievement of Company goals and objectives as defined by the Compensation Committee. The amount of the Annual Performance Bonus, if any, shall be determined by the Compensation Committee in its sole discretion.
3.6 Stock Incentive Plan. The Executive shall be eligible to participate in the Company’s Stock Incentive Plan, as may be amended from time to time at the Company’s discretion.
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4. Covenants:
4.1 Confidential Information. Subject to Sections 5 and 6 below, during the term of this Agreement and continuing thereafter, except to the extent necessary or required in the performance of Executive’s duties hereunder and/or as permitted by law or regulation, Executive shall not directly or indirectly use, disseminate or disclose any Confidential Information of the Company for Executive’s own benefit or for the benefit of any other party. “Confidential Information” includes, but is not limited to, information expressly identified as confidential; trade secrets; intellectual property (whether or not patented or registered); investor lists and investor information; technical information or reports; brand names, trademarks, formulas; unwritten knowledge and “know-how”; operating instructions; training manuals; marketing and sales strategies; market surveys; marketing plans; business plans; financial information, revenue forecasts and profitability analyses; analyses or plans relating to the acquisition or development of businesses; research and development data; information relating to pricing, competitive strategies, and new service or product development; information relating to any forms of compensation, employee evaluations, or other personnel-related information; customer lists and details of customer contracts; supplier and manufacturer lists and details of supplier and manufacturer contracts; information concerning planned or pending acquisitions or divestitures; and related materials which are unique to the Company and used by and developed by or for the Company in the conduct or promotion of its business, which is not generally known to the industry in which the Company is or may become engaged. The definition of “Confidential Information” is intended to have the broadest meaning as permitted by law and may extend for purposes of this Agreement beyond the definition of “trade secrets” as set forth in the Defend Trade Secrets Act of 2016 or the Uniform Trade Secrets Act. Notwithstanding the foregoing, the term “Confidential Information” shall not include any information which: (a) can be demonstrated to have been in the public domain or was publicly known or available prior to the date of the disclosure to Executive; (b) can be demonstrated in writing to have been rightfully in the possession of Executive prior to the disclosure of such information to Executive by the Company; (c) becomes part of the public domain or publicly known or available by publication or otherwise, not due to any unauthorized act of omission on the part of Executive or another party under a duty not to disclose such information; or (d) information required to be disclosed by law or pursuant to a final order of a court or arbitrator having jurisdiction thereof; provided, however, that prior to such disclosure Executive shall promptly notify the Company in writing of any such order or request to disclose and shall cooperate fully with the Company in protecting against any such disclosure by narrowing the scope of such disclosure and/or obtaining a protective order with respect to the permitted use of the Confidential Information. Executive’s obligations under this Section 4.1 shall be in addition to, not in substitution for, any common law fiduciary duties he has to the Company regarding information acquired during the course of his employment.
4.2 Confidentiality of Agreement. Except as set forth otherwise in this Agreement, Executive agrees that Executive shall not disclose the terms of this Agreement, except to Executive’s immediate family and Executive’s financial and legal advisors, as may be required by law, or as necessary to resolve a dispute concerning the terms of this Agreement.
4.3 Non-Competition. During his employment with the Company and for the one (1) year period after the termination of Executive’s employment with the Company for any reason (such period of time hereinafter referred to as the “Restricted Period”), Executive shall not directly or indirectly own, manage, operate, control, invest or acquire an interest in, or otherwise engage or participate in, whether as a proprietor, partner, stockholder, director, officer, member manager, employee or otherwise any business that competes with the Company, without the prior written consent of the Company. Notwithstanding any other provisions of this Agreement, Executive may make a passive investment in any publicly-traded company or entity in an amount not to exceed five percent of the voting stock of any such company or entity. The Restricted Period shall be tolled during any period in which Executive is in violation of this Section 4.3.
4.4 Non-Solicitation of Customers. During his employment with the Company and for the Restricted Period, Executive shall not, without the Company’s prior express written consent, solicit, call on, do business with, or actively interfere with the Company’s relationship with, or attempt to divert or entice away, any customer of the Company with whom the Executive had material contact during his employment by the Company. “Material contact” as used above means: (a) direct or indirect contact between the Executive and the customer for the purpose of establishing, maintaining or furthering a business relationship; (b) obtaining Confidential Information about a customer in the ordinary course of business as a result of Executive’s association with the Company; and/or (c) Executive’s receipt of compensation, commissions or other earnings as a result of the sale of products and/or provision of services to the customer The Restricted Period shall be tolled during any period in which Executive is in violation of this Section 4.4.
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4.5 Non-Solicitation of Employees. During his employment with the Company and for the Restricted Period, Executive shall not, without the Company’s prior express written consent, directly or indirectly, either for his own benefit or purpose or for the benefit or purpose of any person other than the Company, employ, or offer to employ, or actively interfere with the Company’s relationship with, or attempt to divert or entice away, any employee of the Company, nor shall Executive assist any other person in such activities. The Restricted Period shall be tolled during any period in which Executive is in violation of this Section 4.5.
4.6 Return of Property. Upon termination of the employment relationship for any reason, or upon written request by the Company at any other time, Executive shall return to the Company all notes, memoranda, specifications, devices, formulas, records, files, lists, drawings, documents, models, equipment, property, computer, software or intellectual property relating to the Company, in whatever form (including electronic), and all copies thereof, that are received or created by Executive while employed hereunder by the Company (including but not limited to Confidential Information).
4.7 Non-disparagement. Subject to the exceptions stated below and in Section 5 and 6, after the termination of his employment, Executive agrees to refrain from directly or indirectly interfering in any manner with the operations or management of the Company and from directly or indirectly disparaging the Company in any way, orally or in writing. “Disparage” for purposes of this section shall mean publication made without privilege of a matter that is untrue or induces others not to do business with or associate with the Company. Notwithstanding the above, nothing herein precludes Executive from providing truthful information to courts and/or governmental agencies, in connection with administrative and judicial proceedings, and/or in response to lawful process. Additionally, nothing herein precludes Executive from disclosing claims of unlawful discrimination and harassment and/or from discussing the underlying facts and circumstances of such claims.
4.8 Corporate Opportunity. During his employment with the Company and for the Restricted Period, Executive shall submit to the Company all business, commercial and investment opportunities or offers presented to Executive or which Executive becomes aware that relate to the Company’s business or that relates to opportunities in the geographic areas in which the Company has plans to do business prior and up to his termination from employment (the “Corporate Opportunities”). Further, during his employment with the Company and for the Restricted Period, Executive shall not, without the Company’s prior express written consent, accept or pursue, directly or indirectly, the Corporate Opportunities of which he became aware prior to his termination of employment on his own behalf or on behalf of others. The Restricted Period shall be tolled during any period in which Executive is in violation of this Section 4.8.
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4.9 Intellectual Property. Executive agrees to transfer, convey and assign and hereby transfers, conveys and assigns to the Company all of the Executive’s right, title and interest in and to all inventions, improvements, discoveries, formulas, processes, systems of organization, management procedures, software or computer applications (hereinafter, collectively, “Intellectual Property”) made or conceived by him either solely or jointly with others while in the employ of the Company, whether or not perfected during his period of employment and which shall be within the existing or contemplated scope of the Company’s business during his employment. Executive will assist the Company and its nominees in every way at the Company’s expense in obtaining patents for such Intellectual Property as may be patentable in any and all countries and Executive will execute all papers the Company may desire and assignments thereof to the Company or its nominees and said Intellectual Property shall be and remain the property of the Company and its nominees, if any, whether patented or not or assigned or not. The Executive shall not (either during the continuance of his employment by the Company or at any time thereafter) disclose any of such Intellectual Property to any person, firm or company or use any such Intellectual Property for his own purposes or for any purposes other than those of the Company.
4.10 Survival of Covenants. In the event of a termination of this Agreement, the covenants and agreements contained in this Section 4 shall survive, shall continue thereafter, and shall not expire unless and except as expressly set forth in this Section.
4.11 Reasonableness of Limitations.
4.11.1 The Executive acknowledges, warrants, represents and agrees that the restrictive covenants and remedies contained in Section 4 are necessary for the protection of the legitimate business interest of the Company and are reasonable in scope and content.
4.11.2 The Executive acknowledges that the territorial, time and other limitations of this Agreement are reasonable and properly required for adequate protection of the business and affairs of the Company, and, in the event that any such territorial, time or other limitation is found to be unreasonable by a court or arbitrator of competent jurisdiction, the Executive agrees and submits to the reduction of any said territorial, time or other limitation, or all of them, to such an area, period or otherwise as such court or arbitrator may determine to be reasonable, as if originally executed in that form by the parties hereto.
4.12 Remedies.
4.12.1 Without intending to limit the remedies available to the Company, Executive acknowledges that breach of any of the covenants contained in this Agreement may result in material, irreparable injury to the Company for which there is no adequate remedy at law, that it may not be possible to measure damages for such injuries precisely and that, in the event of such a breach, or threat thereof, the Company shall be entitled to obtain a temporary restraining order and/or preliminary or permanent injunction restraining Executive and any third party from engaging in activities prohibited by this Agreement or such other relief as may be required to specifically enforce the covenants in this Agreement.
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4.12.2 Executive hereby agrees and consents that such injunctive relief may be sought ex parte in any state or federal court of record in the State of Delaware, or in the state and county in which such violation may occur, or in any other court having jurisdiction, at the election of the Company.
4.12.3 Executive hereby waives any right he may have to require the Company to post a bond or other security with respect to obtaining or continuing any such injunction or temporary restraining order.
5. Notice of DTSA Immunities.
5.1 Executive acknowledges notice of the immunity provisions of the Defend Trade Secrets Act of 2016, which provide that an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret (as defined by applicable law) that (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
5.2 Executive acknowledges notice of the anti-retaliation provision of the Defend Trade Secrets Act of 2016, which provides that an individual who files a lawsuit alleging retaliation by an employer for reporting a suspected violation of law may disclose the trade secret (as defined by applicable law) to the attorney of the individual and use the trade secret information in the court proceeding if the individual (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.
6. Whistleblower Protection. Nothing in this Agreement prevents Executive from reporting conduct to, providing truthful information to, cooperating with, filing a charge or complaint with and/or participating in any investigation or proceeding conducted or initiated by the Equal Employment Opportunity Commission, National Labor Relations Board, Securities and Exchange Commission, Occupational Safety and Health Administration, and/or any other federal, state or local agency or self-regulatory organization charged with enforcement of any laws; provided, however, that Executive agrees not to disclose confidential information that is subject to a legal privilege of the Company, including but not limited to the attorney-client privilege and attorney work product protection.
7. Section 409A: The compensation and benefits under this Agreement are intended to comply with or be exempt from the requirements of Section 409A of the Internal Revenue Code and the regulations promulgated and other official guidance issued thereunder (collectively, “Section 409A”), and this Agreement will be interpreted in a manner consistent with that intent. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement are exempt from or comply with Section 409A, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive or any beneficiary on account of non-compliance with Section 409A. References to “termination of employment” and similar terms used in this Agreement mean, to the extent necessary to comply with or qualify for an exception from Section 409A, the date that Executive first incurs a “separation from service” within the meaning of Section 409A.
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8. Miscellaneous:
8.1 Governing Law. This Agreement shall be in all respects governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to conflict of law principles. Each party shall bear its own costs and expenses (including their respective attorneys’ fees and expenses) incurred in connection with any dispute arising out of or relating to this Agreement. However, in any action for injunctive relief to enforce the provisions of Section 4, the prevailing party shall be entitled to reimbursement from the other party for its expenses and reasonable attorneys’ fees associated with the action, in addition to any other relief to which such prevailing party may be entitled.
8.2 Notice. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent, postage prepaid, by registered, certified or express mail or overnight courier service and shall be deemed given when so delivered by hand, or if mailed, three days after mailing (one business day in the case of express mail or overnight courier service) to Executive at the most recent address listed in the Company records and to the Company at the following address (or at such other address for a party as shall be specified by like notice):
| If to the Company: | Elauwit Connection, Inc. | |
| 109 East 17th Street | ||
| Cheyenne, WY 82001 | ||
| Attn. Chief Executive Officer |
8.3 Invalidity or Unenforceability. Whenever possible, this Agreement and each provision, paragraph, subparagraph and any other portion hereof shall be interpreted in such manner as to be legally effective, valid and enforceable, but if this Agreement is adjudged by a court of competent jurisdiction to be void or unenforceable, in whole or in part, for any reason whatsoever, then any such portion of this Agreement adjudged to be unenforceable shall be severed, but only to the extent necessary to make this Agreement enforceable. However, if any court or arbitrator of competent jurisdiction determines that any provision of Section 4 hereof is void, unenforceable or invalid, in whole or in part, for any reason whatsoever, any such portion of the Agreement adjudged to be void, unenforceable or invalid shall be reformed by the court, arbitrator or by written agreement of the parties to make enforceable the otherwise unenforceable portion of the Agreement where and to the extent that reformation in lieu of partial or total invalidation and severance would more fully effect the parties’ intent, insofar as enforceable, as expressed herein. No total or partial severance or reformation effected pursuant to this section shall affect the validity of the remainder of the Agreement, including the validity of any other provision, paragraph, subparagraph or any other portion of the Agreement, and the Agreement, as severed or reformed, shall be fully enforceable as if it constituted the original Agreement of the parties as stated herein.
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8.4 Modification. Waiver, and Assignment.
8.4.1 This Agreement shall not be modified, amended, waived or discharged except by an instrument in writing signed by the parties hereto.
8.4.2 The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. No failure or delay by either party in exercising any right or power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment of any steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
8.4.3 This Agreement and all of its terms and conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns, including but not limited to any corporation or other entity with or into which the Company is merged or consolidated or any other successor of the Company. Executive agrees that he will not and may not assign, transfer or convey, pledge or encumber this Agreement or his right, title or interest therein, or his power to execute the same or any monies due or to become due hereunder, this Agreement being intended to secure the personal services of Executive, and the Company shall not recognize any such assignment, transfer, conveyance, pledge or encumbrance.
8.5 Entire Agreement. This Agreement, including any attachments hereto, constitutes the full and entire understanding between the parties regarding the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, or warranties regarding Executive’s employment by the Company, whether written or oral.
8.6 Interpretation. The parties acknowledge that each party and their respective counsel have reviewed this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments thereto.
8.7 Waiver. Any failure of a party to enforce its rights under any provision of this Agreement shall not be construed or act as a waiver of said party’s right to enforce any of the provisions contained herein.
8.8 Headings. The captions and headings contained herein are solely for convenience or reference, do not constitute part of this Agreement, and shall not affect the construction of any terms of this Agreement.
8.9 Non-Impairment Of Common Law. Nothing in this Agreement shall abrogate or reduce any duties or obligations Executive has to the Company under statutory or common law, including fiduciary duties, the duty of undivided loyalty to the Company, and the duty not to engage in tortuous interference with the Company’s actual or prospective business relationships.
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8.10 Opportunity to Review. Executive acknowledges that he has completely read and fully understands each of the terms and provisions of this Agreement and that he has executed this Agreement based on his own judgment, of his own free will, and without reliance upon any statement or representation of others not specifically set forth in writing or specifically referred to in the Agreement. Executive further acknowledges that he has been provided with the opportunity to review this Agreement with counsel of his own choosing at his own expense prior to executing the same.
8.11 Counterparts. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed an original and all of which counterparts taken together shall constitute but one and the same instrument. This Agreement and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic mail, shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Barry Rubens | |
| Name: | Barry Rubens | |
| Title: | Chief Executive Officer | |
| EXECUTIVE | ||
| /s/ Taylor Jones | ||
| By: Taylor Jones | ||
Exhibit 10.7
NETWORK SERVICE AGREEMENT
THIS NETWORK SERVICE AGREEMENT (the “Agreement” or “NSA“) is made and entered into as of the Effective Date set forth and defined below, by and between ELAUWIT CONNECTION, INC. (the “Company”) having its principal office at 109 East 17th Street, Cheyenne, WY 82001 and [ ], as set forth and defined below, each referred to herein individually as “Party” and collectively “the Parties.” For good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:
A. Defined Terms and Fundamental Agreement Provisions
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Effective Date of Agreement: (“Effective Date”)
Owner of Property: (“Owner”)
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____/____/_______
_______________________________________ (legal entity) |
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Owner Notice Information: (“Owner Notice Information”)
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_______________________________________ (legal entity) Attn: __________________________________ (name) _______________________________________ (street address) _______________________________________ (city, state ZIP)
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Owner Invoicing Point of Contact: (Owner Invoicing Contact)
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_______________________________________ (legal entity) Attn: __________________________________ (name) _______________________________________ (street address) _______________________________________ (city, state ZIP) _______________________________________ (email)
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Property Name and Address: (“Property”)
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_______________________________________ (name) _______________________________________ (street address) _______________________________________ (city, state ZIP)
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Total Units: |
______ Units |
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Target Service Commencement Date: (“Projected Service Commencement Date”)
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____/_____/______ |
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Initial Term of Agreement: (“Initial Term”) |
__ months from Projected Service Commencement Date |
| Page 1 of 15 | Network Service Agreement |
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NSA Services to be Provided: (“NSA Services”)
(Note: NSA Services included under this Agreement are designated with an “X”)
NSA Services (cont.)
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¨ Internet Service
¨ Internet Managed Support – wired and wireless, if available (including common area wireless and Property-wide wireless)
¨ Redundant/Backup Internet Service
¨ Wireless Internet (WiFi) Services
¨ Wired Ethernet Services
¨ Resident Internet Service Speed – 200/200Mbps per account
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Other Services to be Provided: (“Other Services”)
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¨ __________________________________________ __________________________________________
¨ __________________________________________ __________________________________________ |
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Monthly per Unit Fee for NSA Services: (“NSA Unit Service Fee”)
Construction Contract Sum: (“Contract Sum”)
Initial Deposit Payment: (“Initial Deposit”) |
NSA Unit Service Fee: $ (monthly per unit)
$
50% of the Contract Sum, due and payable within 15 days of the Effective Date
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Monthly Fees for Other Services: (“Other Services Fees”)
Owner Provided Cabling: |
______________________________: $____ per _____
______________________________: $____ per _____
[To be determined] |
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Exhibits: |
The following other documents (if any):
Exhibit A Statement of Work Exhibit B Service Level Objectives Exhibit C Acceptable Use Policy Exhibit D Telecommunications Standards and Requirements Exhibit E Certificate of Acceptance |
| Page 2 of 15 | Network Service Agreement |
B. Remaining Agreement Provisions
| 1. | Incorporation of Defined Terms and Fundamental Agreement Provisions. The terms defined and otherwise set forth above in Section A of this Agreement are incorporated fully as material terms of the Parties’ agreement set forth herein. Capitalized but undefined terms appearing in this Section B of this Agreement shall have the meaning set forth in Section A, above. |
| 2. | Term. The Initial Term of this Agreement shall be as set forth in Section A above, unless earlier terminated pursuant to the provisions set forth herein. This Agreement shall automatically renew at the end of the Initial Term, and any subsequent renewal term, for an additional term of one year unless either Party gives the other written notice of termination at least 90 days prior to the end of the Initial or renewal Term. |
| 3. | Appointment of Company as Customer Education Representative. Owner appoints Company as its representative for the purpose of providing customer education and self-help information related to the NSA Services at the Property. Any materials distributed for such purposes will be provided to Owner before the materials are released. Owner may create and distribute its own materials related to the NSA Services; provided, however, that Owner shall first obtain Company’s approval of any such materials. |
| 4. | Company’s Obligations. |
4.1 Facilities. Subject to the terms and conditions set forth herein, Company shall consult with Owner regarding the design, installation and testing plans of the fiber optic and copper distribution network, network equipment and other facilities within the Property necessary for the provision of the NSA Services to each individual Resident space within the Property (collectively, the “Facilities”).
4.2 NSA Services. Company will provide the NSA Services to Owner and Residents of the Property. Upon Owner’ request, Company shall reasonably cooperate with Owner in terminating for cause any NSA Services being provided to a Resident. Internet speeds will be delivered via a “best efforts” network, meaning that all Residents obtain a maximum variable bit rate and delivery time, depending on the current traffic load. The Company and Owner shall periodically review bandwidth to determine usage at the Property. The Internet speed noted in Section A, above, is for wired Ethernet services. Wireless speeds will largely depend on a combination of the end user device being utilized, the type of wireless access points deployed, and the bandwidth provided.
4.3 Other Services. Company shall be entitled to market to Residents of the Property such Other Services (if any) as are set forth in Section A, above.
4.4 Ongoing Support and Maintenance Services. The Company shall provide to Owner the following ongoing support, maintenance, and related services in connection with the Facilities, NSA Services, and Other Services (if any): (1) maintenance and repair of the Facilities, in accordance with the Service Level Objectives set forth in Section B.2, below, which maintenance shall include two semi-annual visits to Property; (2) coordination and contracting with third party providers for bandwidth, to the extent set forth in Section A, above; (3) customer services activities, including but not limited to service activations, changes and deletions, bill inquiries, product and service inquiries, and response to service tickets; (4) interaction and training of Owner office personnel on the NSA Services and Other Services (if any), basic operation of the Facilities, and location of the Facilities; (5) administer billing and collection for Other Services (if any) as appropriate; (6) maintain by telephone, internet, and email, continual twenty-four hour hotline availability for service issues, trouble-shooting and response to service tickets; (7) develop and administer management reports as required in this Agreement, or as may reasonably be requested by Owner; and (8) provide outage and resolution notification to Owner.
4.5 Service Level Objectives. The Company’s delivery of the NSA Services and Other Services (if any) under this Agreement shall be governed by and conform to the Service Level Objectives set forth in Exhibit B to this Agreement. These objectives may be added to or modified based on the mutual written consent of the Parties.
4.6 Future Services. Company will reasonably cooperate with Owner to bring future advanced services to the Property, taking into account Company’s business plan, the Facilities’ architecture and capabilities, licensing availability, and competitive and commercial feasibility; provided, however, that the provision of any such future services shall be subject to fees in addition to those set forth in this Agreement and shall be the subject of a separate written agreement to be entered into by the Parties.
4.7. Network Hardware. The Network Hardware described in Exhibit A, the “Network Hardware”, shall become the property of Owner upon full payment of the Contract Sum. The Network Hardware shall further include (i) all accessions, attachments, accessories, tools, parts, supplies, replacements of and additions to the Network Hardware whether added now or at any time hereafter, and (ii) all proceeds, including insurance proceeds, from the sale, destruction, loss or other disposition of any of the Network Hardware.
| Page 3 of 15 | Network Service Agreement |
4.8 Service & Repairs. The Facilities shall be serviced, repaired or replaced by Company to the extent necessary to maintain service to Owner, and the cost for same shall be the responsibility of Owner. Any part of the Facilities hereunder which is under warranty by the original equipment manufacturer shall be serviced, repaired or replaced by Company to the extent necessary to maintain service to Owner, in which case Owner shall be responsible for labor and shipping costs incurred by Company in doing so (but Owner shall not be responsible for the cost of parts/hardware covered by ay applicable warranty). Company’s labor cost for work performed under this Section B.4.8 shall not exceed $125.00 per hour except for work related to the repair of fiber optic cabling. Company’s labor cost for repair of fiber optic cabling shall not exceed $200.00 per hour.
| 5. | Owners’ Obligations. |
5.1 Right of Access. Owner shall provide Company reasonable access to Property for the purpose of marketing of Services, conducting customer satisfaction surveys and performing any and all work as deemed necessary by the Company by its employees, agents, or contractors for the operation of the Facilities. In the event Company dispatches a technician in response to a service ticket and the technician is unable to obtain access to the area(s) necessary to respond to the underlying problem, Company may, in addition to all other charges applicable under this Agreement, charge Owner a trip fee of up to $80, provided that the Property staff and/or affected Resident were notified of the scheduled visit in advance.
5.2 IT Equipment Rooms. Owner
shall ensure that all IT equipment rooms within the Property necessary for the Company’s performance of this Agreement shall comply
with the Telecommunications Standards and Requirements for NSA Communities, attached hereto as Exhibit D.
5.3 NSA Service Fees. The monthly fees charged to Owner by the Company for the NSA Services provided hereunder are set forth in Section A, above, and are inclusive of federal, state, and local taxes or fees, as may be applicable, for units within the Property either receiving or capable of receiving NSA Services from the Company.
The NSA Service Fees set forth in Section A, above, are based upon the Internet bandwidth/circuit costs required to be provided by the Company hereunder and available at the Projected Service Commencement Date, and therefore are due and payable by Owner regardless of the number of Residents occupied or available for occupancy at the Projected Service Commencement Date. Notwithstanding the foregoing, the Company may agree with Owner to provide NSA Services to the Property in advance of the Projected Service Commencement Date, in which case the fees for such NSA Services may be invoiced by the Company upon commencement of such NSA Services and payable by Owner in accordance with Section B.5.4, below.
5.4 Billing and Collection of NSA Service Fees. Company will invoice Owner one month in advance for the NSA Services. The due date for payments shall be thirty (30) days after the invoice date. Any past due NSA Service Fees shall result in a late fee payable to Company equal to the lesser of (a) 1.5% per month, or (b) the maximum rate allowed by law, of any outstanding balance until said balance shall be paid in full.
5.5 Changes to NSA Service Fees. Any exogenous changes to Company’s costs, in effect at the Effective Date, that occur as a result of (a) increases or decreases in government fees or taxes, and/or (b) regulatory fees or assessments from the content provider shall be passed to Owner by the Company in the course of monthly invoicing for services.
In addition to the foregoing, upon the first anniversary of the Projected Service Commencement Date, Company may increase the NSA Unit Service Fee up to three percent (3%) once each agreement year during the remaining term of this Agreement.
5.6 Contract Sum. Elauwit and its affiliates shall construct, provide or cause to be provided the network described in Exhibit A hereto (“Network”). The scope of Elauwit’s work as set forth in Exhibit A shall be referred to herein collectively as the “Work.” Elauwit and its affiliates will complete the Work hereunder in exchange for payment by Owner to Elauwit of the Contract Sum, which sum is inclusive of all items and services necessary for the execution and completion of the Work.
| Page 4 of 15 | Network Service Agreement |
5.7 Contract Sum Billing. Owner shall pay Elauwit the Initial Deposit within fifteen (15) days of the Effective Date. Owner’s timely payment of the Initial Deposit is required for Elauwit to commence the design and engineering of the Network.
5.8 Contract Sum Payment Terms. Elauwit shall receive, and Owner shall pay, monthly construction payments upon submission of invoices to Owner by Elauwit. Payments will be subject to the construction draw process and timing. Owner agrees that any materials, electronics or Network Hardware ordered by Elauwit for the project shall be submitted by Elauwit within the construction draw process. For payment, all invoices should be forwarded to the Owner Invoicing Contact set forth in Article 1, above. The due date for payments shall be thirty (30) days after the invoice date. Any past due amounts shall result in a late fee payable to Elauwit equal to the lesser of (a) 1.5% per month, or (b) the maximum rate allowed by law, of any outstanding balance until said balance shall be paid in full. In the event of Owner’s failure to comply timely with its payment obligations under this Section 5, Elauwit may, at its option, suspend performance of this Agreement (without termination thereof) until such time as Owner’s noncompliance is cured.
5.9 Contract Sum Holdback. Owner may hold back a retainer equivalent to ten percent (10%) of the Contract Sum pending the satisfactory completion of the Work, which retainer shall be paid to Elauwit within thirty (30) days of satisfactory completion of the Work.
5.10 Acceptable Use Policy. All Residents must abide by Company’s “Acceptable Use Policy” or other such terms and conditions that shall govern the use of the Services. Failure to abide by these policies may result in the disconnection of violating Services. The “Acceptable Use Policy” is attached hereto as Exhibit C.
5.11 Other Services – Fees and Billing. Company shall offer such Other Services, if any, as are set forth in Section A, above, directly to Residents of the Property, which will be separate from the NSA Services described above. All such Other Services shall be billed directly and separately to Residents by Company and are payable by the respective Residents who subscribe to such services and Owner shall have no liability for the payment of any such fees. Company reserves the right to disconnect Other Services to any individual resident that has not paid their Other Services charges.
5.12 Owner Provided Cabling. Owner shall provide the cabling set forth in Section A, above. Except as otherwise provided herein, Owner shall retain ownership of Owner provided cabling and shall be responsible for the cost, operation, maintenance, repair, and replacement of same.
| 6. | General |
6.1 Assignment. This Agreement may be assigned or transferred by either Party with the written notification to the other Party.
6.2 Compliance with Laws. The Parties agree to comply with all relevant applicable federal, state, county, and local laws, ordinances, regulations, and codes (including the identification and procurement of required permits, certificates, approvals, and inspections) in their performance under this Agreement.
6.3. Confidential Information. The parties agree that the pricing included in this Agreement, and such other information such as the parties may agree in writing, shall remain confidential and be treated accordingly between the parties. Neither party shall make any press release or other public disclosure or announcement with respect to this Agreement without the prior consent of the other party and the prior approval of the other party, not to be unreasonably withheld, of the content and language of such release or announcement.
6.4. Counterparts. This Agreement may be executed in one or more counterpart or duplicate copies and by facsimile signature, and any signed counterparts, duplicate or facsimile copy shall be the equivalent to a signed original for all purposes.
| Page 5 of 15 | Network Service Agreement |
6.5. Force Majeure. No Party shall be held liable for any reasonable delay or failure in performance of any part of this Agreement because of any cause or circumstances beyond its control such as, but not limited to, acts of God, lightning, explosion, fire, power failure, strikes, terrorism, newly enacted laws or regulations, the failure of upstream suppliers of services, or any other cause arising without its actual fault (collectively, “Force Majeure” conditions). In the event of a Force Majeure condition affecting any Party, the Parties shall cooperate as appropriate to perform their obligations under this Agreement to the extent reasonably practical. Notwithstanding the foregoing, events of Force Majeure shall not excuse any Party from its obligations, if any, to make monetary payments hereunder.
6.6. Governing Law. This Agreement, including questions as to jurisdiction and Property, shall be interpreted and governed by the laws of the State of Delaware, without regard to its conflict of laws principles.
6.7. Indemnification. Company shall not be liable to Owner for interruption of service for any cause greater than the amount of the then current month’s NSA Service Fee. Each Party agrees to indemnify, defend, and hold harmless the other Party (including its officers, directors, principals, assigns, successors, affiliates, agents, and employees) from and against any and all liability, loss, damage, claim or expense (including reasonable attorneys’ fees and court costs), incurred by the other Party in connection with: (a) any claim, demand, or suit for damages, injunction or other relief to the extent it is caused by or results from the negligence, gross negligence or intentional misconduct (including, without limitation, breach or nonperformance of this contract) of the indemnifying party (including any of its agents, or subcontractors); and (b) any actual or alleged infringement of any third party’s trade secrets, trademark, copyright, patent or other intellectual Property rights by the indemnifying Party.
In the event that a claim arises under this Section, the indemnifying Party agrees to provide the indemnified Party with sufficient notice of any claim, to inform the indemnified Party of any subsequent written communication regarding the claim and to fully cooperate with the indemnified Party in defense of the claim.
6.8. Independent Contractor. Each Party will conduct its business at its own initiative, responsibility, and expense. Individuals employed by each Party are not employees of the other(s), and the employing Party assumes full responsibility for the acts and omissions of its own employees acting in the course and scope of employment. Each Party has and retains the right to exercise full control of and supervision over employment, direction, compensation, and discharge of its employees, including compliance with Social Security withholding, Workers’ Compensation, unemployment, payroll taxes, and all other taxes and regulations governing such matters. Parties agree and acknowledge that Owner’s Property and premises are not the premises or a work location of Company.
Nothing herein contained shall constitute a partnership between or joint venture by the Parties hereto or constitute any party the agent of the others. No Party shall hold itself out contrary to the terms of this Section B.6.8 and no Party shall become liable by any representation, act or omission of the other contrary to the provisions hereof. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not.
6.9. Insurance. Each Party agrees to maintain as a minimum, at all times during the Agreement Term, the following insurance coverage and any other additional insurance and/or bonds required by law:
Commercial General Liability insurance with minimum limits of $1,000,000 per occurrence for bodily injury (or death); Property Damage Liability with limits of at least $1,000,000 per occurrence; Personal Injury Liability with limits of at least $1,000,000 per occurrence; and $2,000,000 General Policy aggregate (applicable to Commercial General Liability Policies).
Upon a Party’s request, the other Party agrees to furnish certificates or other acceptable proof of the foregoing insurance. Company and Owner warrant that they are self-insured and meet or exceed all equivalent insurance requirements stated herein and those that are required by the laws in the states in which they conduct business.
Company will provide the appropriate proof of insurance to Owner with an insurance policy rider or equivalent proof of coverage for the individual Property or project subject to this Agreement.
| Page 6 of 15 | Network Service Agreement |
6.10. Limitation of Liability. Company’s liability, if any, to Residents who are Company’s customers will be governed exclusively in the case of regulated services by Company’s applicable tariffs, price lists, or comparable documents on file with the applicable state regulatory agency, or in the case of non-regulated services by the applicable contract with the Resident.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, WHETHER BY TORT OR CONTRACT.
Neither Party makes any warranty to the other Party except as expressly set forth in this Agreement below and any of its exhibits. The express undertakings and warranties, if any, given by the Parties in this Agreement are in lieu of all other warranties, conditions, terms, undertakings and obligations, whether express or implied by statute, common law, custom, trade usage, course of dealing, or in any other way. All of these are excluded to the fullest extent permitted by law.
6.11 Product Warranty. Owner understands that Company is not the manufacturer of the Network Hardware. Company shall use commercially reasonable efforts to pass-through or assign to Owner the benefit of any original equipment manufacturer warranties on the equipment and materials comprising the Network Hardware to the extent Company has the right to do so. The sole and exclusive remedy of Owner for any defect in Network Hardware shall be the replacement or repair of the defective component in accordance with the original equipment manufacturer warrant(ies) relating thereto. In the event Owner wishes for Company to perform repair or replacement services, such services shall be subject to additional costs and governed by a separate written agreement between the Parties.
6.12 Installation Warranty. Company warrants that the Work will be performed in a good and workmanlike manner. Upon completion of the Network construction, Company will test the Network to verify successful installation. When Company believes that all conditions necessary for acceptance have been met, Company will present Owner an acceptance certificate in substantially the form attached hereto as Exhibit E (the “Certificate of Acceptance”) for signature. Owner shall also be permitted to inspect and test the Network for up to ten (10) days beginning from the completion of the Network construction (the "Inspection Period") to confirm that the Network is free from any material installation or craftsmanship defects. Owner shall notify Company in writing if Owner discovers any material defects during such inspection and testing, and Company shall be permitted a reasonable time to correct such defects. Upon the earlier of (a) Owner's execution of the Certificate of Acceptance set forth in Exhibit E hereto, (b) the expiration of the Inspection Period, if Owner does not provide Company written notice of any material defects within such Inspection Period or (c) Owner’s commercial or beneficial use of the Network, the Network will be deemed accepted by Owner and any installation or craftsmanship defects then existing will be deemed waived by Owner.
6.13 No Other Warranties. THE FOREGOING ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY COMPANY WITH RESPECT TO THE NETWORK HARDWARE AND THE INSTALLATION THEREOF AND ARE IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.14. Non-Exclusive Access. Owner is not restricted by this Agreement from allowing any competitive local exchange carrier (“CLEC”) or other service provider to have access to the Owner’s Residents. Residents may select services and the Owner shall not, in any manner, inform Owner’s Residents that they are restricted to using only Company as their service provider.
6.15. Non-Waiver. No course of dealing or failure of a Party to strictly enforce any term, right or condition hereunder will be construed as a waiver of such term, right or condition.
| Page 7 of 15 | Network Service Agreement |
6.16. Notices. All notices, demands and invoices for payments required or permitted herein shall be in writing and shall be deemed to have been duly given or made (a) when delivered, if by hand, (b) three days after being sent, postage prepaid, if by registered or certified mail, or (c) when delivered, if by a recognized overnight delivery service, in each case directed as follows:
| To Company: | ELAUWIT CONNECTION, INC. | |
| Attn: Chief Executive Officer | ||
| 1520 Locust Street | ||
| Suite 901 | ||
| Philadelphia, PA 19102 | ||
| To Owner: | SEE “OWNER NOTICE INFORMATION” SET | |
| FORTH IN SECTION A, ABOVE |
Any Party may designate a change of address, or require that notices be provided to additional persons, upon written notice to and received by the other Party.
6.17. Publicity/Trademark Licenses. Neither Party may use the other Party’s name, trademarks, trade names or the name of any affiliate or subsidiary of the other, or use any photographs or likeness of the Property, personnel, or assets of the other in press releases or advertising without such other’s prior written consent. Each Party shall submit to the other(s) for written approval, prior to publication, all press releases that mention or display the name or marks of such other(s) or contain language from which a connection to said name and/or mark may be inferred. No licenses, expressed or implied, under any patents, copyrights, trademarks, service marks, or trade secrets, are granted to either Party by the other Party unless otherwise agreed to herein.
6.18. Regulatory Approvals. All regulated services shall be provided in accordance with applicable laws, tariffs and regulations, and this Agreement shall at all times be construed to be consistent with those laws, tariffs and regulations. In the event this Agreement or any of the provisions herein, or the operations contemplated, are determined by Parties or found by a court or government agency having jurisdiction to be inconsistent with or contrary to any such law, tariff or regulation, that law, tariff or regulation shall be deemed to control and, if commercially practicable, this Agreement shall be regarded as modified accordingly, and shall continue in full force and effect as so modified. If such modified Agreement is not commercially practicable in the opinion of either Party in its sole discretion, the Parties agree to meet promptly and discuss any necessary amendments or modifications to this Agreement. If the parties are unable to agree on necessary amendments or modifications in order to comply with the law, tariff or regulation, then either Party may terminate this Agreement by giving sixty (60) days written notice to the other Party.
Owner acknowledges that the Company could be regulated by the Federal Communications Commission and appropriate state public service commissions. In the event of a change in the laws, rules, regulations or tariffs applicable to the Company’s services under this Agreement, which change results in a conflict with any of the terms, covenants and conditions of this Agreement, such laws, rules, regulations and tariffs shall control, and, if commercially practicable, this Agreement shall be regarded as modified accordingly, and shall continue in full force and effect as so modified. If such modified Agreement is not commercially practicable in the opinion of either Party in its sole discretion, the Parties agree to meet promptly and discuss any necessary amendments or modifications to this Agreement. If the parties are unable to agree on necessary amendments or modifications in order to comply with the law, tariff or regulation, then either Party may terminate this Agreement by giving sixty (60) days written notice to the other Party.
6.19. Severability. If any provision of this Agreement is determined to be invalid, such invalidity will not invalidate the entire Agreement, but rather the entire Agreement will be construed as if it did not contain the particular invalid provision(s), and the rights and obligations of Owner and Company will be construed and enforced accordingly.
6.20. Termination/Default. In the event a Party defaults on any of its obligations under this Agreement, and the default remains uncured for thirty (30) days after the non-defaulting Party gives written notice to the defaulting Party specifying the default, then the non-defaulting Party may terminate this Agreement. However, if the alleged default is not reasonably curable within the thirty (30) day period, the defaulting Party shall have a reasonable period of time to cure the default if it commences the cure within the thirty (30) day period, or such additional time as is reasonable under the circumstances, so long as the defaulting Party has commenced to cure such default within the 30-day period and is diligently pursuing the same to conclusion.
| Page 8 of 15 | Network Service Agreement |
In the event the Company shall cease business operations or otherwise default in the delivery of NSA Services, Owner shall have the right to terminate this Agreement.
In the event Owner shall default in payment of any NSA Service Fees, Company in addition to all other rights and remedies to which it may be entitled, may terminate the NSA Services without further notice to Owner.
Either Party may terminate this Agreement immediately upon giving written notice to the other Party if (i) the other Party becomes insolvent, or (ii) the other Party makes an assignment for the benefit of creditors or files a petition for reorganization, or (iii) a petition in bankruptcy is filed by or against the other Party. In this event, the Company shall cooperate with Owner to provide the Services to the Project for up to 120 days as may be deemed necessary by Owner (the “Transition Period”), and Owner shall cooperate with the Company during the Transition Period to transfer any agreements for programming and bandwidth for NSA Services to Owner. Company shall provide copies of any agreements for programming and bandwidth for NSA Services to Owner upon Owner’ request. Owner shall also reimburse the Company for any reasonable out-of-pocket costs associated with the Transition Period, not to exceed twenty percent (20%) of the NSA Services Fee for the Transition Period.
Upon the occurrence of any default under any payment obligation of Owner pursuant to Article 5.3 hereof, or in the event of any other uncured event of default, Company shall have all the right to immediately suspend the NSA Services.
If the Company commences an action or arbitration proceeding for collection of amounts owed the Company by Owner under this Agreement, Owner shall be responsible for all of Company’s collection costs, including the average NSA Service Fee from the Projected Service Commencement Date to the time of default multiplied by the remaining months of the Initial Term, reasonable attorneys' fees, court costs and disbursements, incurred in enforcing the terms of this Agreement.
In addition to any other rights of Owner to terminate this Agreement, Owner may terminate this Agreement at any time, without cause, by giving Company at least 60 days' notice of its intent to terminate under this Section. If (i) Owner terminates this Agreement for any reason other than Company’s material, uncured breach, or (ii) if this Agreement is not assumed in writing by any assignee or successor of Owner (regardless of whether such assignee or successor acquires the Property by purchase, transfer, operation of Laws, or otherwise), then Owner shall pay to Company, within 30 days after the date of Company’s invoice therefor, an amount equal to (a) any one-time termination fees actually incurred by Company with regards to termination of service provider contracts (without markup) at the Property, provided that Owner may, in its sole discretion, elect to take assignment of such service provider contracts rather than paying the one-time non-terminable fees, in which case Company shall thereafter immediately assign the contracts to Owner, plus (b) 25% of remaining NSA Unit Services Fees owed in the Initial Term.
6.21. Entire Agreement. The terms and Provisions of this Agreement, including any and all appendices hereto, constitute the entire agreement between Owner and the Company concerning the subject matter hereof. The provisions of this Agreement supersede all prior oral and written quotations, communications, promises, agreements and understandings of the Parties, if any, with respect to the subject matter hereof. Except as otherwise provided herein, this Agreement can be modified only by a written amendment executed by duly authorized representatives of the Parties.
6.22. Signatories. Each Party to this Agreement represents and warrants to the other Party that its signatory is familiar with this Agreement and warrants that each signatory has the legal authority to enter into this Agreement on behalf of the respective Party.
| Page 9 of 15 | Network Service Agreement |
6.23. Dispute Resolution. In the event of a dispute between the Parties arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement and with respect to the performance by either Party under this Agreement:
| a. | The Parties shall first endeavor to settle the dispute through direct discussions. |
| b. | If the dispute cannot be settled through direct discussions, the Parties shall endeavor to settle the dispute by mediation, using the Mediation Rules of the American Arbitration Association then in effect. The mediation shall be held in Wilmington, DE. A request for mediation shall be submitted in writing to the other Party to the Agreement. The request for mediation may be made at the same time as the filing of a demand for arbitration. In that event, mediation shall proceed before the arbitration and the arbitration proceeding shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the Parties or court order. The Parties shall share the mediator’s fee and any filing fees equally |
| c. | If the dispute cannot be settled by mediation, then the dispute shall be ultimately resolved by arbitration, using the Arbitration Rules of the American Arbitration Association currently in effect. The arbitration shall be held in Wilmington, DE. A demand for arbitration shall be submitted in writing to the other Party to the Agreement and shall be made before the date when institution of legal or equitable proceedings based on such claim would be barred by the applicable statute of limitations. Attorneys’ fees and costs of the arbitration shall be borne by the non-prevailing party to the arbitration. |
Notwithstanding any of the foregoing, nothing herein shall prohibit either Party from seeking temporary equitable relief from a court of law for the purpose of preserving the status quo, pending the outcome of the dispute resolution processes set forth above. Each Party hereby submits to the exclusive jurisdiction of the state and federal courts located in Wilmington, DE, whether for the purpose of any action filed to obtain such temporary equitable relief, or for any other purpose.
Unless otherwise agreed to in writing, Company shall continue to perform its obligations under this Agreement during dispute resolution proceedings, on the condition that that Owner continues to make payments in accordance with this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date.
| ELAUWIT CONNECTION, INC. | ||
| By: | ||
| Barry Rubens | ||
| Chief Executive Officer | ||
| [ ]: | ||
| By: | ||
| __________________________________________(name) | ||
| __________________________________________(title) | ||
| Page 10 of 15 | Network Service Agreement |
EXHIBIT A
STATEMENT OF WORK
[insert statement of work and BOM]
Mutually agreed upon statement of work and BOM
| Page 11 of 15 | Network Service Agreement |
EXHIBIT B
SERVICE LEVEL OBJECTIVES
| Page 12 of 15 | Network Service Agreement |
EXHIBIT C
ACCEPTABLE USE POLICY
| Page 13 of 15 | Network Service Agreement |
EXHIBIT D
Telecommunications Standards and Requirements for NSA Communities
| Page 14 of 15 | Network Service Agreement |
EXHIBIT E
Certificate of Acceptance
| Page 15 of 15 | Network Service Agreement |
Exhibit 10.8
INTERNET SERVICE AGREEMENT
THIS INTERNET SERVICE AGREEMENT (the “Agreement” or “ISA“) is made and entered into as of the Effective Date set forth and defined below, by and between ELAUWIT CONNECTION, INC. (“Elauwit” and “Hardware Owner” and “Provider”) having its principal office at 1520 Locust Street, Suite 901, Philadelphia, PA 19102 and Property Owner, as set forth and defined below, each referred to herein individually as “Party” and collectively “the Parties.” For good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:
A. Defined Terms and Fundamental Agreement Provisions
|
Effective Date of Agreement:
Owner of Property: (“Property Owner”)
|
____/____/_______
_______________________________________ (legal entity) |
|
Property Owner Notice Information: (“Property Owner Notice Information”)
|
_______________________________________ (legal entity) Attn: __________________________________ _______________________________________ (street address) _______________________________________ (city, state ZIP)
|
|
Property Owner Invoicing Point of Contact: (Property Owner Invoicing Contact)
|
_______________________________________ (legal entity) Attn: __________________________________ _______________________________________ (street address) _______________________________________ (city, state ZIP) _______________________________________ (email)
|
|
Real Estate Property Name and Address: (“Property”)
|
_______________________________________ (name) _______________________________________(street address) _______________________________________ (city, state ZIP)
|
|
Total Units: |
______ Units |
|
Target Service Commencement Date: (“Projected Service Commencement Date”)
|
____/_____/______ |
|
Initial Term of Agreement: (“Initial Term”) |
__ months from Projected Service Commencement Date |
|
ISA Services to be Provided: (“ISA Services”)
(Note: ISA Services included under this Agreement are designated with an “X”)
ISA Services (cont.)
|
¨ Internet Service
¨ Internet Managed Support – wired and wireless, if available (including common area wireless and Property-wide wireless)
¨ Redundant/Backup Internet Service
¨ Wireless Internet (WiFi) Services
¨ Wired Ethernet Services
¨ Resident Internet Service Speed – 200/200Mbps per account
|
|
Other Services to be Provided: (“Other Services”)
|
¨ __________________________________________ __________________________________________
¨ __________________________________________ __________________________________________ |
|
Monthly per Unit Fee for ISA Services:
Monthly Fee for ISA Services: |
ISA Unit Service Fee: $ (monthly per unit)
Commencing on the Projected Service Commencement Date, Property Owner shall pay Provider the ISA Unit Service Fee multiplied by the Total Unit count.
|
|
Monthly Fees for Other Services: (“Other Services Fees”)
Property Owner Provided Cabling: |
______________________________: $____ per _____
______________________________: $____ per _____
[To be determined] |
B. Remaining Agreement Provisions
| 1. | Incorporation of Defined Terms and Fundamental Agreement Provisions. The terms defined and otherwise set forth above in Section A of this Agreement are incorporated fully as material terms of the Parties’ agreement set forth herein. Capitalized but undefined terms appearing in this Section B of this Agreement shall have the meaning set forth in Section A, above. |
| 2. | Term. The Initial Term of this Agreement shall be as set forth in Section A above, unless earlier terminated pursuant to the provisions set forth herein. This Agreement shall automatically renew at the end of the Initial Term, and any subsequent renewal term, for an additional term of one year (“Renewal Term”) unless any Party gives the others written notice of termination at least 90 days prior to the end of the Initial or Renewal Term. |
| 3. | Appointment of Elauwit as Customer Education Representative. Property Owner appoints Elauwit as its representative for the purpose of providing customer education and self-help information related to the ISA Services at the Property. Any materials distributed for such purposes will be provided to Property Owner before the materials are released. Property Owner may create and distribute its own materials related to the ISA Services; provided, however, that Property Owner shall first obtain Elauwit’s approval of any such materials. |
| 4. | Elauwit’s Obligations. |
4.1 Facilities. Subject to the terms and conditions set forth herein, Elauwit shall consult with Property Owner regarding the design, installation and testing plans of the fiber optic and copper distribution network, network equipment and other facilities within the Property necessary for the provision of the ISA Services to each individual Resident space within the Property (collectively, the “Facilities”).
4.2 ISA Services. Elauwit will provide the ISA Services to Property Owner and Residents of the Property (“Residents”). Upon Property Owner’s request, Elauwit shall reasonably cooperate with Property Owner in terminating for cause any ISA Services being provided to a Resident. Internet speeds will be delivered via a “best efforts” network, meaning that all Residents obtain a maximum variable bit rate and delivery time, depending on the current traffic load. Elauwit and Property Owner shall periodically review bandwidth to determine usage at the Property. The Internet speed noted in Section A, above, is for wired Ethernet services. Wireless speeds will largely depend on a combination of the end user device being utilized, the type of wireless access points deployed, and the bandwidth provided.
4.3 Other Services. Elauwit shall be entitled to market to Residents of the Property such Other Services (if any) as are set forth in Section A, above.
4.4 Ongoing Support and Maintenance Services. Elauwit shall provide to Property Owner the following ongoing support, maintenance, and related services in connection with the Facilities, ISA Services, and Other Services (if any): (1) maintenance and repair of the Facilities, in accordance with the Service Level Objectives set forth in Exhibit B to this Agreement, which maintenance shall include two semi-annual visits to Property; (2) coordination and contracting with third party providers for bandwidth, to the extent set forth in Section A, above; (3) customer services activities, including but not limited to service activations, changes and deletions, bill inquiries, product and service inquiries, and response to service tickets; (4) interaction and training of Property Owner office personnel on the ISA Services and Other Services (if any), basic operation of the Facilities, and location of the Facilities; (5) administration of billing and collection for Other Services (if any) as appropriate; (6) maintain by telephone, internet, and email, continual twenty-four hour hotline availability for service issues, trouble-shooting and response to service tickets; (7) development and administration of management reports as required in this Agreement, or as may reasonably be requested by Property Owner; and (8) provide outage and resolution notification to Property Owner.
4.5 Service Level Objectives. Elauwit’s delivery of the ISA Services and Other Services (if any) under this Agreement shall be governed by and conform to the Service Level Objectives set forth in Exhibit B to this Agreement. These objectives may be added to or modified based on the mutual written consent of the Parties.
4.6 Future Services. Elauwit will reasonably cooperate with Property Owner to bring future advanced services to the Property, taking into account Elauwit’s business plan, the Facilities’ architecture and capabilities, licensing availability, and competitive and commercial feasibility; provided, however, that the provision of any such future services shall be subject to fees in addition to those set forth in this Agreement and shall be the subject of a separate written agreement to be entered into by the Parties.
4.7 Service & Repairs. The Facilities shall be serviced, repaired or replaced by Elauwit to the extent necessary to maintain service to Property Owner. Any part of the Facilities hereunder which is under warranty by the original equipment manufacturer shall be serviced, repaired or replaced by Elauwit to the extent necessary to maintain service to Property Owner. In the event of damage to the Facilities caused by anyone other than Elauwit, or Elauwit’s subcontractors, Property Owner shall be responsible for labor and material costs incurred by Elauwit to restore ISA Services. Elauwit’s labor cost for work performed under this Section 4.7 shall not exceed $125.00 per hour except for work related to the repair of fiber optic cabling. Elauwit’s labor cost for repair of fiber optic cabling shall not exceed $200.00 per hour.
| 5. | Hardware Owner’s Obligations. Hardware Owner shall provide funding for the purchase of the network hardware (the “Funding”) described in Part 2 of Exhibit A, the “Network Hardware”. In consideration for the provision by Hardware Owner of the Funding, the Network Hardware shall at all times remain the property of Hardware Owner. Upon expiration or termination of this Agreement at the end of the Initial or Renewal Term or otherwise, Hardware Owner shall have the absolute right to enter the Property and repossess the Network Hardware. Property Owner shall provide Hardware Owner reasonable access to the Property for purposes of removing all items of Network Hardware. Property Owner shall also provide Hardware Owner reasonable access to the Property for purposes of inspecting the Network Hardware during the term of this Agreement. Should Elauwit elect to finance the Network Hardware through a 3rd party (“Hardware Financier”), Elauwit shall notify the Property Owner prior to the Projected Service Commencement Date of its decision to use a Hardware Financier, and if used, the Hardware Financier’s legal entity name, address, and contact information for its primary representative. Elauwit may assign its rights as Hardware Owner to Hardware Financier at its sole discretion upon notice to the Property Owner. |
| 6. | Property Owners’ Obligations. |
6.1 Right of Access. Property Owner shall provide Elauwit reasonable access to Property for the purpose of marketing of Services, conducting customer satisfaction surveys and performing any and all work as deemed necessary by Elauwit or by its employees, agents, or contractors for the operation of the Facilities. In the event Elauwit dispatches a technician in response to a service ticket and the technician is unable to obtain access to the area(s) necessary to respond to the underlying problem, Elauwit may, in addition to all other charges applicable under this Agreement, charge Property Owner a trip fee of up to $80, provided that the Property staff and/or affected Resident were notified of the scheduled visit in advance.
6.2 IT Equipment Rooms. Property
Owner shall ensure that all IT equipment rooms within the Property necessary for the Provider’s performance of this Agreement shall
comply with the Telecommunications Standards and Requirements for ISA Communities.
6.3 ISA Service Fees. The monthly fees charged to Property Owner by Elauwit for the ISA Services provided hereunder are set forth in Section A, above, and are inclusive of federal, state, and local taxes or fees, as may be applicable, for units within the Property either receiving or capable of receiving ISA Services from Elauwit.
The ISA Service Fees set forth in Section A, above, are based upon the Internet bandwidth/circuit costs required to be provided by the Elauwit hereunder and available at the Projected Service Commencement Date, and therefore are due and payable by Property Owner regardless of the number of Residents occupied or available for occupancy at the Projected Service Commencement Date. Notwithstanding the foregoing, the Provider may agree with Property Owner to provide ISA Services to the Property in advance of the Projected Service Commencement Date, in which case the fees for such ISA Services may be invoiced by the Elauwit upon commencement of such ISA Services and payable by Property Owner in accordance with Section B.6.4, below.
6.4 Billing and Collection of ISA Service Fees. Elauwit will invoice Property Owner one month in advance for the ISA Services. The due date for payments shall be thirty (30) days after the invoice date. Any past due ISA Service Fees shall result in a late fee payable to Elauwit equal to the lesser of (a) 1.5% per month, or (b) the maximum rate allowed by law, of any outstanding balance until said balance shall be paid in full.
6.5 Changes to ISA Service Fees. Any exogenous changes to Elauwit’s costs, in effect at the Effective Date, that occur as a result of (a) increases or decreases in government fees or taxes, and/or (b) regulatory fees or assessments from the content provider shall be passed to Property Owner by the Elauwit in the course of monthly invoicing for services.
In addition to the foregoing, upon the first anniversary of the Projected Service Commencement Date, Elauwit may increase the ISA Unit Service Fee up to three percent (3%) once each agreement year during the remaining term of this Agreement.
6.6 Acceptable Use Policy. All Residents must abide by Elauwit’s “Acceptable Use Policy” or other such terms and conditions that shall govern the use of the Services. Failure to abide by these policies may result in the disconnection of violating Services. The “Acceptable Use Policy” is attached hereto as Exhibit C.
6.7 Other Services – Fees and Billing. Elauwit shall offer such Other Services, if any, as are set forth in Section A, above, directly to Residents of the Property, which will be separate from the ISA Services described above. All such Other Services shall be billed directly and separately to Residents by Elauwit and are payable by the respective Residents who subscribe to such services and Property Owner shall have no liability for the payment of any such fees. Elauwit reserves the right to disconnect Other Services to any individual resident that has not paid their Other Services charges.
6.8 Property Owner Provided Cabling. Property Owner shall provide the cabling set forth in Section A, above. Except as otherwise provided herein, Property Owner shall retain Property Ownership of Property Owner provided cabling and shall be responsible for the cost, operation, maintenance, repair, and replacement of same.
7. General.
7.1 Assignment. This Agreement may be assigned or transferred by any Party with written notification to the other Parties.
7.2 Compliance with Laws. The Parties agree to comply with all relevant applicable federal, state, county, and local laws, ordinances, regulations, and codes (including the identification and procurement of required permits, certificates, approvals, and inspections) in their performance under this Agreement.
7.3. Confidential Information. The Parties agree that the pricing included in this Agreement, and such other information as the Parties may agree in writing, shall remain confidential and be treated accordingly between the Parties. No party shall make any press release or other public disclosure or announcement with respect to this Agreement without the prior consent of the other Party and the prior approval of the other Parties, not to be unreasonably withheld, of the content and language of such release or announcement.
7.4. Counterparts. This Agreement may be executed in one or more counterpart or duplicate copies and by facsimile signature, and any signed counterparts, duplicate or facsimile copy shall be the equivalent to a signed original for all purposes.
7.5. Force Majeure. No Party shall be held liable for any reasonable delay or failure in performance of any part of this Agreement because of any cause or circumstances beyond its control such as, but not limited to, acts of God, lightning, explosion, fire, power failure, strikes, terrorism, newly enacted laws or regulations, the failure of upstream suppliers of services, or any other cause arising without its actual fault (collectively, “Force Majeure” conditions). In the event of a Force Majeure condition affecting any Party, the Parties shall cooperate as appropriate to perform their obligations under this Agreement to the extent reasonably practical. Notwithstanding the foregoing, events of Force Majeure shall not excuse any Party from its obligations, if any, to make monetary payments hereunder.
7.6. Governing Law. This Agreement, including questions as to jurisdiction and Property, shall be interpreted and governed by the laws of the State of Delaware, without regard to its conflict of laws principles.
7.7. Indemnification. The Provider shall not be liable to Property Owner for interruption of service for any cause greater than the amount of the then current month’s ISA Service Fee. Each Party agrees to indemnify, defend, and hold harmless the other Parties (including its officers, directors, principals, assigns, successors, affiliates, agents, and employees) from and against any and all liability, loss, damage, claim or expense (including reasonable attorneys’ fees and court costs), incurred by the other Parties in connection with: (a) any claim, demand, or suit for damages, injunction or other relief to the extent it is caused by or results from the negligence, gross negligence or intentional misconduct (including, without limitation, breach or nonperformance of this contract) of the indemnifying Party (including any of its agents, or subcontractors); and (b) any actual or alleged infringement of any third Party’s trade secrets, trademark, copyright, patent or other intellectual Property rights by the indemnifying Party.
In the event that a claim arises under this Section B.7.7, the indemnifying Party agrees to provide the indemnified Party with sufficient notice of any claim, to inform the indemnified Party of any subsequent written communication regarding the claim and to fully cooperate with the indemnified Party in defense of the claim.
7.8. Independent Contractor. Each Party will conduct its business at its own initiative, responsibility, and expense. Individuals employed by each Party are not employees of the other(s), and the employing Party assumes full responsibility for the acts and omissions of its own employees acting in the course and scope of employment. Each Party has and retains the right to exercise full control of and supervision over employment, direction, compensation, and discharge of its employees, including compliance with Social Security withholding, Workers’ Compensation, unemployment, payroll taxes, and all other taxes and regulations governing such matters. The Parties agree and acknowledge that Property Owner’s Property and premises are not the premises or a work location of the Provider.
Nothing herein contained shall constitute a partnership between or joint venture by the Parties hereto or constitute any Party the agent of the others. No Party shall hold itself out contrary to the terms of this Section B.7.8 and no Party shall become liable by any representation, act or omission of the other contrary to the provisions hereof. This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not.
7.9. Insurance. Elauwit and Property Owner agrees to maintain as a minimum, at all times during the Agreement Term, the following insurance coverage and any other additional insurance and/or bonds required by law:
Commercial General Liability insurance with minimum limits of $1,000,000 per occurrence for bodily injury (or death); Property Damage Liability with limits of at least $1,000,000 per occurrence; Personal Injury Liability with limits of at least $1,000,000 per occurrence; and $2,000,000 General Policy aggregate (applicable to Commercial General Liability Policies).
Upon a Party’s request, the other Party agrees to furnish certificates or other acceptable proof of the foregoing insurance. Elauwit and Property Owner warrant that they are self-insured and meet or exceed all equivalent insurance requirements stated herein and those that are required by the laws in the states in which they conduct business.
Elauwit will provide the appropriate proof of insurance to Property Owner with an insurance policy rider or equivalent proof of coverage for the individual Property or project subject to this Agreement.
7.10. Limitation of Liability. Elauwit’s liability, if any, to Residents who are Elauwit’s customers will be governed exclusively in the case of regulated services by Elauwit’s applicable tariffs, price lists, or comparable documents on file with the applicable state regulatory agency, or in the case of non-regulated services by the applicable contract with the Resident.
IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANOTHER PARTY FOR INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, WHETHER BY TORT OR CONTRACT.
No Party makes any warranty to another Party except as expressly set forth in this Agreement and any of its exhibits. The express undertakings and warranties, if any, given by the Parties in this Agreement are in lieu of all other warranties, conditions, terms, undertakings and obligations, whether express or implied by statute, common law, custom, trade usage, course of dealing, or in any other way. All of these are excluded to the fullest extent permitted by law.
7.11. Non-Exclusive Access. Property Owner is not restricted by this Agreement from allowing any competitive local exchange carrier (“CLEC”) or other service provider to have access to the Property Owner’s Residents. Residents may select services and the Property Owner shall not, in any manner, inform Property Owner’s Residents that they are restricted to using only Elauwit as their service provider.
7.12. Non-Waiver. No course of dealing or failure of a Party to strictly enforce any term, right or condition hereunder will be construed as a waiver of such term, right or condition.
7.13. Notices. All notices, demands and invoices for payments required or permitted herein shall be in writing and shall be deemed to have been duly given or made (a) when delivered, if by hand, (b) three days after being sent, postage prepaid, if by registered or certified mail, or (c) when delivered, if by a recognized overnight delivery service, in each case directed as follows:
| To Elauwit: | ELAUWIT CONNECTION,INC. | |
| Attn: Chief Executive Officer | ||
| 1520 Locust Street | ||
| Suite 901 | ||
| Philadelphia, PA 19102 | ||
| To Property Owner: | SEE “PROPERTY OWNER NOTICE INFORMATION” SET | |
| FORTH IN SECTION A, ABOVE |
Any Party may designate a change of address, or require that notices be provided to additional persons, upon written notice to and received by the other Parties.
7.14. Publicity/Trademark Licenses. No Party may use any other Party’s name, trademarks, trade names or the name of any affiliate or subsidiary of the other, or use any photographs or likeness of the Property, personnel, or assets of the other in press releases or advertising without such other’s prior written consent. Each Party shall submit to the other(s) for written approval, prior to publication, all press releases that mention or display the name or marks of such other(s) or contain language from which a connection to said name and/or mark may be inferred. No licenses, expressed or implied, under any patents, copyrights, trademarks, service marks, or trade secrets, are granted to any Party by the other Parties unless otherwise agreed to herein.
7.15. Regulatory Approvals. All regulated services shall be provided in accordance with applicable laws, tariffs and regulations, and this Agreement shall at all times be construed to be consistent with those laws, tariffs and regulations. In the event this Agreement or any of the provisions herein, or the operations contemplated, are determined by the Parties or found by a court or government agency having jurisdiction to be inconsistent with or contrary to any such law, tariff or regulation, that law, tariff or regulation shall be deemed to control and, if commercially practicable, this Agreement shall be regarded as modified accordingly, and shall continue in full force and effect as so modified. If such modified Agreement is not commercially practicable in the opinion of any Party in its sole discretion, the Parties agree to meet promptly and discuss any necessary amendments or modifications to this Agreement. If the Parties are unable to agree on necessary amendments or modifications in order to comply with the law, tariff or regulation, then any Party may terminate this Agreement by giving sixty (60) days written notice to the other Parties.
Property Owner acknowledges that the Elauwit could be regulated by the Federal Communications Commission and appropriate state public service commissions. In the event of a change in the laws, rules, regulations or tariffs applicable to the Elauwit’s services under this Agreement, which change results in a conflict with any of the terms, covenants and conditions of this Agreement, such laws, rules, regulations and tariffs shall control, and, if commercially practicable, this Agreement shall be regarded as modified accordingly, and shall continue in full force and effect as so modified. If such modified Agreement is not commercially practicable in the opinion of any Party in its sole discretion, the Parties agree to meet promptly and discuss any necessary amendments or modifications to this Agreement. If the Parties are unable to agree on necessary amendments or modifications in order to comply with the law, tariff or regulation, then any Party may terminate this Agreement by giving sixty (60) days written notice to the other Parties.
7.16. Severability. If any provision of this Agreement is determined to be invalid, such invalidity will not invalidate the entire Agreement, but rather the entire Agreement will be construed as if it did not contain the particular invalid provision(s), and the rights and obligations of the Parties will be construed and enforced accordingly.
7.17. Termination/Default. In the event a Party defaults on any of its obligations under this Agreement, and the default remains uncured for thirty (30) days after the non-defaulting Party gives written notice to the defaulting Party specifying the default, then the non-defaulting Party may terminate this Agreement. However, if the alleged default is not reasonably curable within the thirty (30) day period, the defaulting Party shall have a reasonable period of time to cure the default if it commences the cure within the thirty (30) day period, or such additional time as is reasonable under the circumstances, so long as the defaulting Party has commenced to cure such default within the 30-day period and is diligently pursuing the same to conclusion.
In the event Elauwit shall cease business operations or otherwise default in the delivery of ISA Services, and Elauwit has previously elected to finance network hardware through a Hardware Financier, Hardware Financier shall have the right to assume Elauwit’s rights and obligations under this Agreement upon notice to Owner.
In the event Property Owner shall default in payment of any ISA Service Fees, Elauwit in addition to all other rights and remedies to which it may be entitled, may terminate the ISA Services without further notice to Property Owner.
A default by Property Owner under the Network Construction Agreement entered into between Elauwit and Property Owner shall constitute a default under this ISA Services Agreement.
Any Party may terminate this Agreement immediately upon giving written notice to the other Parties if (i) any other Party becomes insolvent, (ii) any other Party makes an assignment for the benefit of creditors or files a petition for reorganization, or (iii) a petition in bankruptcy is filed by or against any other Party. In this event, the Provider shall cooperate with Property Owner to provide the ISA Services for up to 120 days as may be deemed necessary by Property Owner (the “Transition Period”), and Property Owner shall cooperate with Elauwit during the Transition Period to transfer any agreements for programming and bandwidth for ISA Services to Property Owner. Elauwit shall provide copies of any agreements for programming and bandwidth for ISA Services to Property Owner upon Property Owner’ request. Property Owner shall also reimburse the Provider for any reasonable out-of-pocket costs associated with the Transition Period, not to exceed twenty percent (20%) of the ISA Services Fee for the Transition Period.
Upon the occurrence of any default under any payment obligation of Property Owner pursuant to Section B.6.3 hereof, or in the event of any other uncured event of default, Elauwit shall have all right to immediately suspend the ISA Services and Property Owner acknowledges and agrees that Hardware Owner shall have all the rights and remedies of a secured creditor under the provisions of the Uniform Commercial Code, as may be amended from time to time. Property Owner hereby irrevocably authorizes Hardware Owner to file UCC-1 Financing Statements, or any other document or instrument reasonably necessary or desirable in order to evidence and perfect Hardware Owner’s security interest in the Network Hardware.
Upon the occurrence of any default under any payment obligation of Customer pursuant to Section B.6.3 hereof, or in the event of any other uncured event of default, Hardware Owner may exercise any one or more of the following rights and remedies:
Repossess the Network Hardware.
| a. | Hardware Owner shall have full power to repossess, sell at public or private sale, lease, transfer, or otherwise deal with the Network Hardware or proceeds thereof. All expenses relating to the removal and disposition of the Network Hardware, shall be the responsibility of Property Owner. “Network Hardware” shall include (i) all accessions, attachments, accessories, tools, parts, supplies, replacements of and additions to the Network Hardware whether added now or at any time hereafter, and (ii) all proceeds, including insurance proceeds, from the sale, destruction, loss or other disposition of any of the Network Hardware. |
| b. | Other Rights and Remedies. Hardware Owner shall have all the rights and remedies of a secured creditor under the provisions of the Uniform Commercial Code, as may be amended from time to time. |
If Elauwit and/or Hardware Owner commences an action or arbitration proceeding for collection of amounts owed the Provider by Property Owner under this Agreement, Property Owner shall be responsible for all of Provider’s collection costs, including the average ISA Service Fee from the Projected Service Commencement Date to the time of default multiplied by the remaining months of the Initial Term, reasonable attorneys' fees, court costs and disbursements, incurred in enforcing the terms of this Agreement.
7.18. Entire Agreement. The terms and Provisions of this Agreement, including any and all appendices hereto, constitute the entire agreement between Property Owner, on the one hand, and Elauwit and Hardware Owner, on the other hand, concerning the subject matter hereof insofar as it pertains to the Network Hardware and the Facilities. The provisions of this Agreement supersede all prior oral and written quotations, communications, promises, agreements and understandings of the Parties, if any, with respect to the subject matter hereof. Except as otherwise provided herein, this Agreement can be modified only by a written amendment executed by duly authorized representatives of the Parties.
7.19. Signatories. Each Party to this Agreement represents and warrants to the other Party that its signatory is familiar with this Agreement and warrants that each signatory has the legal authority to enter into this Agreement on behalf of the respective Party.
7.20. Dispute Resolution. In the event of a dispute between the Parties arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement and with respect to the performance by any Party under this Agreement:
| a. | The Parties shall first endeavor to settle the dispute through direct discussions. |
| b. | If the dispute cannot be settled through direct discussions, the Parties shall endeavor to settle the dispute by mediation, using the Mediation Rules of the American Arbitration Association then in effect. The mediation shall be held in Philadelphia, Pennsylvania. A request for mediation shall be submitted in writing to the other Parties. The request for mediation may be made at the same time as the filing of a demand for arbitration. In that event, mediation shall proceed before the arbitration and the arbitration proceeding shall be stayed pending mediation for a period of sixty (60) days from the date of filing, unless stayed for a longer period by agreement of the Parties or court order. The Parties shall share the mediator’s fee and any filing fees equally |
| c. | If the dispute cannot be settled by mediation, then the dispute shall be ultimately resolved by arbitration, using the Arbitration Rules of the American Arbitration Association currently in effect. The arbitration shall be held in Philadelphia, Pennsylvania. A demand for arbitration shall be submitted in writing to the other Party to the Agreement and shall be made before the date when institution of legal or equitable proceedings based on such claim would be barred by the applicable statute of limitations. Attorneys’ fees and costs of the arbitration shall be borne by the non-prevailing party to the arbitration. |
Notwithstanding any of the foregoing, nothing herein shall prohibit any Party from seeking temporary equitable relief from a court of law for the purpose of preserving the status quo, pending the outcome of the dispute resolution processes set forth above. Each Party hereby submits to the exclusive jurisdiction of the state and federal courts located in Philadelphia, Pennsylvania, whether for the purpose of any action filed to obtain such temporary equitable relief, or for any other purpose.
Unless otherwise agreed to in writing, Elauwit shall continue to perform its obligations under this Agreement during dispute resolution proceedings, on the condition that that Property Owner continues to make payments in accordance with this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date.
| ELAUWIT CONNECTION, INC. | ||
| By: | ||
| Barry Rubens | ||
| Chief Executive Officer | ||
| [ ]: | ||
| By: | ||
| __________________________________________(name) | ||
| __________________________________________(title) | ||
EXHIBIT A
PART 1 – STATEMENT OF WORK
[insert statement of work and BOM]
Mutually agreed upon statement of work and BOM
PART 2 – NETWORK HARDWARE
EXHIBIT B
SERVICE LEVEL OBJECTIVES
EXHIBIT C
ACCEPTABLE USE POLICY
Exhibit 10.9
COMMERCIAL
LEASE
(Net Lease 111)
| PARTIES | A. | PARTIES: |
| THIS LEASE made and entered into this 7th day of December 2023, by and between GREENLEAF INVESTMENT PARTNERS L091, LLC, hereinafter called “Landlord”, and ELAUWIT CONNECTION, INC., a Delaware Corporation, hereinafter called “Tenant”. | ||
| WITNESSETH | ||
| In consideration of the covenants and agreements of the respective parties herein contained, the parties hereto, for themselves, their heirs, successors, distributees, executors, administrators, legal representatives and permitted assigns, do hereby agree as follows: | ||
| PREMISES | B. | DEMISED PREMISES: |
| Landlord by these presents does hereby demise and let unto Tenant, and Tenant hereby leases and hires from Landlord, all those certain premises, together with the buildings and other improvements thereon, for the term and upon the rental and the covenants and agreements of the respective parties herein set forth. Said premises are situate, lying and being in the State of South Carolina, County of Richland, City of Columbia, (hereinafter the “Demised Premises”), and more fully described as follows: | ||
| Approximately 1,750 square feet in Suite 130 at 1700 Alta Vista Dr. Columbia, SC 29223 | ||
| TERM | C. | TERM AND DELIVERY OF PREMISES: |
| The initial term of this lease shall commence on the 1” day of January, 2023, (the commencement date) and shall end at noon on the 31st day of December, 2023. | ||
| The lease term shall automatically renew on a month-to-month basis under the terms and conditions hereof except rent which shall be one and one half times the prior month’s rent, unless notice is given by either party thirty (30) days prior to the expiration of this term. | ||
| RENT | D. | RENT: |
| 1. | Rent: Tenant covenants and agrees to pay as rental to Landlord the annual sum beginning January 1, 2023 based on the following structure: |
| Term Period | Annually | Monthly | ||||||
| 1/1 2023 — 12/31/2023 | $ | 14,000.04 | $ | 1,166.67 | ||||
| 2. | Additional Rent: “Additional Rent” shall mean and be deemed to include all sums other than the Rent payable by Tenant to Landlord under this Lease, including, but without limitation, payments with respect to Real Estate Taxes, payments with respect to Operating Expenses, Late Fees, overtime or excess service charges, damages, and interest and other costs related to Tenant’s failure to perform any of its obligations under this Lease. |
| 3. | Late Fee: In the event Tenant shall fail to pay each rental on the due date, a late charge of Five (5%) percent of the monthly rental, compounded monthly with a minimum of Twenty Five and No/100 ($25.00) Dollars per month, shall be added to the rental and paid to Landlord for each such late payment, and the same shall be treated as additional rent. |
| E. | COVENANTS AND CONDITIONS OF LEASE: |
This Lease is made on the following covenants and conditions which are expressly agreed to by Landlord and Tenant:
| 1. | Late Delivery Clause: It is further agreed and understood that if Landlord is unable to deliver possession of the demised premises to the Tenant at the commencement of the term of this Lease because of the retention of possession thereof by other parties than Landlord, or because Landlord is unable to get the demised premises ready for occupancy by Tenant, if such is required of Landlord hereunder, then Landlord shall not be liable to Tenant for damages and this Lease shall not terminate, provided however, that Tenant shall have no obligation to pay hereunder until possession of the Demised Premises is delivered to Tenant. Landlord shall use all reasonable diligence to deliver possession of the Demised Premises to Tenant at the commencement of the within term. |
| 2. | It is anticipated that possession may be had on January 1st, 2023, however, if for any reason Landlord fails to give possession of the Demised Premises on that date, then this Lease and payment of rent will commence as of the day possession is given with the further understanding that possession must be had by January 15th, 2023, or Tenant may terminate this Lease by written notice prior to the Landlord tendering possession of the Demised Premises to the Tenant. If the term of this Lease shall commence on a day other than the first day of a calendar month, rental shall be paid for the portion of the month in proportion to the monthly rental rates as herein provided and the term provided for in this Lease shall be extended so as to cause the expiration of the term to be on the last day of the last month of the term. |
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| 3. | Authorized Use: Tenant agrees not to abandon or vacate the Demised Premises and shall use the Demised premises for the following purpose, and for no other purpose whatsoever, without the written consent of Landlord at Landlord’s sole discretion first had and obtained: | |
| The Premises will be used for the business, day to day operations, and storage for hardware supplies. | ||
| Tenant shall use and occupy the Demised Premises in a careful, safe, and proper manner and shall keep the Demised Premises in a clean and safe condition in accordance with this lease and State, Federal, and local laws, ordinances, and regulations. | ||
| Tenant will not permit or suffer anything to be done nor keep anything in or about the Demised Premises which would render the insurance thereon void or voidable or cause cancellation. Tenant will not keep, use or sell, or allow to be kept, used or sold in or about the Demised Premises, any article or material which is prohibited by law or by standard fire insurance policies of the kind customarily in force with respect to premises of the same general type as those covered by this Lease, nor will Tenant allow anything to be stored that will create any problem or controversy by SCDHEC Agency. If Tenant does store goods that are or become controversial, Tenant will clean Demised Premises to the satisfaction of an environmental engineer so that a clean letter can be issued by said engineer. | ||
| Tenant shall not use or permit the use of the Premises in a manner that: (1) creates damage waste, or nuisance; (2) that is unlawful [(including, without limitation, any manner that is lawful under South Carolina law but unlawful under federal law)]; that emits any objectionable odors, sounds or vibrations, or allows any pests, insects, or vermin; that overloads the floors or impairs the structural soundness of the Premises; or in any other manner prohibited as provided throughout this Lease. |
| 4. | Insurance: |
| (a) | Landlord agrees to keep the premises fully insured (appraised value) against all perils covered under a normal fire and extended coverage insurance policy including loss of rents; however, Tenant shall, upon demand, reimburse Landlord for the cost of the premium for such insurance policy. Such payment shall be made by Tenant to Landlord not later than thirty (30) days following the date which Landlord notifies Tenant in writing. |
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| (b) | If the Demised Premises or any part thereof shall be damaged or destroyed by fire or other casualty, Landlord shall promptly repair all such damage and restore the demised premises without expense to Tenant, subject to delays due to adjustment of insurance claims, strikes and other causes beyond Landlord’s control. If such damage or destruction shall render the premises untenantable in whole or in part, the rent shall be abated wholly or proportionately as the case may be until the damage shall be repaired and the premises restored. If the damage or destruction shall be so extensive as to require the substantial rebuilding (i.e.: expenditure of fifty {50%} percent or more of the replacement cost) of the building or buildings on the Demised Premises, Landlord or Tenant may elect to terminate this Lease by written notice to the other given within thirty (30) days after the occurrence of such damage or destruction. |
| (c) | Landlord and Tenant hereby release each other from liability for loss or damage occurring on or to the leased premises or the premises of which they are a part or to the contents of either thereof, caused by fire or other hazards ordinarily covered by fire and extended coverage insurance policies and each waives all rights of recovery against the other for such loss or damage. Willful misconduct lawfully attributable to either party, whether in whole or in part a contributing cause of the casualty giving rise to the loss or damage, shall not be excused under the foregoing release and waiver. Landlord shall cause each policy carried by Landlord insuring against loss, damage or destruction by fire or other casualty and Tenant shall cause each insurance policy carried by Tenant insuring against loss, damage or destruction by fire or other casualty to be written in a manner so as to provide that the insurance company waives all rights of recovery by way of subrogation against Landlord or Tenant and no party shall be liable to the other for the amount of such loss or damage which is in excess of the applicable deductible, if any, caused by fire or any of the risks enumerated in its policies, provided that such waiver was obtainable at the time of such loss or damage. |
| (d) | Commercial general liability insurance in a form approved in the Building State (including broad form property damage coverages). The limits of liability shall not be less than Two Million Dollars ($2,000,000.00) per occurrence, which amount may be satisfied with a primary commercial general liability policy of not less than One Million Dollars ($1,000,000.00) and an excess (or “Umbrella”) liability policy affording coverage, at least as broad as that afforded by the primary commercial general liability policy, in an amount not less than One Million Dollars ($1,000,000.00). Landlord, the property manager and any mortgagees shall be included as additional insureds in said policies and shall be protected against all liability arising in connection with this Lease. All said policies of insurance shall be written as “occurrence” policies. Whenever, in Landlord’s reasonable judgment, good business practice and changing conditions indicate a need for additional amounts or different types of insurance coverage, Tenant shall, within ten (10) days after Landlord’s request, obtain such insurance coverage, at Tenant’s expense. Tenant agrees to indemnify and hold Landlord harmless of and from any and all claims of any kind or nature arising from Tenant’s use of the Demised Premises during the term hereof, and Tenant hereby waives all claims against Landlord for damage to goods, wares, or merchandise or for injury to persons in and upon the premises from any cause whatsoever, except such as might result from the negligence of Landlord or Landlord’s representatives or from failure of Landlord to perform its obligation hereunder within a reasonable time after notice in writing by Tenant requiring such performance by Landlord. |
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| (e) | Tenant will not permit said Demised Premises to be used for any purpose which would render the insurance thereon void or cause cancellation thereof. Tenant will not keep, use or sell, or allow to be kept, used or sold in or about the leased premises, any article or material which is prohibited by law or by standard fire insurance policies of the kind customarily in force with respect to premises of the same general type as those covered by this Lease. | |
| Such insurance may, at Tenant’s election, be carried under any general blanket coverage of Tenant. A renewal policy shall be procured not less than thirty (30) days prior to the expiration of any policy. Each original policy or a certified copy thereof, or a satisfactory certificate of the insurer evidencing insurance carried with proof of payment of the premium shall be deposited with Landlord. Tenant shall have the right to settle and adjust all liability claims and all claims against the insuring companies, but without subjecting Landlord to any liability or obligation. |
| 5. | Permits: Tenant shall, at its own cost and expense, secure and maintain throughout the duration of the Lease, all necessary licenses and permits from such Authorities as shall be necessary for, or incidental to, the conduct of its business in the Premises and shall comply with all laws relating to the operation of its business. Landlord does not covenant, warrant, or make any representation that any particular license or permit that may be required in connection with the operation of Tenant’s business will be granted, or if granted, will be continued in effect or renewed, and any failure to obtain, maintain, or renew such license or permit, or its revocation after issuance, shall not affect Tenant’s obligations under this Lease. |
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| 6. | Condition of the Demised Premises: Tenant has inspected and accepts the Demised Premises in the same condition they are in at the time of commencement of the term of this Lease. Tenant will at its cost and expense make any alterations and improvements in or to the Demised Premises which may be required by reason of any Federal, State, or local law, ordinance, or regulation. |
| 7. | Repair and Care of Building by Tenant: Tenant shall, throughout the initial term of this lease and any renewals and options thereof, at its own expense, maintain in good order and repair the leased premises, including the building and other improvements located thereon, except those repairs expressly required to be made by Landlord. Those Landlord repairs include: Landlord shall be responsible for structural elements and exterior surfaces of the Premises including roof and roof coverings, insulation, walls, and concrete slab at Landlord’s expense. Such repairs by Tenant shall include as applicable but not limited to, repairs to electrical and plumbing systems and fixtures, air-conditioning, heating and ventilation equipment systems (as outlined herein) loading doors, paved parking areas and drives, mowing of grass and care of shrubs. In the event the property is occupied by more than one tenant, costs for all care of common areas will be pro-rated among tenants based on square footage leased and or occupied. Tenant shall at its expense contract with a reputable firm for periodic servicing of the heating, air-conditioning and ventilation systems as recommended by the manufacturer of such equipment and shall keep on file with Landlord or its agent a copy of said contract or other substantial proof of such servicing. Tenant shall be responsible for all repairs to heating, air-conditioning, and ventilating equipment including parts and labor, repair to major components, and replacement of major components. Tenant shall not be responsible for more than $500 in maintenance repairs per occurrence. Tenant is not to exceed $1,000 annually in HVAC maintenance repairs. Tenant shall also maintain pest control (including termite) inspection and treatment of the premises as required. Tenant agrees to return said premises to Landlord at the expiration or prior termination of this lease in as good condition and repair as when received, natural wear and tear, damage by storm, fire lightning, or other natural casualty excepted. |
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| 8. | Landlord’s Right to Inspect: Landlord gives to Tenant exclusive control of the premises and shall be under no obligation to repair, replace or maintain the premises or any part thereof, but reserves the right to inspect the premises during reasonable business hours and may subsequently require Tenant, by written notice, to make any such repairs necessary, and in a good workmanship like manner, for proper and reasonable upkeep of the premises as agreed in Paragraphs 4 and 5 of this Lease. If said required work is not completed within thirty (30) days of said notice, Landlord may contract with any firm of his choice and have said work completed, the cost of which will be considered as additional rent and will be billed to Tenant and payable immediately. |
| 9. | Alteration of Demised Premises and Installation of Fixtures and Other Appurtenances: Tenant may, with consent of Landlord, at Landlord’s sole discretion, but at Tenant’s own cost and expense in a good, workmanlike manner and in accordance with applicable laws and building codes, make such alterations and repairs in the Demised Premises as Tenant may require for the conduct of its business without, however, materially altering the basic character of the Demised premises, or weakening any structure on the Demised Premises. Tenant shall have the right, without the permission of Landlord, to erect, at Tenant’s sole cost and expense, such temporary partitions, including office partitions, as may be necessary to facilitate the handling of Tenant’s business and to install electrical fixtures, additional lights and wiring and other trade appliances. Any alterations or improvements to the Demised Premises, including but not limited to partitions, all electrical fixtures, lights and wiring, shall at the option of Landlord, become the property of Landlord, at the expiration or sooner termination of this Lease. Should Landlord request Tenant to remove all or any part of the above-mentioned items, Tenant shall do so prior to the expiration of this Lease and repair the premises as described below. Temporary shelves, bins and machinery installed by Tenant shall remain the property of Tenant and may be removed by Tenant at any time; provided, however, that all covenants, including rent, due hereunder to Landlord shall have been complied with and paid. At the expiration or sooner termination of this Lease, or any renewals or extensions thereof, Tenant shall remove said shelves, bins and machinery, and repair, in good and workmanlike manner, all damage done to the Demised Premises by such removal. Tenant shall not exercise the right and privilege granted by this Paragraph 7 in such a manner as to damage or affect the structural qualities of the Demised Premises or the buildings, of which it is a part, if applicable. Before any work is begun, Tenant agrees to furnish Landlord with holdharmless agreements from all contractors protecting against mechanics liens. |
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| 10. | Payment of Taxes and Other Assessments: Landlord shall pay annually all real estate taxes on the described premises. However, Tenant shall upon demand, reimburse Landlord for all taxes and other assessments assessed or levied against the premises. Such payment shall be made by Tenant to Landlord not later than thirty (30) days following the date on which Landlord provides Tenant with written evidence of such taxes or assessments. If the final year of the Lease Term fails to coincide with the tax year, then any tax during which term ends shall be reduced by the pro-rata part of such tax beyond the Lease Term. For the purpose of this covenant, it is agreed that the Premises hereunder contain 1,750 square feet and the total area contains 40,375 square feet. Tenant’s Pro-Rata Share is (4.33%) percent. The taxes, CAM (common area maintenance) and building insurance expenses are estimated at $2.00 per square foot for 2023. These expenses are reassessed and adjusted annually. Tenant a shall pay in monthly installments along with Rent. Water is included within the CAM prorated number. |
| 11. | In the event that any documentary stamp tax, or tax levied on the rental, leasing or letting of the premises whether local, state, or federal, is required to be paid due to the execution hereof, the cost thereof shall be borne by the Tenant. |
| 12. | Subordination of Lease: Tenant’s rights under this Lease shall remain subordinate to any bona fide mortgage or deed to secure debt which is now, or may hereafter be placed, upon the Demised Premises by Landlord. Tenant shall, if requested, execute and deliver a subordination agreement. |
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| 13. | Condemnation: If the whole of the Demised Premises shall be taken by any public authority under the power of eminent domain, this Lease shall terminate as of the day possession shall be taken by such public authority, and Tenant shall pay all rental and other sums due hereunder up to that date with an appropriate refund by Landlord of such amounts thereof as shall have been paid in advance for a period subsequent to the date of the taking. If twenty-five (25°AI) percent or less of the gross leasable area of the Demised Premises shall be taken, this Lease shall terminate only with respect to the part so taken as of the day possession shall be taken by such public authority, and Tenant shall pay all rental and other sums due hereunder up to that day within appropriate refund by Landlord of such rents as may have been paid in advance for a period subsequent to the date of the taking, and thereafter, the rent shall be equitably adjusted, and Landlord shall at its expense make all necessary repairs or alterations to the basic building and exterior work so as to constitute the remainder of the Demised Premises a complete architectural unit. If more than twenty-five (25%) percent of the gross leasable area of the demised premises shall be so taken, then this Lease shall terminate with respect to the part so taken from the date possession shall be so taken by such public authority, and Tenant shall pay all rental and other sums due hereunder up to that date with an appropriate refund by Landlord of such amounts thereof as may have been paid in advance for a period subsequent to the date of taking, and either party shall have the right to terminate this Lease upon notice in writing within sixty (60) days after taking of possession. In the event that Tenant remains in possession, and if Landlord does not so terminate, all of the terms herein provided shall continue in effect except that the rent shall be equitably abated, and Landlord shall make all necessary repairs or alterations to the basic building and exterior work so as to constitute the remaining demised premises a complete architectural unit. In the event Landlord is obligated to restore the demised premises to a complete architectural unit, as above provided, such work shall not exceed the scope of work to be done by Landlord in constructing the demised premises, nor shall Landlord be required to spend for such work an amount in excess of the amount received by Landlord as damages for the part of the demised premises so taken, less any amount paid to Landlord’s mortgagee from such award. The entire compensation award, including but not limited to, all damages or compensation for diminution in value of the leasehold, reversion, and fee, shall belong to the Landlord. Tenant shall have the right to claim and recover from the condemning authority, but not from the Landlord, such compensation as may be separately awarded or recoverable by the Tenant in Tenant’s own right on account of damage to Tenant’s business by reason of the taking and for or on account of any cost or loss to which Tenant might be put in removing Tenant’s merchandise, furniture, fixtures, improvements and equipment. |
| 14. | Erection and Removal of Signs: Tenant may place suitable signs on demised premises for the purpose of indicating the nature of the business carried on by Tenant in said demised premises; provided, however, that such signs shall be in keeping with other signs in the district where the demised premises are located. Tenant agrees to exonerate, save harmless, protect and indemnify Landlord from and against any and all losses, damages, claims, suits, or actions and all costs and expenses including attorney’s fees, in connection therewith, arising from any damage or injury to persons or property caused by an erection and maintenance of such signs or parts thereof, and insurance coverage for such signs shall be included in the public liability policy which Tenant is required to furnish. The location, design, size and construction of such signs shall be approved by Landlord at Landlord’s sole discretion, prior to the erection, and shall not damage the demised premises in any manner. At the termination of this Lease, Landlord may require that Tenant remove its signs, and any damage to the demised premises caused by removal shall be promptly repaired by Tenant at Tenant’s own cost and expense. |
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| 15. | Glass Breakage and Vandalism: Tenant agrees to immediately replace broken or damaged glass with glass of comparable quality and characteristics which meet appropriate agency building code requirements, excepting breakage covered under Landlord’s normal fire and extended coverage insurance policy. Tenant shall make any repairs or replacements caused by vandalism to the demised premises or any part thereof, if said damage is not covered by Landlord’s insurance. |
| 16. | Right of Entry by Landlord: Tenant at any time during this Lease term shall permit inspection of the demised premises during reasonable business hours by Landlord or Landlord’s agents or representatives for the purpose of ascertaining the condition of the demised premises, to exhibit the same to prospective purchasers, mortgagees, and tenants, and in order that Landlord may make such repairs as may be required to be made by Landlord under the terms of this Lease and/or to adjacent areas. Sixty (60) days prior to the expiration of this Lease, Landlord may post suitable notice on the demised premises that the same are “For Rent”, which notice shall not be removed. obliterated, or hidden by Tenant. Landlord may not, however, thereby unnecessarily interfere with the use of demised premises by Tenant. The exercise of such right of entry shall not be deemed an eviction or disturbance of Tenant nor will Tenant be allowed any abatement of rent for inconvenience caused thereby. |
| 17. | Payment of Utilities: Tenant shall contract for and pay all charges for |
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| 18. | Assignment and Subletting: Tenant will have the right to sublet or assign all the Premises at any time with Landlord’s prior consent, not to be unreasonably withheld or delayed. Tenant may sublease or assign all or part of the Premises to any affiliate or successor by way of merger, acquisition, or similar transaction with Landlord’s consent. Should Landlord consent to an assignment of the Lease, Landlord may require the simultaneous execution of a personal guaranty(s) by a person and/or entity selected at the discretion of the Landlord. |
| 19. | Damage or Destruction: If the building on the demised premises, or any part thereof, shall be damaged or destroyed by fire or other casualty, Landlord shall promptly repair all such damage and restore the said demised premises without expense to Tenant, subject to delays due to adjustment of insurance claims, strikes, and other causes beyond Landlord’s control. If such damage or destruction shall render the said building untenable in whole or in part, the rent shall be abated wholly or proportionately as the case may be until the damage shall be repaired and the demised premises restored. If the damage or destruction shall be so extensive as to require the substantial rebuilding (i.e., expenditure of fifty percent (50%) or more of the replacement cost) of the said demised premises, or the damage is due to a peril not covered by Landlord’s insurance, or the damage occurs within the last three (3) years of the term of this Lease, Landlord or Tenant may elect to terminate this Lease by written notice to the other given within thirty (30) days after the occurrence of such damage or destruction. In no event shall Landlord be required to repair or replace Tenant’s stock-in-trade, trade fixtures, furniture, furnishings, special equipment, or other items of construction and personal property, nor to expend a sum to restore the demised premises in excess of that received by the Landlord from insurance proceeds, less any amount paid to Landlord’s mortgagee from such insurance proceeds. | |
| Landlord and Tenant hereby release each other from liability for loss or damage occurring on or to the demised premises or the premises of which they are a part or to the contents of either thereof, caused by fire or other hazards ordinarily covered by fire or other hazards ordinarily covered by fire and extended coverage insurance policies and each waives all rights of recovery against the other for such loss or damage. Wilful misconduct lawfully attributable to either party, whether in whole or in part a contributing cause of the casualty giving rise to the loss or damage, shall not be excused under the foregoing release and waiver. |
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| 20. | Surrender of Demised Premises: Tenant agrees to deliver all keys and to surrender the demised premises at the expiration, or sooner termination, of this Lease, or any extension or renewal thereof, broom-clean in the same condition as when said demised premises were delivered to Tenant, or as altered, pursuant to the provisions of this Lease, ordinary wear, tear and damage by the elements excepted, and Tenant shall remove all of its property. Tenant agrees to pay a reasonable cleaning charge should it be necessary for Landlord to restore or cause to be restored the demised premises to the same condition as when said demised premises were delivered to Tenant. |
| 21. | Holdover: Should Tenant or any party claiming under Tenant remain in possession of the demised premises or any part thereof after the expiration of the term of this Lease, such holding over shall, unless otherwise agreed in writing, constitute a month-to-month tenancy only, subject to all of the terms and conditions hereof, and Tenant shall pay as monthly rental an amount equal to one and one half times the rent to be paid for the last month of the term hereof. Tenant agrees to give Landlord thirty (30) days prior written notice of intent to vacate premises. |
| 22. | Quiet Enjoyment: If and so long as Tenant pays the rents reserved by this Lease and performs and observes all the covenants and provisions hereof, Tenant shall enjoy the demised premises, subject, however, to the terms of this Lease, without any manner of let or hindrance from Landlord or any person or persons lawfully claiming the demised premises. |
| 23. | Waiver of Covenants: No waiver of any condition or legal right or remedy shall be implied by the failure of the Landlord to declare a forfeiture, or for any other reason and no waiver of any conditions or covenants shall be valid unless it be in writing signed by Landlord. No waiver of any condition shall be claimed or pleaded to excuse a future breach of the same condition or covenant. |
| 24. | Default by Tenant: This Lease is made upon the condition that the Tenant shall punctually and faithfully perform all of the covenants and agreements by it to be performed as herein set forth, and if any of the following events or default shall occur, to wit: |
| (a) | Any installments of rent, additional rent, taxes, or any other sums required to be paid by Tenant hereunder, or any part thereof, shall at any time be in arrears and unpaid for five (5) days after written demand therefor, or |
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| (b) | There be any default on the part of Tenant in the observance or performance of any of the other covenants, agreements, or conditions of this Lease on the part of Tenant to be kept and performed, and said default shall continue for a period of fifteen (15) days after written notice thereof from Landlord to Tenant (unless such default cannot reasonably be cured within fifteen (15) days and Tenant shall have commenced to cure said default within said fifteen (15) days and continues diligently to pursue the curing of same), or |
| (c) | Tenant shall file a petition in bankruptcy or be adjudicated a bankrupt, or file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation, or make an assignment for the benefit of creditors, or |
| (d) | Any trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties or of the demised premises shall be appointed in any action, suit or proceeding by or against Tenant and such proceeding or action shall not have been dismissed within thirty (30) days after such appointment, or |
| (e) | The Leasehold estate hereby created shall be taken on execution or by other process of law, or |
| (f) | Tenant shall admit in writing its inability to pay its obligations generally as they become due, or |
| (g) | Tenant shall vacate or abandon the demised premises, then and in any of said cases, Landlord at its option may terminate this Lease and re-enter upon the demised premises and take possession thereof with full right to sue for and collect all sums or amounts with respect to which Tenant may then be in default and accrued up to the time of such entry, including damages to Landlord by reason of any breach or default on the part of Tenant, or Landlord may, if it elects to do so, bring suit for the collection of such rents and damages without entering into possession of the demised premises or voiding this Lease. |
| (h) | Should Tenant fail to cure the Default within the allotted fifteen (15) days, as provided in this Lease, Landlord may immediately demand all arrearages of Rent and all other sums due and owing by Tenant to Landlord. Landlord may also demand a final settlement and may accelerate all future Rent and other future monetary obligations owed under the remainder of the Lease. |
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| In addition to, but not in limitation of, any of the remedies set forth in this Lease or given to Landlord by law or in equity, Landlord shall also have the right and option, in the event of any default by Tenant under this Lease and the continuance of such default after the period of notice above provided, to retake possession of the demised premises from Tenant without process of law, by summary proceedings or otherwise, and it is agreed that the commencement and prosecution of any action by Landlord in forcible entry and detainer, ejectment or otherwise, or any execution of any judgment or decree obtained in any action to recover possession of the demised premises, shall not be construed as an election to terminate this Lease unless Landlord expressly exercises its option hereinabove provided to declare the term hereof ended, whether or not such entry or re-entry be had or taken under summary proceedings or otherwise, and shall not be deemed to have absolved or discharged Tenant from any of its obligations and liabilities for the remainder of the term of this Lease, and Tenant shall, notwithstanding such entry or re-entry, continue to be liable for the payment of the rents and the performance of the other covenants and conditions hereof and shall pay to Landlord all monthly deficits after such re-entry in monthly installments as the amounts of such deficits from time to time are ascertained and, in the event of any such ouster, Landlord rents or leases the demised premises to some other person, firm or corporation (whether for a term greater, less than or equal to the unexpired portion of the term created hereunder) for an aggregate rent during the portion of such new lease co-extensive with the term created hereunder which is less than the rent and other charges which Tenant would pay hereunder for such period. Landlord may immediately upon the making of such new lease or the creation of such new tenancy sue for and recover the differences between the aggregate rental provided for in said new lease for the portion of the term co-extensive with the term created hereunder and the rent which Tenant would pay hereunder for such period, together with any expense to which Landlord may be put for brokerage commission, placing the demised premises in tenantable condition or otherwise. If such new lease or tenancy is made for shorter term than the balance of the term of this Lease, any such action brought by Landlord to collect the deficit for that period shall not bar Landlord from thereafter suing for any loss accruing during the balance of the unexpired term of this Lease. | ||
| If Tenant at any time shall fail to pay any taxes, assessments, or liens, or to make any payment or perform any act required by this Lease to be made or performed by it, Landlord, without waiving or releasing Tenant from any obligation or default under this Lease, may (but shall be under no obligation to) at any time thereafter make such payment or perform such act for the account and at the expense of Tenant. All sums so paid by Landlord and all costs and expenses so incurred shall accrue interest at the rate of eighteen percent (1 8%) per annum from the date of payment or incurring thereof by Landlord and shall constitute additional rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord upon demand. All other sums payable by Tenant to Landlord under this Lease, if not paid when due, shall accrue interest at the rate of eighteen percent (18%) per annum from their due date until paid, said interest to be so much additional rent under this Lease and shall be paid to Landlord by Tenant upon demand. |
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| 25. | Costs and Attorney Fees: The Tenant agrees and covenants to pay all costs and expenses, including reasonable attorney fees, incurred by the Landlord in the enforcement of any covenant or agreement contained in this Lease, including the pursuit of a collection action should Tenant default on the Lease. |
| 26. | Failure to Perform Covenant: Any failure on the part of either party to this Lease to perform any obligation hereunder, and any delay in doing any act required hereby shall be excused if such failure or delay is caused by any strike, lockout, governmental restriction or any other similar cause beyond the control of the party so failing to perform, to the extent and for the period that such continues, save and except that the provisions of this paragraph shall not excuse a non-payment of rent or other sums due hereunder on its due date. |
| 27. | Rights of Successors and Assigns: The covenants and agreements contained in the within Lease shall apply to, inure to the benefit of, and be binding upon the parties hereto, their heirs, successors, distributees, executors, administrators, legal representatives, assigns and upon their respective successors, in interest, except as expressly otherwise hereinbefore provided. No assignment or subletting by, from, through, or under Tenant, not in strict compliance with the provisions of this Lease shall vest in the assignee or subtenant any right, title, or interest whatever in the Lease or in the demised premises. |
| 28. | Liens: Tenant will not permit to be created nor to remain undischarged any lien, encumbrance, or charge (arising out of any work of any contractor, mechanic, laborer, or materialman or any mortgage, conditional sale, security agreement or otherwise) which might be or become a lien or encumbrance or charge upon the demised premises or any part thereof or the income therefrom, and Tenant will not suffer any other matter or thing whereby the estate, right and interest of Landlord in the demised premises or any part thereof might be impaired. If any lien or notice of lien on account of an alleged debt of Tenant or any notice of contract by a party engaged by Tenant or Tenant’s contractor to work on the demised premises shall be filed against the demised premises or any part thereof, Tenant, within ten (10) days after notice of the filing thereof, will cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. If Tenant shall fail to cause such lien or notice of lien to be discharged within the period aforesaid, then, in addition to any other right or remedy, Landlord may, but shall not be obligated to, discharge the same either by paying the amounts claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings, and in any such event Landlord shall be entitled, if Landlord so elects, to compel the prosecution of an action for the foreclosure of such lien by the lienor and to pay the amount of the judgment in favor of the lienor with interest, costs, attorney’s fees and allowances. Any amount so paid by Landlord and all costs and expenses, including attorney’s fees, incurred by Landlord in connection therewith, together with interest thereon at the maximum legal rate from the respective dates of Landlord’s making of the payment or incurring of the cost and expense shall constitute additional rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord on demand. |
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| 29. | Construction of Lease: The word “Landlord” as used herein shall refer to the individual, individuals, partnership or corporation called “Landlord” at the commencement of this Lease, and the word “Tenant” shall likewise refer to the individual, individuals, partnership, or corporation called “Tenant”. Words of any gender used in this Lease shall be held to include any other gender, and words in the singular number shall be held to include the plural when the sense requires. |
| 30. | Paragraph Headings: The paragraph headings as to the contents of particular paragraphs herein, are inserted only for convenience and are in no way to be construed as part of such paragraph or as a limitation on the scope of the particular paragraph to which they refer. |
| 31. | Commissions: Landlord acknowledges the service of Wilson/Kibler, Inc. as Real Estate Broker in procurement of this Lease and all extensions and renewals and expansions, and in consideration of thereof, does hereby agree to pay said broker for services rendered, commissions on the rental of the demised premises in accordance with their separate agreement. Landlord acknowledges that such agreement shall be binding on its heirs, representatives, successors, and assigns and will follow the land. |
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| 32. | Notices: It is agreed that the legal address of the parties for all notices required or permitted to be given hereunder, or for all purposes of billing process, correspondence, and any other legal purposes whatsoever, shall be deemed sufficient, if given by a communication in writing by United States mail, postage prepaid and certified, return receipt requested, and addressed as follows: | |
| To the Landlord at the following address: Greenleaf Investment Partners L091, LLC 3081 Holcomb Bridge Road Suite A-2 Norcross, GA 30071 | ||
| To the Tenant at the following address: 1520 Locust St. Suite 901 Philadelphia, PA 19102 Attn: Taylor Jones 803-386-7109 ### cc: ### cc: ### | ||
| Such notice shall be deemed given upon being so mailed. The notice address may be changed from time to time by notice given pursuant hereto. |
| 33. | Security Deposit: As security for the faithful performance by Tenant of all the terms and conditions of this Lease on Tenant’s part to be performed, Tenant has deposited with Landlord the sum of One Thousand Four Hundred Fifty-Eight and 33/100 ($1,458.33) Dollars. Such amount shall be returned to Tenant, without interest, within thirty (30) days after the day set forth for the expiration or sooner termination of the term herein if Tenant has fully and faithfully carried out all of the terms, covenants, and conditions of this Lease on its part to be performed. Landlord shall have the right to apply any part of said deposit to cure any defaults of Tenant, including, but not limited to, damages and payment of rent. The application of said deposit shall be at the sole discretion of Landlord. It is expressly understood that this remedy is in addition to all other remedies vested in Landlord. | |
| In the event of sale of the demised premises or lease of the land on which it stands subject to this Lease, Landlord shall have the right to transfer the security to the purchaser and Landlord and his agent shall be released by Tenant from all liability for the return of such security and Tenant shall look to new Landlord solely for the return of the said security. It is agreed that this provision shall apply to every transfer or assignment made of the security to a new Landlord. The security deposited under this Lease shall not be mortgaged, assigned, or encumbered by Tenant without the written consent of Landlord. In the event of any authorized assignment of this Lease by Tenant the said security deposit shall be deemed to be held by Landlord as deposit made by the assignee and Landlord shall have no further liability with respect to the return of said security deposit to Tenant. |
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| 34. | Entire Agreement: This Lease, and the exhibits attached hereto and any addendums attached hereto and forming a part hereof, if any, set forth all the covenants, promises, agreements, conditions, and understandings between Landlord and Tenant concerning the demised premises, and there are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them other than as are herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change, or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and signed by them. Tenant agrees that Landlord and its agents have made no representations or promises with respect to the demised premises, or the building or property of which the same are a part, if applicable, except as herein expressly set forth. |
| 35. | Liability of Landlord: In the event of the sale or other transfer of Landlord’s right, title, and interest in the demised premises, Landlord will be released thereby from all liability and obligations hereunder to Tenant. |
| 36. | Accord and Satisfaction: No payment by Tenant or receipt by Landlord of a lesser amount than the rent herein stipulated or other sums due hereunder will be deemed to be other than on account of the earliest stipulated rent or other sum nor shall any endorsement or statement on any check or any letter accompanying any check or payment of rent or other sum be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such rent or sum or pursue any other remedy provided for in this Lease or available at law or in equity. |
| 37. | Relationship of Parties: Nothing herein contained shall be deemed or construed by Landlord or Tenant as creating the relationship of principal and agent or of a partnership or joint venture or as establishing a fiduciary relationship responsibility between the Landlord and Tenant, it being understood and agreed that none of the provisions herein, nor any acts of Landlord or Tenant, will be deemed to create any relationship other than that of Landlord and Tenant. |
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| 38. | No Third Party Rights: The rights and obligations arising under this Lease are personal between Landlord and Tenant and such rights and obligations shall not be enforceable by any third party. Furthermore, Tenant recognizes that it has no third party rights arising out of any agreement between Landlord and any party other than Tenant regardless of any benefits accruing to Tenant by virtue of such agreement. |
| 39. | Authority: If Tenant is a corporation, Tenant warrants and represents to Landlord that the execution of this Lease by the person or persons so signing has been authorized by a resolution of Tenant’s Board of Directors or other appropriate corporate action. If Tenant is a partnership, Tenant warrants and represents to Landlord that Tenant’s execution of this Lease by the partner or partners so signing is in accordance with its partnership documents. |
| 40. | Hazardous Waste: |
| (a) | In General. Tenant shall not use, generate, manufacture, produce, store, transport, treat, dispose of or permit the escape or release on, under, about or from the Demised Premises, or any part thereof, of any Hazardous Materials. As used herein, “Hazardous Materials” means any chemical, compound, material, substance or other matter that: (a) is defined as a hazardous substance, hazardous material or waste, or toxic substance under any Hazardous Materials Law, (b) is regulated, controlled or governed by any Hazardous Materials Law or other applicable law, (c) is petroleum or a petroleum product, or (d) is asbestos, formaldehyde, a radioactive material, drug, bacteria, virus, or other injurious or potentially injurious material (by itself or in combination with other materials). As used herein, “Hazardous Materials Law” means any and all federal, state or local laws, ordinances, rules, decrees, orders, regulations or court decisions relating to hazardous substances, hazardous materials, hazardous waste, toxic substances, environmental conditions on, under or about the Demised Premises, or soil and ground water conditions, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act, the Hazardous Materials Transportation Act, any other law or legal requirement concerning hazardous or toxic substances, and any amendments to the foregoing. If Tenant’s Permitted Use requires the use and/or storage of any Hazardous Materials on, under or about the Demised Premises, Tenant shall provide written notice to Landlord, prior to final execution of this Lease, of the identity of such materials and Tenant’s proposed plan for the use, storage and disposal thereof; such use, storage and disposal shall be subject to Landlord’s approval, in Landlord’s sole and absolute discretion. If Landlord approves such proposed use, storage and disposal of specific Hazardous Materials, Tenant may use and store upon the Demised Premises only such specifically approved materials and shall comply with any conditions to such approval as Landlord may impose in its sole and absolute discretion. Landlord’s permission hereunder may be withdrawn or modified at any time in Landlord’s sole and absolute discretion. Tenant shall fully and promptly comply with all Hazardous Materials Laws at all times during the Lease Term, and at the expiration or earlier termination of the Lease Term, Tenant shall remove and dispose of all Hazardous Materials affecting the Demised Premises resulting from the use or occupancy thereof by Tenant or its agents, employees, suppliers, contractors, subtenants, successors and assigns. Notwithstanding the foregoing, Landlord consents to Tenant’s above-ground use, storage, transport and off-site disposal of products containing small quantities of Hazardous Materials (e.g., cleaning solutions and materials), provided Tenant shall handle, use, store, transport and dispose of such Hazardous Materials in a safe and lawful manner and in accordance with all applicable manufacturer’s recommendations and shall not allow such Hazardous Materials to contaminate the Demised Premises. |
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| (b) | Indemnity. Tenant shall indemnify, protect, defend and hold Landlord (and its partners, joint venturers, shareholders, affiliates and property managers, and their respective officers, directors, employees and agents) and Landlord’s mortgagee(s) harmless from and against any claim, demand, investigation, proceeding, action, suit, judgment, award, fine, lien, loss, damage, expense, charge or cost of any kind or character and liability (including reasonable attorneys’ fees and court costs) arising out of, in connection with, or directly or indirectly arising out of the use, generation, manufacture, production, storage, treatment, release, disposal or transportation of Hazardous Materials by Tenant, or any successor, assignee or sublessee of Tenant, or their respective agents, contractors, employees, licensees, or invitees, on, under, about or from the Demised Premises, including, but not limited to, all foreseeable and unforeseeable costs, expenses and liabilities related to any testing, repair, cleanup, removal costs, detoxification or decontamination and the preparation and implementation of any closure, remedial action, site assessment costs or other required plans in connection therewith deemed required, necessary or advisable by Landlord or any governmental authority, and any foreseeable or unforeseeable consequential damages. Any defense of Landlord pursuant to the foregoing indemnity shall be by counsel reasonably acceptable to Landlord. Neither the consent by Landlord to the use, generation, storage, release, disposal or transportation of Hazardous Materials nor Tenant’s strict compliance with all Hazardous Materials Laws shall excuse Tenant from Tenant’s indemnification obligations hereunder. The foregoing indemnity shall be in addition to and not a limitation of the other indemnification provisions of this Lease. Tenant’s obligations under this Section shall survive the termination or expiration of this Lease. |
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| (c) | Waiver of Liability. Except to the extent of Landlord’s sole negligence and unless otherwise expressly provided by in
this Lease, Landlord and Landlord’s agents and employees shall not be liable for, and Tenant waives all claims for, damage to property
sustained by Tenant, employees, agents or contractors, or any other person claiming through Tenant, resulting from any accident in or
upon the Premises or the Shopping Center of which they shall be a part, including, but not limited to, claims for damage resulting from:
(a) any equipment or appurtenances becoming out of repair; |
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| 41. | Environmental Activities: All operations and activities of the Tenant on the property shall be within the authorized uses of the premises and conducted in full compliance with all federal, state or local laws and regulations concerning the protection of the environment and any hazardous or toxic substances, as those terms are defined within such laws and regulations. Tenant further covenants and agrees that any such hazardous or toxic substances introduced or generated on the premises will be generated, stored, treated, removed, utilized, and disposed of in accordance with all such laws and regulations. | |
| Tenant shall and does hereby agree to indemnify, defend, and hold harmless the Landlord, its agents, and Landlord’s lender(s) holding liens on the Demised Premises against any loss, claim, damage, expense, or liability including, without limitation, required repairs, clean up, detoxification, removal, or liability to any third party resulting from Tenant’s use, storage, generation, manufacture, treatment, or handling of Hazardous Materials or other contaminants. |
| 42. | Reciprocal Covenant on Notification of ADA Violations: Within ten (10) days after receipt, Landlord and Tenant shall advise the other party in writing, and provide the other with copies of (as applicable), any notices alleging violation of the Americans with Disabilities Act of 1990 (“ADA”) relating to any portion of the Property or of the Premises; any claims made or threatened in writing regarding noncompliance with the ADA and relating to any portion of the Property or of the Premises; or any governmental or regulatory actions or investigations instituted or threatened regarding noncompliance with the ADA and relating to any portion of the Property or the Premises. |
| 43. | Estoppel Certificates: Tenant shall, from time to time upon ten days prior request by Landlord, execute, acknowledge and deliver to Landlord, or to a person designated by Landlord, a certificate of Tenant stating that this Lease is unmodified and in full effect (or, if there have been modifications, that this Lease is in full effect as modified, and setting forth such modifications) and the dates to which Annual Rent, Additional Rent and other sums payable hereunder have been paid, and either stating that to the knowledge of the signer of such certificate no default exists hereunder or specifying each such default of which the signer has knowledge. Landlord, at Landlord’s cost and expense, shall cause such certificate to be prepared for execution by Tenant. Any such certificate may be relied upon by any prospective mortgagee or purchaser of the Building. In the event that Tenant should fail to execute any such certificate required by this Article, within ten days of the Landlord request, Tenant hereby irrevocably constitutes Landlord as its Attorney in Fact to execute such certificate in Tenant’s name, place and stead, it being agreed that such power is one coupled with an interest. |
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| 44. | End of Term of Lease: Upon the expiration or sooner termination of this Lease, Tenant shall restore the Premises to their original condition as of the Commencement Date of this Lease, reasonable wear and tear excepted. Reasonable wear and tear shall not include any damage or deterioration that would have been prevented by good maintenance practice or by Tenant performing all of its obligations under this Lease. All damage caused by Tenant shall be repaired and the Premises restored such that on or before the last day of the Lease, the Premises shall be delivered up broom swept free of Tenant’s product, furniture and equipment in good and rentable condition with all restoration work completed, and any excess materials and construction equipment used in the restoration process removed from the Premises. Tenant’s obligation hereunder shall survive the expiration or sooner termination of the Lease. |
| 45. | Captions: The captions in this Lease are for reference only and do not define the scope of this Lease or the intent of any term. All Section references in this lease shall, unless the context otherwise specifically requires, be deemed references to the Sections of this lease. |
| 46. | Governing Law: This Lease shall be governed by, and construed in accordance with, the laws of the State of South Carolina. |
Additional Provisions: Insofar as the following provisions conflict with any other provisions of the Lease, the following shall control:
| 1. | Tenant agrees to include Wilson Kibler, Inc. and Landlord as additionally insured on the liability insurance and will provide Landlord with a of the Certificate of Insurance prior to taking possession of the premises. |
| 2. | Prior to delivery of space, Tenant will provide a check for the security deposit in the amount of $1,458.33. The Landlord requires the security deposit, rental payments and any additional rental payments and/or late fees to be made payable monthly by Automatic Draft/ACH/Electronic Payments. |
| 3. | Advance Rent: Upon execution of the Lease, Tenant will provide Landlord with a check for $1,458.33 for January of 2023. |
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| 4. | Landlord shall provide Tenant with proportionate share of parking spaces available at the building, not less than that required by applicable codes, at no extra charge. |
| 5. | Landlord will deliver the premises with the HVAC, Plumbing, and Electrical in good working order and in broom clean condition. |
| 6. | This Lease may not be changed or terminated, in whole or in part, except in a writing signed by Landlord and Tenant. |
| 7. | There shall be no presumption against Landlord because Landlord drafted this Lease or for any other reason. |
| 8. | If Tenant is comprised of two or more persons/entities, the liability of those persons under this Lease shall be joint and several. |
[Signatures on following page]
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In Witness Whereof, the parties hereto have caused these presents to be executed the day and year first above written.
| LANDLORD: GREENLEAF INVESTMENT PARTNERS L091, LLC |
| s/ Mark Buchanan | ||
| By: | Mark Buchanan, Auth. Sig. | |
| TENANT: ELAUWIT CONNECTION, INC. | ||
| s/ Taylor Jones | ||
| By: | Taylor Jones, President |
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Exhibit 10.10
OFFICE/WAREHOUSE LEASE
This Lease, entered into this 31st day of May, 2024, by and between Landlord and Tenant hereinafter named.
Definitions and Certain Basic Provisions.
| (a) | Landlord: Greenleaf Partners L091, LLC, a Delaware limited liability company (b) Landlord’s address: |
| 3081 Holcomb Bridge Road | ||
| Suite A-2 | ||
| Norcross, GA 30071 | ||
| Attention: Wendy Moreland | Email: ### |
| (c) | Tenant: Elauwit Connection, Inc. |
| (d) | Tenant’s address: 1700 Alta Vista Drive Suite TN-130 and TN-140 Columbia, SC 29223 Email: ### |
Tenant’s phone number: (803) 386-7109
| (e) | Tenant’s trade name: Elauwit Connection, LLC |
| (f) | Tenant’s address in Building: 1700 Alta Vista Drive Suite TN-140 Columbia, SC 29223 |
| (g) | Premises: Approximately 4,000 square feet, such Premises being shown and outlined on the floor plan attached hereto as Exhibit “A”, and incorporated herein by reference, and being part of the Building situated upon the property described in Exhibit “B” attached hereto and incorporated herein by reference (the “Land”). “Building” shall refer to the building in which the Premises are located, which Building contains a total of 9,600 square feet. |
| (h) | Landlord’s Work: See special Stipulations page |
| (i) | Tenant Reimbursement: Prorated share of Taxes, Insurance and Common Area Expenses (“CAM”). (j) Prorata Share: 42% |
| (k) | Lease Term: Twenty-four months |
| (l) | Commencement Date: July 1, 2024 Expiration Date: June 30, 2026 |
| (m) | Base Rent: |
Monthly Annual
July 1, 2024-June 30, 2025 $3,150.00 $37,800.00 July 1, 2025 -June 30, 2026 $3,276.00 $39,312.00
| (o) | Storage and distribution of products and office related uses. |
| (p) | Initial Estimates for Taxes, Insurance and Common Area Maintenance charge: |
| Taxes | $ 333.33 per month/ $4,000.00 annually | |
| Insurance | $ 166.67 per month/ $ 2,000.00 annually | |
| CAM | $ 833.33 per month/ $10,000.00 annually |
| (q) | Security Deposit: $ Paid on first lease $1,458.33 |
| (r) | Prepaid Rental: $ N/A to be applied to N/A Base Rental and CAM(s) Broker: [List Landlord/Tenant brokers separately] (if more than one, herein collectively called “Broker”) |
| (s) | Special Stipulations: See Exhibit D attached hereto and made a part hereof. |
LEASE TERMS AND CONDITIONS
1. PREMISES. For and in consideration of the following, Landlord hereby leases and rents unto Tenant, and Tenant hereby leases and takes from Landlord upon the terms and conditions hereinafter set forth the Premises The Premises are leased “as is” in their present condition, without any representation or warranty by Landlord, as suited for the uses intended by Tenant, and subject to the matters to which Landlord’s title to the Premises is subject, except that Landlord shall perform Landlord’s Work as soon as possible following the date hereof.
2. RENTAL. Tenant shall pay to Landlord at Landlord’s address noted above, or to such other address as Landlord may from time to time designate by written notice to Tenant, promptly on the first (1st) day of each month, in advance, during the term of this Lease, in lawful money of the United States of America, without offset or deduction, and without any prior notice and demand, Base Rental as set forth above. At the time of execution of this Lease, Tenant shall pay to Landlord the Prepaid Rental in advance. The rentals described herein shall be appropriately adjusted based upon the precise number of square feet in the Premises. In the event the term commences or expires only during the middle of any month, the rent for that portion of the month shall be prorated on a daily basis. In the event Tenant fails to pay any installment of Base Rental hereunder within ten (10) calendar days after such installment is due, in addition to all of Landlord’s other rights and remedies hereunder or at law and to help defray the additional cost to Landlord for processing such late payment, Tenant shall pay to Landlord on demand a late charge in an amount equal to ten percent (10%) of such installment. The provision for such late charge shall not be construed as liquidated damages or as limiting Landlord’s remedies in any manner. All required payments, impounds, charges and sums hereunder required of Tenant, including, without limitation, those payments under Section 3 and all other sections of this Lease, whether or not so designated, shall constitute additional rental hereunder, and are sometimes herein referred to as Additional Rental, additional rent or similar designations. No receipt by Landlord of an amount less than Tenant’s full amount due will be deemed to be other than payment “on account”, nor will any endorsement or statement on any check or any accompanying letter effect or evidence an accord and satisfaction. Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance or pursue any right of Landlord. No payments by Tenant to Landlord after the expiration or other termination of the Term or after the giving of any notice (other than a demand for payment of money) by Landlord to Tenant will reinstate, continue or extend the term or make ineffective any notice given to Tenant prior to such payment. After notice or commencement of a suit, or after final judgment granting Landlord possession of the Premises, Landlord may receive and collect any sums of rent due under this Lease, and such receipt will not void any notice or in any manner affect any pending suit or any judgment obtained. All monthly rental payments under this Lease are to be made through the RentCafe payment system or via Automated Clearing House (ACH) transfer. Should Tenant choose to make rental payments by any means other than through RentCafe or ACH transfer, an additional charge of $50.00 per month will be incurred for each payment made outside of these specified methods. This additional charge is due and payable together with the monthly rent payment to ensure full compliance with the terms of this Lease. Tenant acknowledges and agrees that this charge is instituted as a reasonable measure to cover the administrative costs associated with processing payments made by alternative methods.”
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3. TAXES, INSURANCE AND COMMON AREA MAINTENANCE.
(a) (i) Commencing on the Commencement Date, Tenant agrees to pay to Landlord on a monthly basis in advance on the first (1st) day of each calendar month as additional rent Tenant’s Prorata Share of all tax and insurance expenses (as defined below) of Landlord for the Building and/or the Land for each calendar year (or portion thereof) during the term of this Lease. Landlord may periodically re-estimate such tax and insurance expenses as described in Subparagraph 3(a)(ii) hereof, with an annual adjustment at the end of each calendar year to adjust for any discrepancies between the actual expenses incurred and any such estimate. Landlord agrees to refund any excess amount charged for any such year and Tenant agrees to pay within fifteen (15) days of demand any additional amount due pursuant to the annual adjustment. The obligation to pay such additional rental amounts shall survive the termination of this Lease. Any tax and insurance expense payment due by Tenant hereunder for less than a full calendar month shall be prorated. Any delay or failure of Landlord, beyond the adjustment date of any year, if any, in computing or billing for the rent adjustments hereinabove provided, shall not constitute a waiver of or in any way impair the continuing obligation of Tenant to pay such rent adjustments hereunder. Notwithstanding any expiration or termination of this Lease, Tenant’s obligation to pay rent as adjusted hereunder shall continue and shall cover all periods up to the Lease expiration date, and shall survive any expiration or termination of this Lease.
(ii) The term “tax and insurance expenses” as used above means all actual costs and expenses paid or incurred by Landlord or on its behalf in connection with (A) each and every type of tax, charge, or imposition now or hereafter assessed against the Building and/or the Land, including, but not limited to, ad valorem taxes, special assessments, governmental charges, taxes levied or imposed upon or assessed against the rent reserved hereunder or income arising herefrom, and private impounds or assessment (under private easements, covenants or otherwise), and any reasonable expenses, including fees and disbursements of attorneys, tax consultants, arbitrators, appraisers, experts and other witnesses, incurred by Landlord in contesting any taxes or the assessed valuation of all or any part of the Building or the Land, and (B) all fire and extended casualty insurance on the Building, all liability coverage on the Building and the Land and the grounds, sidewalks, driveways and parking areas on the Land, and all such other insurance protection, including, but not limited to, business interruption insurance, as are from time to time obtained by Landlord. The term “tax and insurance expenses” does not include any income and franchise taxes of Landlord.
(b) (i) Commencing on the Commencement Date, Tenant agrees to pay to Landlord on a monthly basis in advance on the first (1st) day of each calendar month as additional rent Tenant’s Prorata Share of all common area expenses (as defined below) of Landlord for the Building and/or the Land and/or Project for each calendar year (or portion thereof) during the term of this Lease. Landlord may estimate the common area expenses as described in Subparagraph 3(b)(ii) hereof, with an annual adjustment at the end of each calendar year to adjust for any discrepancies between the actual expenses incurred and any such estimate. Landlord agrees to refund any excess amount charged for any such year and Tenant agrees to promptly pay upon demand any additional amount due pursuant to the annual adjustment. The obligation to pay such additional rental amounts shall survive the termination of this Lease. Any common area expense payment due by Tenant hereunder for less than a full calendar month shall be prorated. The term “common area expenses” as used above means all actual costs and expenses paid or incurred by Landlord or on its behalf in connection with the ownership, operation, maintenance and repair and maintenance of the Land and/or the Building, including, but not limited to, cleaning, property management, lighting, pest control, security, landscaping and repairs by Landlord pursuant to Paragraph 6 below.
4. TERM. The term of this Lease shall be for the Lease Term (and the fractional part of a month, if any, required to end the term on the last day of a month) and shall commence on the Commencement Date and shall expire at 11:59 p.m., local Atlanta, Georgia time, on the Expiration Date.
5. REPAIRS BY LANDLORD.
Landlord shall make repairs to the foundation, exterior walls (excluding plate glass and doors), and roof of the Building as necessary for safety and tenant ability, except for repairs rendered necessary by the negligence of Tenant, its agents, employees and invitees. Lessor shall also make repairs to underground utility and sewer pipes outside the exterior walls of the Building. Landlord shall be responsible for the maintenance of those areas around the Building, including parking areas, planted areas, and landscaped areas which are from time to time designated by Landlord and open for the joint use by tenants of the Building or the public. Except as otherwise expressly provided in this Lease, Lessor shall not be required to make any repairs or improvements to the Premises.
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6. REPAIRS BY TENANT. Tenant shall repair, maintain, replace as necessary and keep in good, clean and safe repair all portions of the Premises and all equipment, fixtures and systems therein which are not specifically set forth as the responsibility of Landlord in Paragraph 5 of this Lease; in addition, Tenant shall bear the expense of any repairs to the items which are Landlord’s responsibility (under Paragraph 5, above) if made necessary by the negligence or misuse of Tenant, its employees, contractors, or agents; and Tenant shall bear the cost of repairs to the floor if made necessary by the nature of Tenant’s use of the Premises. Tenant’s repairs and replacements shall include without limitation all electrical, plumbing, heating and air conditioning systems, parts, components and fixtures within or relating to the Premises. In connection therewith, Tenant shall maintain in force at all times a maintenance contract for the heating, ventilation, and air conditioning equipment acceptable in form and content to Landlord and with a reputable heating and air conditioning service contractor acceptable to Landlord. Tenant shall also promptly repair or replace all partitions and all glass and plate glass within the Premises immediately when cracked or broken. Tenant shall provide or pay for pest, bug and termite control service or otherwise keep the Premises free from pests, termites and wood-boring infestation. Tenant shall maintain heat within the Premises as necessary to avoid damage to the sprinkler system by freezing. Landlord shall be under no obligation to inspect the Premises. Tenant shall at once report in writing to Landlord any defective conditions known to Tenant which Landlord is required to repair, and failure to promptly report such defects shall make Tenant liable to Landlord for any liability incurred by Landlord by reason of such defects, and Tenant indemnifies and holds harmless Landlord from and against all loss, cost and damage (including reasonable attorney’s fees) arising from or related to Tenant’s failure to so report such defective conditions.
7. UTILITY BILLS. Tenant shall promptly pay all charges for utilities and other services furnished to the Premises by Landlord or the applicable utility company, including, but not limited to, gas, water, electricity, fuel, light and heat, and Tenant shall promptly pay all charges for garbage collection services and for all other sanitary services rendered to the Premises or used by Tenant in connection herewith. As to any utilities furnished to the Premises which are not invoiced to and paid directly by Tenant, such utilities shall be invoiced by Landlord to Tenant. Landlord shall not be in default hereunder or be liable for any damages directly or indirectly resulting from, nor shall the rental herein reserved be abated by reason of, (i) the failure to furnish or delay in furnishing any such utilities when such failure or delay is caused by acts of God or the elements, delays or disturbances of any character, any other accidents or other conditions beyond the reasonable control of Landlord, or by the making or repairs or improvements to the Premises or to the Building, (ii) the limitation, curtailment, rationing or restriction on use of water or electricity, gas or any other form of energy or any service utility whatsoever serving the Premises or the Building, or (iii) the installation, use or interruption of use of any equipment in connection with the furnishing of any of the foregoing utilities. If any of such utilities are not separately metered, but are being used by other tenants of the Building, Landlord will prorate the costs thereof based on the square footage of the Premises to all premises being served thereby (provided, that if any particular tenant has excessive use of such utility, Landlord may reasonably allocate such utility charges as is appropriate in such case).
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8. USE OF PREMISES; ALTERATIONS.
(a) The Premises shall be used for the Permitted use only. The Premises shall not be used for any illegal purposes, nor in any manner to create any nuisance or trespass, nor in any way which would violate any law, ordinance, or subdivision restrictions affecting the Premises, nor in any manner as would cause cancellation of, or increase the rate of any insurance policy carried by Landlord. Tenant shall use the Premises only in full compliance, and shall at its sole cost and expense comply with (i) all ordinances, statutes, rules and regulations of any applicable governmental authorities, or any other entity having jurisdiction over the Premises; (ii) all covenants, conditions and restrictions affecting title to the Premises, and (iii) those certain Rules and Regulations attached hereto as Exhibit C and made a part hereof. Tenant hereby agrees to comply in full with such Rules and Regulations and any and all reasonable modifications thereof or amendments thereto with respect to which Landlord notifies Tenant, which are applied on a non-discriminatory basis to all tenants in the area in which the Premises are located, and which will not unreasonably interfere with Tenant’s use of the Premises as herein provided. To the extent that any repairs, alterations, changes or additions to the Premises are required by the application of such ordinances, statutes, rules or government regulations to Tenant’s use of the Premises, all such repairs, alterations, changes or additions shall be made, subject to the terms hereof, at the sole expense of Tenant. If at any time during the term of this Lease the insurance rate for the Premises or the Building is increased over the least hazardous rate due to the nature of the use of the Premises by Tenant, said increased amount shall be paid by Tenant as additional rental on the first (1st) day of the month following Tenant’s receipt of notification of the payment thereof by Landlord.
(b) Tenant shall make no alterations or modifications of the exterior or interior of the Premises without the prior written consent of Landlord. Landlord shall not unreasonably withhold its consent to interior alterations to the Premises, which do not affect the structural components of the Building or the Building systems. Tenant’s request for consent shall be in writing and accompanied by plans and specifications describing the proposed alterations or modifications. Tenant shall fully comply with all applicable governmental laws, ordinances, codes, regulations and other requirements with respect to any such alterations. All such alterations shall be accomplished in a first-class workmanlike manner using first-quality materials in connection therewith. All such alterations shall be and remain the property of Tenant during the term of this Lease, and Tenant shall (unless, at the time of Landlord’s consent, Landlord otherwise elects) remove all such alterations erected by Tenant prior to the Expiration Date or earlier termination of this Lease; provided, however, that if Landlord elects, such alterations shall become the property of Landlord as of the expiration date or earlier termination of this Lease and shall be delivered up to Landlord with the Premises. All shelves, bins, machinery, movable partitions and trade fixtures installed by Tenant may be removed by Tenant prior to the Expiration Date or earlier termination of this Lease if Tenant so elects, and shall be removed by the Expiration Date or earlier termination of this Lease if required by Landlord. Tenant shall permit no liens to attach or exist against the Premises.
9. INSURANCE.
(a) Tenant shall maintain in force at all times commercial general liability insurance in an amount of not less than $2,000,000.00 combined single limit coverage for bodily injury, death, and property damage. Such insurance shall include contractually assumed liability; and such insurance shall be primary and not in excess of or contributory with other insurance carried by other persons. Said policy shall name Landlord as an additional insured and shall contain a provision requiring the insurer to give Landlord at least thirty (30) calendar days’ prior written notice before any termination or expiration of said policy for any reason. Prior to the commencement of this Lease and prior to the expiration of each term of such policy, Tenant shall deliver to Landlord the original of such policy or a proper certificate from the insurer. Tenant shall pay all premiums for the insurance coverage which Tenant is required to procure and maintain under this Lease.
(b) Tenant hereby agrees to insure any improvements installed by Tenant in the Premises and its merchandise, trade fixtures, personal property, furnishings, supplies, inventory, signs, and other contents of the Premises against fire, with all risk coverage, for the full replacement value thereof. Landlord shall have no responsibility whatsoever for any damage, theft, or other casualty to or involving the same.
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(c) Each insurance policy: (i) shall be issued by an insurer authorized under the applicable law to issue the coverage provided by the policy; (ii) shall be issued by an insurer reasonably satisfactory to Landlord; (iii) shall be issued on such form of policy, authorized in Georgia, as Landlord may approve; (iv) shall name Landlord, Tenant and any mortgagee of the Project as insured parties, as their respective interests may appear; (v) shall provide that the policy cannot be cancelled, modified or lapsed as to Landlord or any mortgagee of the Project except after the insurer gives Landlord and any mortgagee of the Project at least ten (10) days prior written notice; (vi) shall not be subject to invalidation as to Landlord or any mortgagee of the Project by reason of any act or omission of Tenant or any of Tenant’s officers, employees or agents; and (vii) shall contain a provision to the effect that the policy shall not be invalidated, and shall remain in full force and effect, if any insured waives in writing prior to a loss any or all rights of recovery against any party for loss occurring to property covered by that policy, and a provision whereby the insurer itself waives any claims by way of subrogation against Landlord and any mortgagee of the Project. Tenant shall not procure or maintain in force any insurance policy which might have the effect of reducing or diminishing the amounts payable under any of the policies required by this Lease.
(d) Landlord shall insure the Building against damage with property insurance not less than the replacement value of the Building and with such deductibles as Landlord reasonably deems appropriate and with commercial general liability insurance in such amounts and with such deductibles as Landlord reasonably deems appropriate.
(e) Each of Landlord and Tenant hereby releases the other from any and all liability and responsibility to the other or anyone claiming through or under them by way of subrogation or otherwise for any loss or damage to property caused by fire or any other perils insured in policies of insurance covering such property, even if such loss or damage shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible, including any other Tenants or occupants of the remainder of the Building. Landlord and Tenant hereby acknowledge and agree that it is their intent to shift the risk for losses to property to their respective insurers and that each is adequately insured to cover such risks.
10. WAIVER OF RIGHT OF RECOVERY AND SUBROGATION. Landlord and Tenant each hereby waives any claim which may arise in its favor against the other party hereto arising out of this Lease (or any renewal or extension thereof), for any loss or damage to any of its property located within, upon, or constituting a part of the Premises. Landlord and Tenant each agree to have its own insurance company properly endorse the casualty coverage insurance policies covering the Premises, or anything located therein (i) to waive any subrogation claims against the other party, and (ii) to prevent the invalidation of said insurance coverage by reason of this mutual waiver. Landlord and Tenant hereby acknowledge and agree that it is their intent to shift the risk for losses to property to their respective insurers and that each is adequately insured to cover such risks.
11. DESTRUCTION OF OR DAMAGE TO THE PREMISES. If the Premises are totally destroyed by storm, fire, lightning, earthquake or any other casualty, this Lease shall terminate as of the date of such destruction, and rental shall be accounted for as between Landlord and Tenant as of that date. If the Premises are partially destroyed by storm, fire, lightning, earthquake or any other casualty, Landlord shall notify Tenant in writing whether the damage to the Premises is so extensive that the same cannot be reasonably repaired and restored within six (6) months’ time from the date of such casualty. If Landlord shall notify Tenant that such damage cannot be reasonably repaired within six (6) months’ time, then, within fourteen (14) calendar days of Tenant’s receipt of such notice, Landlord and Tenant shall each have the right to terminate this Lease as of the thirtieth (30th) calendar day following delivery to the other party of written notice of such termination. If either Landlord or Tenant shall so terminate the Lease, then rental shall be paid up to the date of such termination. If neither Landlord nor Tenant shall so terminate this Lease or if Landlord shall notify Tenant that the damage can be reasonably repaired within six (6) months’ time, then rental shall abate in such proportion (based upon the square footage) as use of the Premises has been destroyed, and Landlord shall restore the Premises to substantially the same condition as before the occurrence of such casualty as speedily as practicable, whereupon full rental shall recommence. Notwithstanding anything contained herein to the contrary, Landlord shall have no obligation to expend any funds to repair, restore, rebuild, reconstruct or replace the Premises in excess of the insurance proceeds paid on account of such damage or destruction (and Landlord’s deductible portion) and available to Landlord.
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12. CONDEMNATION. If the whole of the Premises, or such substantial portion thereof as will make the Premises unusable for the purposes herein leased, be condemned by any legally constituted authority for any public use or purpose, then this Lease shall terminate as of the time when possession thereof is taken by public authorities, and rental shall be accounted for between Landlord and Tenant as of that date. In the event the portion condemned is such that the remaining portion can, after restoration and repair, be made usable for Tenant’s purposes, then this Lease shall not terminate; however, the Base Rental shall be reduced proportionately to the amount (based upon square footage) of the Premises taken. In such event, Landlord shall make any necessary repairs as soon as they can be reasonably accomplished. Notwithstanding anything contained herein to the contrary, Landlord shall have no obligation to expend any funds to repair, restore, rebuild, reconstruct or replace the Premises in excess of the condemnation award paid to Landlord for the costs and expenses thereof, and available to Landlord. Any termination or obligation to repair, however, shall be without prejudice to the rights of either Landlord or Tenant, or both, to recover from the condemnor compensation and damages caused by such condemnation. Landlord and Tenant acknowledge that Tenant shall have the right to apply for and collect the value of its trade fixtures and special equipment installed by it in the Premises and any other compensable damages resulting from such condemnation not affecting Landlord’s settlement with or award from the condemning authority; provided, however, that Tenant shall have no claim against Landlord or against the condemnor for the value of any unexpired portion of the term of this Lease or otherwise. Neither the Tenant nor the Landlord shall have any rights in any award made to the other by any condemning authority.
13. MULTI-TENANT FACILITY. Tenant shall also have the non-exclusive right of ingress and egress to and from the street and the Premises, over and upon the driveways located on the Land. Tenant understands and acknowledges that the Building is a multi-tenant building to be also occupied by other tenants of Landlord. Tenant shall have the right, together with said other tenants, to use all common driveways, common parking areas, and other common facilities on the Land provided for all lessees, their agents, employees, invitees, licensees and customers. Tenant agrees not to park on, nor to block said driveways, nor to block any paved areas in the front of the building that have been reserved for Landlord’s other tenants.
14. EXTERIOR SIGNS. Tenant, only with Landlord’s prior written approval, may erect a sign on the exterior walls of the Premises; provided any such sign shall be used to identify its company and shall conform to all laws, ordinances and regulations pertaining thereto. Tenant shall be solely responsible for the installation and, prior to the termination or expiration of the Lease, the removal of the sign including any damage to the Building occasioned by the installation and/or removal of such sign. Tenant shall place no sign upon the roof of the Premises, nor shall Tenant allow such sign as may be permitted under the terms of this Lease to be attached to any part of the roof, including the flashing of the Premises.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior written consent of Landlord, assign this Lease or any interest hereunder, or sublet the Premises or any part thereof, or permit the use of the Premises by any party other than Tenant. Under no circumstances whatsoever shall Tenant be permitted to sublease or assign the Premises to other tenants of Landlord or its affiliates in the park in which the Premises are located. Consent by Landlord to any assignment or sublease shall not destroy this provision and all later assignments or subleases shall be made likewise only on the prior written consent of Landlord (on the same basis as aforesaid). If Tenant is a corporation, partnership, joint venture or other entity, any transfer, sale or other disposition of the stock or interest of Tenant, which may or does cause a change in control of Tenant shall be deemed an assignment of this Lease. Each assignee of Tenant shall become directly liable to Landlord for all obligations of Tenant hereunder. No sublease or assignment by Tenant shall relieve Tenant of any liability hereunder. To the extent Tenant receives rents or other payments from any such sublessee or assignee in excess of the rental payable to Landlord hereunder, Tenant shall immediately pay such excess amount to Landlord as additional rent hereunder, and Tenant shall and does hereby authorize Landlord directly to collect any and all such sums from such assignee or sublessee, as the case may be.
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16. MECHANIC’S LIEN. Tenant shall have no authority, express or implied, to create or place any mechanic’s or other lien or encumbrance of any kind or nature whatsoever upon, or in any manner to bind, the interest of Landlord in the Premises or to charge the rentals payable hereunder for any claim in favor of any person. Any such claim shall affect, and each such lien shall attach, if at all, only to the leasehold interest granted to Tenant by this instrument. Tenant shall pay or cause to be paid all sums legally due and payable for any labor performed or materials furnished in connection with any work performed at Tenant’s request on the Premises on which any lien is or can be validly and legally asserted against its leasehold interest in the Premises or the improvements thereon. Tenant will save and hold Landlord harmless from and against any and all loss, cost or expense (including court costs and attorneys’ fees) based on or arising out of claims or liens asserted against the leasehold estate or the right, title and interest of Landlord in the Premises or under the terms of this Lease. If any such lien, encumbrance or charge is filed against all or any part of the Premises, Tenant shall cause the same to be discharged by payment, satisfaction or posting of bond, within thirty (30) days after Tenant receives notice of filing of such lien. If Tenant fails to cause any such lien, encumbrance or charge to be discharged, or removed by bond as a matter of law in the State of Georgia, within the permitted time, Landlord may cause it to be discharged and may make any payment which Landlord, in Landlord’s sole judgment, considers necessary, desirable or proper in order to do so. If Landlord makes any such payment, all amounts paid by Landlord shall bear interest at the Default Interest Rate from the date of payment by Landlord and shall be payable by Tenant to Landlord upon demand. Notwithstanding anything contained herein to the contrary, the foregoing covenant shall survive the expiration or termination of this Lease.
17. DEFAULT BY TENANT.
(a) Each of the following events shall constitute an “Event of Default” by Tenant under this Lease:
(i) if Tenant shall fail to pay when due (x) any Base Rental to be made by Tenant hereunder and shall not cure such failure within five (5) days after the due date, provided, however, that said grace period shall apply only with respect to the first two (2) times in a given calendar year that Tenant shall fail to pay Base Rental when due under this Lease, and Tenant shall be in default under this Lease on the first (1st) day after the due date thereof for any subsequent Base Rental payment not paid when due during such calendar year, or (y) within five (5) days after written notice thereof from Landlord as to any additional rental or other payments due hereunder, as the case may be; or
(ii) if Tenant shall violate or breach, or shall fail fully and completely to observe, keep, satisfy, perform, and comply with, any agreement, term, covenant, condition, requirement, restriction, or provision of this Lease (other than the payment of rent or any other payment to be made by Tenant), and shall not cure such failure within thirty (30) days after Landlord gives Tenant written notice thereof; or
(iii) if the Premises are deserted or abandoned; or
(iv) if Tenant’s interest in the Premises is levied upon; or
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(v) if any petition is filed by or against Tenant under any Section or Chapter of the Federal Bankruptcy Code, and in the case of a petition filed against Tenant, such petition is not dismissed within sixty (60) days of such filing; or if Tenant becomes insolvent or transfers property in fraud of creditors; or Tenant, whether voluntarily or involuntarily, takes advantage of any debtor relief proceedings under any present or future law, whereby the rent or any part thereof is, or is proposed to be, reduced or payment thereof deferred; or if Tenant makes an assignment for the benefit of creditors; or if a receiver is appointed for any of Tenant’s assets.
For the purposes of the Events of Default specified in clause (v) above, the word “Tenant” shall include, without limitation; (i) any party comprising Tenant, should more than one person or entity execute this Lease as Tenant, or any manager, general partner or joint venturer of Tenant or any such party; and (ii) any person or entity now or hereafter liable, whether primarily, secondarily, or contingently, for the performance of the duties and obligations of Tenant under this Lease, including without limitation any principal, maker, endorser, guarantor or surety.
(b) Upon the occurrence of any Event of Default, Landlord may pursue any one or more of the following remedies, in addition to any other remedies provided under this Lease, at law or in equity, separately or concurrently or in any combination, without any notice (except as specifically provided herein) or demand whatsoever and without prejudice to any other remedy which it may have for possession of the Premises or for arrearages in rent or other amounts payable to Landlord:
(i) Landlord may terminate this Lease by giving Tenant written notice of termination, in which event Tenant shall immediately quit and vacate the Premises and deliver and surrender possession of the Premises to Landlord, and this Lease shall be terminated at the time designated by Landlord in its notice of termination to Tenant; provided, however, that no termination of this Lease prior to the normal expiration hereof shall affect Landlord’s right to collect rent for the period prior to termination; or
(ii) with or without terminating this Lease, Landlord may enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises, by force if necessary, and do whatever Tenant is obligated to do under the terms of this Lease; and Tenant agrees to reimburse Landlord on demand for any expenses which Landlord may incur in thus effecting compliance with Tenant’s obligations under this Lease, all without being liable for prosecution or any claim for damages; or
(iii) Any damage or loss of rent sustained by Landlord may be recovered by Landlord, at Landlord’s option, at the time of termination of this Lease, the time of the reletting, or in separate actions, from time to time, as said damage shall have been made more easily ascertainable by successive relettings, or at Landlord’s option in a single proceeding deferred until the expiration of the term (in which event Tenant hereby agrees that the cause of action shall not be deemed to have accrued until the date of expiration of said term) or in a single proceeding prior to either the time of reletting or the expiration of the term. If Landlord elects to repossess the Premises without terminating this Lease, then Tenant shall be liable for and shall pay to Landlord all rent and other indebtedness accrued to the date of such repossession, plus rent required to be paid by Tenant to Landlord during the remainder of this Lease until the date of expiration of the term, diminished by any net sums thereafter received by Landlord through reletting the Premises during such period (after deducting expenses incurred by Landlord). In no event shall Tenant be entitled to any excess of any rent obtained by reletting over and above the rent herein reserved. Actions to collect amounts due from Tenant as provided herein may be brought from time to time, on one or more occasions, without the necessity of Landlord’s waiting until expiration of the term. Upon termination of this Lease or repossession of the Premises, Landlord shall have no obligation to relet or attempt to relet the Premises or any portion thereof or to collect rental after reletting; and in the event of reletting Landlord may relet the whole or any portion of the Premises for any period, to any tenant, and for any use and purpose on such terms and at such rentals as Landlord in its exclusive judgment may determine; or
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(iv) Landlord may recover from Tenant all damages it may incur by reason of such breach, including without limitation, (i) the cost of recovering the Premises, (ii) reasonable attorney’s fees and costs, and (iii) the difference between (A) the present value (discounted at eight percent (8%) per annum), as of the date of the occurrence of the Event of Default, of the Base Rental that would have become due and payable for the remainder of the term of this Lease, and (B) the present value (discounted to present value at eight percent (8%) per annum), as of the date of the occurrence of the Event of Default, of the Base Rental for the remainder of the term of this Lease if the Base Rental were set at the “Prevailing Market Rate” (as herein defined); provided, however, the difference between (iii) (A) and (iii) (B) (hereinafter referred to as the “Compensation for Lost Base Rent”) shall never be less than zero; provided further, however, that payment by Tenant of the Compensation for Lost Base Rental shall not constitute a penalty or forfeiture, but shall constitute full liquidated damages due to Landlord as a result of the Base Rental payments Landlord will not receive during the remainder of the term of this Lease as a result of Tenant’s default. Landlord and Tenant acknowledge that Landlord’s actual damages in the event of a default by Tenant under this Lease will be difficult to ascertain, and that the liquidated damages provided above as to lost Base Rental payments are reasonable liquidated damages and represent the parties’ best estimate of such damages. The parties expressly acknowledge that the foregoing liquidated damages are intended not as a penalty, but as full liquidated damages, as permitted by O.C.G.A. § 13-6-7. The Compensation for Lost Base Rental shall be due and payable upon demand. If the Compensation for Lost Base Rental is not paid by Tenant to Landlord upon demand, the Compensation for Lost Base Rental shall bear interest at the Default Rate of Interest until the unpaid Compensation for Lost Base Rental and all interest accrued thereon at the Default Rate of Interest has been paid in full. The “Prevailing Market Rate” of the Premises means the rate at which a Landlord under no compulsion to lease the Premises and a Tenant under no compulsion to lease the Premises would determine as rent for the remainder of the term of this Lease, as of the date of occurrence of the Event of Default, assuming that rent payments would begin immediately, and also taking into consideration the quality, size, design, and location of the Premises, as well as the cost to retrofit and/or renovate the Premises, and the rent for comparable buildings located in the vicinity of the Premises.
(c) Landlord’s pursuit of any one or more of the remedies provided in this Lease shall not constitute an election of remedies excluding the election of another remedy or other remedies, or a forfeiture or waiver of any rent or other amounts payable under this Lease by Tenant or of any damages or other sums accruing to Landlord by reason of Tenant’s violation of any provision of this Lease. No action taken by or on behalf of Landlord shall be construed to mean acceptance of a surrender of this Lease. No failure of Landlord to pursue or exercise any of Landlord’s powers, rights, or remedies or to insist upon strict and exact compliance by Tenant with any provision of this Lease, and no custom or practice at variance with the terms of this Lease, shall constitute a waiver by Landlord of the right to demand strict and exact compliance with the terms and conditions of this Lease.
(d) LESSOR AND LESSEE SHALL AND EACH DOES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE OR ITS TERMINATION, THE RELATIONSHIP OF LESSOR AND LESSEE, LESSEE’S USE OR OCCUPANCY OF THE PREMISES OR ANY CLAIM OF INJURY OR DAMAGE AND ANY EMERGENCY STATUTORY OR ANY OTHER STATUTORY REMEDY. IN THE EVENT LESSOR COMMENCES ANY SUMMARY PROCEEDING FOR NONPAYMENT OF ANNUAL BASE RENT OR ADDITIONAL RENT, OR COMMENCES ANY OTHER ACTION OR PROCEEDING AGAINST LESSEE IN CONNECTION WITH THIS LEASE, LESSEE WILL INTERPOSE NO COUNTERCLAIM OF WHATEVER NATURE OR DESCRIPTION IN ANY SUCH PROCEEDING.
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(e) Nothing contained herein shall prevent the enforcement of any claim Landlord may have against Tenant for anticipatory breach of the unexpired Term. In the event of a breach or anticipatory breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other remedies were not provided for herein.
18. RE-ENTRY BY LANDLORD. No re-entry by Landlord or any action brought by Landlord to oust Tenant from the Premises shall operate to terminate this Lease unless Landlord shall give written notice of termination to Tenant, in which event Tenant’s liability shall be as herein provided.
19. REMOVAL OF FIXTURES. Tenant may, if not in default hereunder, and shall, if so requested by Landlord, prior to the expiration of this Lease, or any extension thereof, remove all fixtures and equipment which it has placed in the Premises, provided Tenant repairs all damage to the Premises caused by such removal.
20. LANDLORD’S LIEN. In addition to any statutory lien for rent in Landlord’s favor, Landlord shall have and Tenant hereby grants to Landlord a continuing security interest for all Base Rental, Additional Rental and other sums of money becoming due hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture, inventory, accounts, contract rights, chattel paper and other personal property of Tenant situated on the Premises, and such property shall not be removed therefrom without the consent of Landlord until all arrearages in rent as well as any and all other sums of money then due to Landlord hereunder all first have been paid and discharged. In the event of a default under this Lease, Landlord shall have, in addition to any other remedies provided herein or by law, all rights and remedies under the Uniform Commercial Code. Tenant hereby agrees to execute such financing statements and other instruments necessary or desirable in Landlord’s discretion to perfect the security interest hereby created.
21. ENTRY FOR CARDING. Landlord may card the Premises “For Rent” one hundred eighty (180) days before the termination of this Lease or “For Sale” at any time. At any time during the term of the Lease, Landlord may enter the Premises at reasonable hours to exhibit same to prospective purchasers or tenants.
22. EFFECT OF TERMINATION OF LEASE. No termination of this Lease prior to the normal ending thereof, by lapse of time or otherwise, shall affect Landlord’s right to collect any amounts owing by Tenant to Landlord in accordance with the terms hereof.
23. QUIET POSSESSION. Landlord warrants that Tenant, on paying the Base Rental, Additional Rental and other payments provided for hereby and on keeping, observing and performing all other terms, conditions and provisions herein contained on the part of the Tenant to be kept, observed, and performed, shall during the full Lease term, peaceably and quietly have, hold and enjoy the Premises for the full term of years in this Lease, subject to the terms, conditions and provisions hereof.
24. SURRENDER OF PREMISES. At termination of this Lease, Tenant shall surrender the Premises and keys thereof to Landlord in the same condition as at commencement of term, normal wear and tear only accepted.
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25. SUBORDINATION. This Lease and all of the rights of Tenant hereunder are subject and subordinate at all times to any security deed, deed to secure debt, mortgage or similar security instrument which now or hereafter affects the real property of which the Premises form a part (a “Security Instrument”), and to all renewals, modifications, consolidations, replacements and extensions thereof. This clause shall be self-operative and no further instrument of subordination shall be required by any holder of a Security Instrument. In confirmation of such subordination, Tenant shall execute promptly any certificate that Landlord may reasonably request related thereto. If Landlord elects to have this Lease superior to any applicable Security Instrument and its election is signified in some recorded instrument, then this Lease shall be superior to such Security Instrument, notwithstanding any other provision hereof. Tenant agrees that if it sends any notice to Landlord concerning Landlord’s obligations hereunder, Tenant will also send a copy of any such notice to the holder of any Security Instrument (so long as Tenant has been previously notified in writing of the name and address of such holder), and in the event any notice specifies some default on the part of Landlord, Tenant agrees to afford the holder of any Security Instrument a reasonable time to effect a cure of such default for and on behalf of Landlord, if the Landlord fails to cure the default. Tenant agrees to execute such documents with respect thereto as may be reasonably required by such holder. Within ten (10) days after request therefor by Landlord, Tenant agrees to execute and deliver in recordable form, an estoppel certificate to any holder of a Security Instrument or proposed Security Instrument or proposed purchaser or to Landlord or to such other party as Landlord may request certifying (if such be the case) that this Lease is unmodified and in full force and effect (and if there has been modification, that the same is in full force and effect as modified and stating the modifications); that there are no defenses or offsets against the enforcement thereof or stating those claimed by Tenant; and stating the date to which rentals and other sums due hereunder are paid. Such certificate shall also include such other information as may be required or requested by Landlord or the addressee thereof. The failure by Tenant to deliver any such certificate within 10 days after request therefor shall be deemed to constitute the certification by Tenant that this Lease is in full force and effect and has not been modified except as may be represented by Landlord, that there are no defenses or offsets against the enforcement thereof, and that Landlord is in full and timely compliance with all of its obligations thereunder. If Tenant fails to deliver such estoppel certificate within said ten (10) days, Tenant shall and does hereby irrevocably appoint Landlord as Tenant’s attorney in fact to execute and deliver such certificate. Tenant shall, in the event any proceedings are brought for the foreclosure of or in the event of the exercise of power of sale under any Security Instrument made by Landlord covering the Premises, attorn to the purchaser at any such sale and recognize the purchaser as Landlord hereunder.
26. INDEMNITY. Tenant shall pay, and shall and does hereby protect, indemnify and hold harmless Landlord and Landlord’s employees and agents from, against and in respect of, all liabilities, damages, losses, costs, expenses (including reasonable attorneys’ fees and expenses of Landlord), causes of action, suits, claims, demands and judgments arising out of, by reason of or in connection with: (i) injury to or the death of persons or damage to property occurring during the term of this Lease (x) on the Premises or the Project, or (y) in any manner arising out of, by reason of or in connection with the use or occupancy of the Premises (including any vacation or abandonment of the Premises) during the term of this Lease, by Tenant or Tenant’s agents, employees, licensees, invitees, subtenants or assignees, or (z) resulting from the condition of the Premises; (ii) the violation or breach of, or the failure of Tenant to fully and completely keep, observe, satisfy, perform and comply with, any agreement, term, covenants, condition, requirement, provision or restriction of this Lease; or (iii) the violation during the term of this Lease by Tenant or Tenant’s agents, employees, licensees, invitees, subtenants or assignees of any law, code, ordinance, rule, regulation or other governmental requirement affecting the Premises or the use or occupancy thereof. Nothing contained in this paragraph shall be deemed to entitle any person or entity to indemnification against its sole negligence. The provisions of this paragraph 26 shall survive the expiration of the term of, or any earlier termination of, this Lease.
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27. LANDLORD’S LIABILITY. Landlord shall not have any liability to Tenant or any of Tenant’s officers, employees or agents for any damage or injury to person or property, or both, directly or indirectly caused by or arising from, in whole or in part, any act or failure to act of Landlord or any of Landlord’s officers, employees, members, managers, partners or agents (a “Landlord Party”), unless such damage or injury is the direct result of Landlord’s or such Landlord Party’s willful or grossly negligent act or omission. Neither Tenant nor any of Tenant’s officers, employees, members, managers, partners or agents shall sue or otherwise seek recourse against Landlord on any claim, demand, action or cause of action for any such damage to person or property, or both, except as provided above. Upon the sale of the Premises by Landlord and the assumption of Landlord’s obligations hereunder by the purchaser thereof, all obligations of the then-current Landlord under this Lease shall terminate. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, TENANT AGREES AND UNDERSTANDS THAT TENANT SHALL LOOK SOLELY TO THE ESTATE AND PROPERTY OF LANDLORD IN THE BUILDING OF WHICH THE PREMISES ARE A PART FOR THE ENFORCEMENT OF ANY JUDGMENT (OR OTHER JUDICIAL DECREE) REQUIRING THE PAYMENT OF MONEY BY LANDLORD TO TENANT BY REASON OF ANY DEFAULT OR BREACH BY LANDLORD IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS LEASE, IT BEING INTENDED HEREBY THAT NO OTHER ASSETS OF LANDLORD OR OF ANY OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR VENTURERS OF LANDLORD OR THE ENTITIES COMPRISING LANDLORD SHALL BE SUBJECT TO LEVY, EXECUTION, ATTACHMENT OR ANY OTHER LEGAL PROCESS FOR THE ENFORCEMENT OR SATISFACTION OF THE REMEDIES PURSUED BY TENANT IN THE EVENT OF SUCH DEFAULT OR BREACH.
28. BROKERAGE INDEMNITY. Landlord and Tenant hereby warrant to the other that neither has engaged the services of any broker, agent or finder except Broker, which shall be paid a commission for such services by Landlord pursuant to a separate agreement. Except for such commission payable by Landlord to Broker, Landlord and Tenant hereby indemnify and hold each other harmless from any claim, demand, liability, or cause of action for any brokerage commission, fee, or other similar compensation or cost arising out of the acts of the other party hereto in connection with this Lease or the interest created hereby or any sublease or assignment entered into by Tenant.
29. NO ESTATE IN LAND. This contract shall create the relationship of landlord and tenant between Landlord and Tenant; no estate shall pass out of Landlord; Tenant has only a usufruct, not subject to levy and sale, and not assignable by Tenant except by Landlord’s consent.
30. HOLDING OVER. If Tenant remains in possession of the Premises after expiration of the term hereof, with Landlord’s acquiescence and without any express agreement of parties, Tenant shall be a tenant-at sufferance with Base Rental payable to Landlord at 200% of the Base Rental rate in effect at the end of the Lease and otherwise subject to the terms and conditions of this Lease; and there shall be no renewal of this Lease by operation of law. In addition to such rental, Tenant shall be liable for all damages to Landlord arising because of Tenant’s holdover.
31. RIGHTS CUMULATIVE. All rights, powers and privileges conferred hereunder upon the parties hereto shall be cumulative, but not restrictive to those given by law. No right or remedy granted to Landlord herein is intended to be exclusive of any other right or remedy, and each and every right and remedy herein provided shall be cumulative and in addition to any other right or remedy hereunder, or now or hereafter existing at law or in equity or by statute.
32. WAIVER OF RIGHTS. No failure of Landlord or Tenant to exercise any power given Landlord or Tenant hereunder, or to insist upon strict compliance by Landlord or Tenant with its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of Landlord’s or Tenant’s right to demand exact compliance with the terms hereof.
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33. NOTICES. Any and all notices, elections, demands, requests, and responses thereto permitted or required to be given under this Lease shall be in writing, signed by or on behalf of the party giving the same, and shall be deemed to have been properly given or served and shall be effective upon being personally delivered or upon being deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, or sent by electronic mail with confirmation of receipt, to the other party at the address of such other party set forth below or at such other address as such other party may designate by notice specifically designated as a notice of change of address and given in accordance herewith; provided, however, that the time period in which a response to any such notice, election, demand or request must be given shall commence on the date of receipt thereof; and provided further that no notice of change of address shall be effective until the date of receipt thereof. Personal delivery to a party or to any officer, partner, agent or employee of such party at said address shall constitute receipt. Rejection or other refusal to accept or inability to deliver because of changed address of which no notice has been received shall also constitute receipt. Any such notice, demand, or request shall be addressed to Landlord or Tenant as the case may be at the address on page 1 of this Lease.
34. TIME OF ESSENCE. Time is of the essence of this Agreement.
35. DEFINITIONS. “Landlord” as used in this Lease shall include Landlord and its heirs, representatives, assigns, and successors in title to Premises. “Tenant” shall include Tenant and its heirs, representatives and successors, and, if this Lease shall be validly assigned or sublet, shall include Tenant’s assignees or sublessees, as to Premises covered by such assignment or sublease. “Landlord” and “Tenant” shall include male and female, singular and plural, corporation, partnership, or individual, as may be appropriate for the particular parties. “Default Interest Rate” shall be the lesser of (i) the then highest permissible rate in the State of Georgia or (ii) three (3%) percent per annum in excess of the prime rate announced publicly from time to time by SunTrust Bank, Atlanta, Georgia, or its success.
36. EFFECT OF SUBMISSION. Submission of this Lease for examination and consideration does not constitute a reservation of or option for the Premises. This instrument shall become effective as a lease only upon the full execution and delivery of this instrument by both Landlord and Tenant.
37. HAZARDOUS MATERIALS
(a) As used herein the term “Hazardous Material” means any hazardous or toxic substance, material or waste which is or becomes regulated by any local governmental authority, the State in which the Building is located or the United States Government. The term “Hazardous Material” includes, without limitation: (i) any material or substance which is designated as a “hazardous substance” pursuant to Section 311 of the Federal Water Pollution Act (33 U.S.C. Sec. 1317); (ii) defined as “hazardous waste” pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq. (42 U.S.C. sec. 6903); (iii) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sec. 9601 et seq. (42 U.S.C. Sec. 6901) (“CERCLA”); (iv) asbestos or asbestos containing material; (v) petroleum and petroleum-based products; (vi) urea formaldehyde foam insulation; (vii) polychlorinated byphenyls (“PCBs”); and (viii) freon and other chlorofluorocarbons.
(b) Tenant covenants and agrees that: (i) neither Tenant nor any of Tenant’s agents, employees, contractors, invitees, assignees or sublessees shall cause any Hazardous Materials to be brought upon, kept, stored or used in or on the Premises or any other portion of the Project without Landlord’s prior written consent, which consent Landlord may withhold in its sole discretion; and (ii) neither Tenant nor any of Tenant’s agents, employees, contractors, invitees, assignees or sublessees shall cause any Hazardous Materials to be disposed of, discharged or released, in, on or from the Premises or any other portion of the Building, and, in the event of any such disposal, discharge or release, Tenant shall cause the complete clean-up thereof and the removal and elimination of all Hazardous Materials so disposed of, discharged or released.
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(c) Tenant shall and does hereby indemnify, protect, defend and save harmless Landlord and its partners, officers, directors, shareholders, employees and agents from and against any and all claims, judgments, damages, penalties, fines, costs, liabilities, losses and expenses, including reasonable attorneys’ fees, court costs, consultants’ fees and expert fees, arising during or after the term of this Lease as a result of any breach of the covenants contained in this Paragraph or any disposal, discharge or release of any Hazardous Materials in, on or from the Premises during the term of this Lease, including any such liability of Tenant to Landlord or otherwise under CERCLA, any so-called “Superfund” or “Superlien” law, or any other Federal, state, local or other statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Material. In furtherance of the foregoing, in the event Landlord is made a party to any litigation commenced by or against Tenant, or if Landlord shall determine in its sole discretion that it must intervene in such litigation to protect its interest as “Landlord” under this Lease, then Tenant shall defend, protect and hold harmless, using attorneys selected by Landlord, and Tenant shall pay all costs, expenses and attorneys’ fees incurred or paid by Landlord in connection with such litigation. This indemnification includes costs incurred in connection with the investigation of site conditions or any clean-up, repair, removal or detoxification work, whether or not required by any federal, state or local governmental requirement or governmental authority. This indemnification shall survive the expiration of the term of, or earlier termination of, this Lease.
(d) Tenant expressly acknowledges and agrees that Landlord may deem its remedies at law for the violation or breach of the covenants set forth in this Paragraph to be inadequate, and that all equitable remedies (including, without limitation, specific performance), shall be available to Landlord to enforce the covenants of Tenant set forth herein.
38. SECURITY DEPOSIT. At the time of execution of this Lease, Tenant shall pay to Landlord the Security Deposit described on page 1 of this Lease to be held by Landlord as security for the performance by Tenant of all obligations imposed on Tenant pursuant to this Lease. Landlord shall not be required to apply all or any portion of said security deposit with respect to any particular violation or default by Tenant. If Landlord conveys Landlord’s interest under this Lease, the security deposit, or any part thereof not previously applied, may be turned over by Landlord to Landlord’s grantee, and, if so turned over, Tenant agrees to look solely to such grantee for the proper application and return thereof. Any mortgagee or ground lessor shall not be responsible to Tenant for the return or application of any such security deposit, whether or not it succeeds to the position of Landlord hereunder, unless such security deposit shall have been received in hand by such mortgagee or ground lessor. Landlord shall not be required to keep such deposit separate from its general funds and Tenant shall not be entitled to the payment of, or credit for, interest on such deposit. Should the security deposit, or any portion thereof be appropriated and applied by Landlord for the payment of overdue rental and other sums due and payable to Landlord by Tenant hereunder, then Tenant shall, upon the written demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore the security deposit to the original sum deposited, and Tenant’s failure to do so within five (5) days after receipt of such demand shall constitute a default under this Lease. Should Tenant comply with all of the terms, covenants and conditions of this Lease and promptly pay all of the rental herein provided for as it falls due, and all other sums payable by Tenant to Landlord hereunder, the security deposit shall be returned in full to Tenant at the end of the term of this Lease, or upon the earlier termination of this Lease.
39. AMERICANS WITH DISABILITIES ACT. Tenant agrees, at its sole cost and expense, to promptly comply with all requirements of the Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq., as amended from time to time (the “Act”), and to promptly furnish to Landlord copies of all notices received by Tenant from time to time regarding compliance with the Act from any person whatsoever, including, without limitation, disabled persons, governmental agencies or federal or state courts; provided, however, that with regard to the exterior of the Building, Landlord shall be responsible for complying with all aspects of Title III of the Act, Sections 300 - 310 (and all rules and regulations promulgated thereunder) applicable to “commercial facilities” (as defined in the ADA) (i) pertaining to the removal of (a) architectural barriers or (b) communication barriers that are structural in nature or (ii) requiring that alterations to the exterior of the Building be readily accessible to and usable by individuals with disabilities.
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40. REPRESENTATIONS OF TENANT. If Tenant is a corporation, partnership or limited liability company, each of the person executing this Lease on behalf of Tenant represents and warrants that Tenant is duly organized and existing, is qualified to do business in the State of Georgia, has full right and authority to enter into this Lease, that the persons signing on behalf of Tenant are authorized to do so by appropriate corporation, partnership or limited liability company action and that the terms, conditions and covenants in this Lease are enforceable against Tenant. If Tenant is a corporation, partnership or limited liability company, Tenant will deliver certified resolutions to Landlord, upon request, evidencing that the execution and delivery of this Lease has been duly authorized and properly executed, and will deliver such other evidence of existence, authority and good standing as Landlord shall require.
41. MISCELLANEOUS. Paragraph captions herein are for Landlord’s and Tenant’s convenience only and neither limit nor amplify the provisions of this Lease. If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the term of this Lease, then and in such event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties hereto that in lieu of each clause or provision of this Lease that is so illegal, invalid or unenforceable, there shall be added as a part of this Lease a clause or provision as similar in form and substance to such illegal, invalid or unenforceable clause or provision as may be possible and as will be legal, valid and enforceable. Where provision is made in this Lease for Landlord’s consent and Tenant shall request such consent and Landlord shall fail or refuse to give such consent, Tenant shall not be entitled to any damages for any withholding by Landlord of its consent, it being intended that Tenant’s sole remedy shall be an action for specific performance or injunction, and that such remedy shall be available only in those cases where Landlord has expressly agreed in writing not to unreasonably withhold its consent. Furthermore, whenever Tenant requests Landlord’s consent or approval (whether or not provided for herein), Tenant shall pay to Landlord, on demand, as an additional charge, any expenses incurred by Landlord (including without limitation legal fees and costs, if any) in connection therewith without limitation. Georgia law shall govern and control the construction and application of this Lease. If Landlord shall incur expenses for attorneys’ fees related to the enforcement by Landlord of Tenant’s obligations hereunder, Tenant shall, promptly upon demand therefor by Landlord, pay to Landlord the amount of such expenses. This Lease constitutes the sole and entire agreement between the parties hereto, and no modification hereof shall be binding unless set forth in writing, signed by all parties hereto and attached hereto.
[Executions on following page]
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IN WITNESS WHEREOF, the parties who are individuals have set their hands and seals, and the parties who are corporations have caused this instrument to be duly executed by its proper officers, as of the day and year first above written.
| LANDLORD: | ||
| GREENLEAF PARTNERS L091, LLC, a Delaware limited liability company | ||
| By: | /s/ Mark Buchanan | |
| Mark Buchanan, Chief of Staff | ||
| TENANT: | ||
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Barry Rubens | |
| Name: | Barry Rubens | |
| Title: | CEO | |
| 6/5/2024 | ||
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EXHIBIT “C”
RULES AND REGULATIONS
| 1. | The sidewalks, stairways, truck courts, delivery doors, Common Areas and drives shall not be obstructed or used for any purposes other than those of ingress and egress. |
| 2. | The exterior windows of the Premises shall not be covered or obstructed, other than by building standard blinds. |
| 3. | Window blinds must be of such shape, color and material as may be prescribed by Landlord, and shall be erected only with Landlord’s consent at the expense of Tenant. No awning shall be placed on the Building. |
| 4. | The water closets, drains, sewer drain, manholes and other water apparatus shall not be used for any purposes other than those for which they were constructed , and no sweepings, rubbish, or other obstructing substances shall be thrown therein. The cost of repairing any damage to such apparatus or to the associated system resulting from Tenant’s misuse shall be assessed to Tenant as Additional Rent due under the Lease. |
| 5. | No advertisement or other notice, which is visible from the exterior of the Building, shall be inscribed, painted or affixed on any part of the outside or inside of said Building, except upon the sign band, front and rear exterior doors, or upon the plate glass windows of the Premises, in accordance with signage provisions of the Lease, and of such order, size and style, and at such places as shall be designated by Landlord in accordance with Sign Criteria. |
| 6. | Tenant shall not do or permit to be done in the Premises, or bring or keep anything therein, which shall in any way increase the rate of fire insurance on the Building, or on property kept therein (only artificial and fire resistant Christmas trees and/or decorations are permitted), or obstruct or interfere with the rights of other tenants, or in any way injure or annoy them, or conflict with any of the rules or ordinances pertaining to health or safety promulgated by any governmental entity having jurisdiction over the Building. Tenant will not allow or create any obstructions in the Premises, which are in violation of fire codes. |
| 7. | Tenant shall conduct its business in the Premises in such a manner so as not to disturb any other tenant’s right of quiet enjoyment of its premises. |
| 8. | Nothing shall be thrown by Tenant out of the windows or doors or off the roof or out of the skylights of the Building. |
| 9. | No rooms shall be occupied or used as a dwelling place or a sleeping area at any time. |
| 10. | No part of the Building shall be used or in any way appropriated for gambling, immoral or other unlawful practices, and no intoxicating liquors shall be sold in the Building. |
| 11. | Tenant shall strictly comply with any and all regulations set forth by Landlord for the operation, maintenance and management of the parking areas in the Land. |
| 12. | Reserved parking spaces are not permitted unless specifically stated in the Lease. If there are reserved parking spaces marked on the pavement, then all tenants should abide by such reservation. However, Landlord is not responsible for policing such reserved spaces. |
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| 13. | No debris, trash, boxes, equipment, furniture or fixtures will be permitted in the truck courts. All trash must be securely placed in the dumpster , PROVIDED BY TENANT so that it does not litter the truck courts. It is also necessary that Tenant use its own dumpster, and Tenant is responsible for clearly marking its company name on its dumpster. In the event that Tenant violates the provisions of this paragraph, and it becomes necessary for Landlord to clean up the truck court area by reason of such violation, then the cost of such cleanup shall be assessed to Tenant as Additional Rent under the Lease. |
| 14. | No boats, trailers, bikes, trucks, equipment, etc. shall be stored in any Common Areas of the Land, including the truck courts , without prior written consent from Landlord. If Tenant establishes written consent, such storage shall be at Tenant’s sole risk, and Landlord will not be held responsible for any theft or damage that may occur during such storage. The truck courts are intended for deliveries and shipments only. All vehicles brought into the Land shall have a current tag and registration or shall be deemed abandoned or stored in violation hereof and shall be towed at the expense of the responsible tenant. |
| 15. | No pets shall be allowed in the Common Areas of the Land. |
| 16. | All tenants and occupants shall observe strict care not to leave the windows or doors of the Premises open when it rains or snows and, if Tenant shall default in its obligations under this paragraph, Tenant shall be responsible for any injury or damage sustained by other tenants or by Landlord for damage to paint, plastering or other parts of the Building resulting from such default. |
| 17. | No alterations shall be made to any part of the Premises or Building (i.e. partitions, walls, doors or windows, nailing, boring or screwing into the woodwork or plastering, excluding the hanging of pictures or artwork) nor shall any connection be made to the electric wires or gas or electric fixtures, without the consent in writing on each occasion of Landlord. |
| 18. | Tenant shall monitor all installation of communications and other non-electrical wiring in the Premises to ensure that all installed wiring is of a plenum-rated type and that the installer strictly complies with all relevant building and fire codes concerning plenum-rated wiring. |
| 19. | All glass, locks and trim work in or upon the doors and windows of the Building that are within the Premises shall be kept intact, and when any part thereof shall be broken, the same shall be immediately replaced or repaired and put in order under the direction and to the satisfaction of the Landlord. |
| 20. | No additional locks or latches shall be put upon any door without the written consent of Landlord. Tenant, at the termination of its Lease of the Premises, shall return to Landlord all keys to doors in and to the Premises. |
| 21. | Landlord reserves the right to prescribe the weight and position of iron safes or other heavy articles in the Premises. |
| 22. | The use of burning fluid, camphor, alcohol, benzene, kerosene or anything except gas or electricity for lighting the Premises is prohibited. No offensive gases or liquids will be permitted in the Building. |
| 23. | Ashtrays, trash cans, benches, etc. are not permitted at the front entrance of the Premises. The exterior of the rear of the Premises may be used as a smoking area, so long as ashtrays are provided by Tenant and used. If Tenant shall permit the littering of any Common Areas of the Land with cigarette butts, Tenant shall be charged with the cleanup of same as Additional Rent due under the Lease. |
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| 24. | Tenant shall not at any time display a “For Rent or For Lease” sign upon the Premises, Building or Land without Landlord’s express written consent. |
| 25. | In walking through the Common Areas of the Land, Tenant is required at all times to use the sidewalks and walkways. Tenant is not permitted at any time to walk on the grass, through bushes or landscaped areas. |
| 26. | Tenant is not permitted to have access to the roof of any building in the Land at any time or be allowed on the roof of any building in the Land without the prior consent of the Landlord. |
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EXHIBIT D
SPECIAL STIPULATIONS
| 1. | Tenant improvement work by landlord will cap out at $3,000.00. This could include: Roll up door to be repaired where it is operational. (This will be done first) Carpet in front office replaced. |
Front office area painted
Door installed between suites 130 and 140 (office and warehouse doors) Warehouse
lights replaced
Ensure HVAC is operational at lease signing
| 2. | No tenant improvement work will be done by landlord over the $3,000 maximum threshold. |
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Exhibit 10.11
SECOND LEASE AMENDMENT
ELAUWIT CONNECTION, INC.
This Lease Amendment is made and entered into on this day, the 2nd day of January 2025, by and between GREENLEAF INVESTMENT PARTNER L091, LLC (“Landlord”) and ELAUWIT CONNECTION, INC. (“Tenant).
WITNESSETH:
WHEREAS, the Landlord and Tenant have entered into a certain Lease (the “Lease”) dated December 7, 2023 for premises (“Premises”) consisting of approximately 1,750 rentable square feet located within the Premises of 1700 Alta Vista Drive, Suite 130, Columbia, SC 29223 (“Property”), commencing on January 1, 2023 and ending on December 31, 2023.
WHEREAS, the Landlord and Tenant agreed to amend the Lease dated May 31, 2024 for premises consisting of approximately 4,000 rentable square feet located within the Premises of 1700 Alta Vista Drive, Suite 130 and Suite 140, Columbia, SC 29223, commencing on July 1, 2024 and ending on June 30, 2026.
WHEREAS, the Landlord and Tenant wish to amend the Lease described, it being to the mutual benefit of all parties to do so.
NOW, THEREFORE, the parties hereto agree that the Lease shall be and amended as follows:
| A. | Tenant shall expand into Suite 120, located within the Premises at 1700 Alta Vista Drive, Columbia, SC 29223. Suite 120 consists of 1,950 rentable square feet, increasing the total rentable square footage of the Premises to 5,950 rentable square feet. | |
| B. | In addition to the Base Rent, the Tenant will continue to pay their proportionate share of Additional Expenses at a prorated rate of 62%. | |
| C. | This amendment will run concurrently with the existing terms and conditions of the Lease, commencing on February 1, 2025, and concluding on June 30, 2026. | |
| D. | Tenant shall provide a Security Deposit equivalent to one month's rent for the additional space, totaling $1,535.63. | |
| E. | Tenant shall have immediate access to suite 120 upon execution of this amendment |
| Term | Base Rent Annually | Base Rent Monthly | ||||||||
| 2/1/2025 - 6/30/2025 | $ | 56,227.50 | $ | 4,685.63 | ||||||
| 7/1/2025 - 6/30/2026 | $ | 58,488.50 | $ | 4,874.04 | ||||||
1. Landlord and Tenant each warrant and represent to the other that it has not dealt with any broker or real estate representative or consultant in connection with this Lease,
2. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.
3. Except as expressly modified herein, the terms and conditions of the Lease shall remain the same and shall remain in full force and effect during the Lease Extension Term. The terms and conditions are hereby ratified and confirmed by Landlord and Tenant.
It is agreed that in the event of a conflict or inconsistency between the Lease and this Lease Amendment, the terms of this Amendment shall control. All other terms and conditions of the aforementioned Lease shall remain in full force and effect other than as modified herein. Upon execution by all parties, this Amendment shall be attached to and form a part of said Lease. I understand and agree this is a legal representation of my signature.
IN WITNESS WHEREOF, the parties have executed this Amendment on the day and year above written.
| Landlord: GREENLEAF INVESTMENT PARTNERS L091, LLC | ||||
| By: | /s/ Mark Buchanan | |||
| Title: | Chief of Staff | |||
| Date: | January 6, 2025 | |||
| Tenant: ELAUWIT CONNECTION, INC. | ||||
| By: | /s/ Taylor Jones | |||
| Title: | President and CTO | |||
| Date: | January 3, 2025 | |||
Exhibit 10.12
PROMISSORY NOTE
| $1,000,000.00 | April 12, 2024 |
THIS PROMISSORY NOTE (the "Note") is made on April 12, 2024, by, and between
ELAUWIT CONNECTION, INC., a Delaware corporation having an address at 1520 Locust Street, Suite 901, Philadelphia, Pennsylvania 19102 (the "Borrower");
AND
MOTHERLODE, LLC, a Texas limited liability company having an address at 1905A Kramer Lane, Austin, Texas 78758 (the "Lender").
| 1. | BORROWER PROMISE TO PAY: |
The Borrower promises to pay to the order of Lender the principal amount of One Million and 00/100 Dollars ($1,000,000.00) in lawful money of the United States of America, together with any unpaid fees due under this Note.
| 2. | PAYMENTS, TERM AND INTEREST: |
The Term of the Loan shall be sixty (60) months. The outstanding principal shall bear interest at the fixed rate of six percent (6.00%) per annum for the Term of the Loan. Borrower shall pay equal monthly installments in the amount of $19,332.80 commencing May 1, 2024 and continuing on the first day of each succeeding month until maturity. The Note shall mature on April 30, 2029 at which time all outstanding principal and accrued charges, if any, shall be due and payable.
| 3. | PREPAYMENT: |
This Note may be prepaid in full or in part at any time, without penalty or premium.
| 4. | LATE CHARGE: If the Lender does not receive any payment due within Five (5) days of its due date, then for each such late payment the Borrower shall pay a late charge. The late charge shall be five (5.00%) percent of the unpaid amount due (inclusive of all accrued and unpaid interest in respect thereof). Acceptance by Lender of a late payment shall not be deemed or considered an election of remedies or waiver by Lender of rights at law or under this Note. The late charge specified in this Note is not intended nor shall be deemed as liquidated damages or a penalty. The late charge constitutes a material covenant of the loan and is a material inducement for the Lender to enter into this loan. |
| 5. | LENDER'S RIGHT OF ACCELERATION: The Lender may declare the unpaid principal, accrued interest, fees, and other amounts and charges specified under this Note due immediately upon the occurrence of an Event of Default, as defined below. Each of the following shall constitute an Event of Default: |
| i) | Ten (10) days default in any payment due under this Note; |
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| ii) | The Borrower's (i) application for or consent to the appointment of a receiver, trustee or liquidator of the Borrower for all or a substantial part of its properties or assets, (ii) admitting in writing its inability to pay its debts as they mature, (iii) making a general assignment for the benefit of creditors, (iv) being adjudicated a bankrupt or insolvent, or (v) filing a voluntary petition in bankruptcy, or a petition or answer seeking reorganization or an arrangement with creditors or taking advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law or if any corporate action shall be taken by the Borrower for the purpose of effecting any of the foregoing; or |
| iii) | An order, judgment or decree being entered, without the application, approval or consent of the Borrower by any court of competent jurisdiction, approving or seeking reorganization of the Borrower or of all or a substantial part of the properties or assets of the Borrower and such order, judgment or decree continuing unstayed and in effect for any period of sixty (60) days or more. |
The Lender's failure to accelerate for any cause shall not prevent the Lender from doing so for a later cause.
| 6. | WAIVER OF FORMAL ACTS: The Lender is not required to do any of the following before enforcing the Lender's rights under this Note: |
| i) | To demand payment of amounts due (known as Presentment); |
| ii) | To give notice that amounts due have not been paid (known as Notice of Dishonor); or |
| iii) | To obtain an official certificate of non-payment (known as a Protest). |
| 7. | TRIAL BY JURY: THE BORROWER AND LENDER AGREE THAT ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY LENDER OR THE BORROWER, ON OR WITH RESPECT TO THIS NOTE SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. THE LENDER AND THE BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY, AND WITH THE ADVICE OF THEIR RESPECTIVE COUNSEL, WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, THE BORROWER WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT THE LENDER WOULD NOT EXTEND CREDIT TO THE BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS NOTE. |
| 8. | CHANGE: This Note cannot be changed except in writing signed by the Borrower and the Lender, except that Lender may ( in its sole and absolute discretion) grant extensions in the time of payment of and reduction in the rate of interest on the monies due and owed under this Note. |
| 9. | COST OF COLLECTION: If the Borrower fails to comply with the terms of this Note, the Borrower will pay all of Lender's collection costs, including reasonable attorneys' fees, court costs and disbursements, incurred in enforcing the terms of this Note. |
| 10. | GOVERNING LAW: This Note is to be construed and enforced according to and governed by the laws of the State of Delaware. |
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IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed and delivered all as of the day and year first above written.
| BORROWER | ||
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Barry Rubens | |
| Barry Rubens, Chief Executive Officer | ||
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Exhibit 10.13
April 1, 2024
Endurance Opportunities I LLC
the Lender
Elauwit Connection, Inc.
the Borrower
|
Endurance – Elauwit Fixed Rate Loan Agreement
|
THIS LOAN AGREEMENT (this Agreement) is made on April 1, 2024 between:
| (1) | Endurance Opportunities I LLC, a limited liability company formed in the State of Wyoming whose principal place of business is at 1621 Central Avenue, Cheyenne, WY 82001 (the Lender); and |
| (2) | Elauwit Connections, Inc., a company incorporated in the State of Delaware whose principal place of business is at 109 East 17th Street, Cheyenne, WY, 82001 (the Borrower). |
BACKGROUND:
The Lender is willing to lend, and the Borrower is willing to borrow, $1,000,000 on the terms of this Agreement.
| 1. | Definitions |
| 1.1 | In this Agreement, the terms set forth below shall have the following meanings: |
Affiliate means, with respect to any Person, any other Person that controls, is controlled by, or is under common control with, that Person. For the purposes of this definition control 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 stock, through the right or power to appoint a majority of the board of directors, by contract or otherwise, and controlled by and under common control have corresponding meanings;
Borrower Account means the account of the Borrower with the following details:
Elauwit Connection, Inc.
TD Bank Wilmington, DE
or other account as the Borrower may designate from time to time as the “Borrower Account”;
Fixed Rate means 18.00 per cent. per annum;
Governmental Authority means any nation or government, any state or other political subdivision thereof, or any federal, state, local or foreign governmental or regulatory body, authority, bureau, agency division, branch, department, office or instrumentality or court or other judicial body, or any other entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, government;
Initial Loan Amount means $1,000,000.
Insolvency Event means the occurrence of any of the following events:
| (a) | the Borrower is dissolved (other than pursuant to a consolidation, amalgamation, or merger); |
| (b) | the Borrower becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; |
| (c) | the Borrower makes a general assignment, arrangement or composition with or for the benefit of its creditors; |
| (d) | the Borrower institutes or has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation and in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition either: (i) results in a judgement of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or (ii) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof; |
| (e) | the Borrower has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); |
| (f) | the Borrower seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; |
| (g) | the Borrower has a secured party to take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration, or other legal process levied, enforced, or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; |
| (h) | the Borrower causes or is subject to any event with respect to which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in (a) to (g) above (inclusive); or |
| (i) | the Borrower takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; |
Interest Period means the period from (and including) the Start Date to (but excluding) the Repayment Date;
Loan means the loan made under the terms of this Agreement or the principal amount outstanding for the time being of such loan;
Payment Schedule means the payments of principal and interest to be made by the Borrower to the Lender as detailed in Exhibit I.
Person includes any individual, company, corporate, firm, limited liability company, partnership, joint venture, undertaking, association, organization, trust, joint stock company or Governmental Authority (in each case, whether or not having separate legal personality);
Repayment Account means the account of the Lender with the following details:
Endurance Financial LLC
TD Bank Philadelphia, PA
or such other account as the Lender may designate from time to time as a “Repayment Account”;
Repayment Date means, the earlier of:
| (a) | the Scheduled Repayment Date; |
| (b) | if an event under paragraphs (a), (c), (e), or (f) or, to the extent analogous thereto, (h) of the definition of Insolvency Event has occurred in respect of the Borrower, immediately upon the occurrence of such event; |
| (c) | if an event under paragraph (d) or, to the extent analogous thereto, (h) of the definition of Insolvency Event has occurred in respect of the Borrower, the time immediately preceding the imposition of the relevant measures, the giving of the relevant notice or the presentation of the relevant petition; and |
| (d) | if an event under paragraphs (b), (g), or (i) or, to the extent analogous thereto, (h) of the definition of Insolvency Event has occurred and is continuing in respect of the Borrower, the date specified in a notice from the Lender to the Borrower, provided that such date may not fall earlier than the date of receipt of such notice by the Borrower; |
Scheduled Repayment Date means May 1, 2029;
Start Date means April 1, 2024;
Tax means taxes on income, profits and gains and all other taxes, levies, duties, imposts, charges and withholdings in the nature of taxation properly imposed by any relevant Taxing Authority, together with all penalties, charges and interest relating to any of the foregoing;
Taxing Authority means any Governmental Authority responsible for the administration or collection of any Taxes;
USD means the lawful currency of the United States of America; and
VAT shall be construed as a reference to value added tax or any other tax of a similar fiscal nature imposed by the laws of any jurisdiction.
| 1.2 | In this Agreement, unless otherwise specified or unless the context otherwise requires: |
| (a) | references to Clauses and paragraphs are references to clauses and paragraphs of this Agreement; |
| (b) | headings to Clauses are for convenience only and shall not affect the construction or interpretation of this Agreement; |
| (c) | a reference to any statute or statutory provision shall be construed as a reference to the same as it may have been or may from time to time be amended, extended, re-enacted, or consolidated and to all statutory instruments or orders made under it; |
| (d) | any reference to a “day” or a “Business Day” shall be taken to be a reference to the whole of such day, being the period of 24 hours from midnight to midnight; |
| (e) | words denoting the singular shall include the plural and vice versa and words denoting a gender shall include all genders; |
| (f) | any reference to the Lender or the Borrower shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under this Agreement. |
| 2. | Loan |
| 2.1 | Subject to the terms of this Agreement, the Lender agrees to lend to the Borrower, and the Borrower shall borrower from the Lender, the Initial Loan Amount on the Start Date. |
| 2.2 | On the Start Date, the Lender and the Borrower agree that the Lender’s obligation to advance the Initial Loan Amount to the Borrower shall be fully discharged and performed by the transfer of the Initial Loan Amount to the Borrower’s Account. |
| 3. | Interest |
| 3.1. | As remuneration for the Loan, the Borrower shall pay interest to the Lender in respect of the Loan for the Interest Period. |
| 3.2. | Interest shall accrue on the Loan in respect of the Interest Period at the Fixed Rate calculated on a monthly basis using the 30/360 day count convention. |
| 4. | Repayment |
| 4.1. | The Loan, together with any accrued and unpaid interest thereon, shall be repaid or, in the case of interest, paid by the Borrower to the Repayment Account on the Repayment Date. |
| 4.2. | The amount to be repaid on the Repayment Date in respect of the Loan shall be an amount denominated in USD equal to the Loan together with any accrued and unpaid interest thereon. |
| 4.3. | Notwithstanding any other provision of this Agreement to the contrary, the Lender shall have the right to demand full repayment of outstanding principal and accrued interest by the Borrower in its sole and absolution discretion at any time after April 1, 2026 on the provision of 90 days’ written notice to Borrower. The Borrower’s failure to repay the full amount of principal and interest demanded by Lender by the provision of 90 days’ notice will constitute an event of default under this Agreement. |
| 5. | Default Interest |
If the Borrower fails to pay on the due date any amount payable in accordance with this Agreement (and, where such failure is caused by an administrative or technical error only, such failure is not remedied within three Business Days of the due date):
| (a) | the Borrower shall pay interest in USD on that amount from the time of default up to the time of actual payment at a rate of twenty-four per cent. (24%), for such period as the Lender may from time to time select, at or about 11:00 AM (New York time) on the relevant date; and |
| (b) | interest under this Clause 5 shall accrue daily on the basis of a year of 360 days from and including the first day to the last day of each period for which a rate of interest is determined under this Clause 5 and shall be due and payable by the Borrower at the end of such period. So long as the default continues, the rate referred to in paragraph (a) above shall be calculated on a similar basis at the end of each period selected by the Lender. Interest payable under this sub-clause which is unpaid at the end of each such period shall thereafter itself bear interest at the rates provided in this paragraph. |
| 6. | Failure to Pay |
If the Borrower fail to pay any amount payable under this Agreement when due, it shall indemnify the Lender on demand against any funding cost, loss, expense, or liability (including legal fees), and irrevocable VAT thereon, reasonably sustained or incurred by the Lender as a result of such failure.
| 7. | Payments |
| 7.1. | All payments under or in connection with Clauses 2 to 6 (inclusive) shall be made to the Lender in USD in immediately available funds on the due date for payment thereof as detailed in the Payment Schedule free from set-off or counterclaim and without deduction or withholding for or on account of any Taxes of whatsoever nature imposed, levied, collected, withheld or assessed (a Tax Deduction) unless the paying party (the Payer) is required by law to make any such Tax Deduction, after taking account of any available relief and provided that the other party (the Payee) has delivered to the Payer any documentation required in order for such relief to be claimed. |
| 7.2. | If, with respect to any payment under or in connection with this Agreement made by the Payer to the Payee any Tax Deduction is required by law to be made from any payment under of in connection with Clauses 2 to 6 (inclusive), after taking account of any available relief and provided that the Payee has delivered to the Payer any documentation required in order for such relief to be claimed |
| (a) | the Payer will pay the relevant Taxing Authority the amount deducted or withheld and will supply to the Payee within 30 days of such payment being made an official receipt or other evidence of such payment and will give all reasonable assistance not involving the payment of monies to enable the Payee to recover the amount deducted or withheld as promptly as possible; and |
| (b) | the amount of any payment due from the Payer shall be increased to an amount which (after making any Tax Deduction) leaves the Payee with an amount equal to the amount which would have been received if no Tax Deduction had been required to be made. |
| 7.3. | If the Payer makes an increased payment under Clause 7.2 and: |
| (a) | the Payee is entitled to a credit against, relief or remission for, or repayment of any Tax attributable to that payment; |
| (b) | the Payee has obtained, utilized and retained that credit against relief or remission for, or repayment of any Tax; and |
| (c) | the Payee’s Tax affairs for the period concerned have been finally settled, |
the Payee shall (to the extent that it can do so without prejudice to the amount of such credit, relief, remission or repayment) pay an amount to the Payer which that Payee determines (in its sole discretion) will leave it (after that payment) in the same after Tax position as it would have been in had the circumstances giving rise to the requirement that the Payer make an increased payment not arisen provided that the Payee shall have an absolute discretion as to the order and manner in which it realizes and utilizes any credit against, relief, or remission for or repayment of any Tax.
| 7.4. | The Payee agrees that where an increased amount is paid under Clause 7.2, the Payee will take reasonable efforts to obtain and/or utilize any credit, relief, remission or repayment in respect of Tax to which it is entitled, provided that nothing in this Clause 7 shall oblige the Payee to take any action which it judges (in its sole discretion) will have a detrimental effect on its overall Tax affairs or to disclose any information to any Person regarding its Tax affairs or Tax computations. |
| 7.5. | All payments made under this Agreement by way of indemnity, or for loss suffered as a result of a breach of representation or covenant, or for loss suffered under or in connection with this Agreement shall be adjusted to place such party in the same after-Tax position as it such party had not suffered such loss. For these purposes, loss suffered shall include, without limitation, all legal and other costs, charges and expenses (other than recoverable amounts in respect of VAT thereon) reasonably incurred by the Payee and its Affiliates in connection with preserving or enforcing, or attempting to preserve or enforce, its rights hereunder and in any such case the Payer undertakes to pay on written demand by the Payee or any of its Affiliates the amount of such cost, loss, expense or liability; provided that the Payee or any of its Affiliates is the successful party in relevant enforcement proceedings. |
| 7.6. | Notwithstanding any provision of this Clause 7 to the contrary, the Payer shall not be required to make an increased payment under Clause 7.2(b) if any of the following applies: |
| (a) | the Tax Deduction is with respect to the branch profits Tax or any similar Tax that is imposed by the jurisdiction under the laws of which the Payer is organized or in which the Payer is conducting business or its principal office is located on amounts payable to the Payee; and |
| (b) | the Tax Deduction is with respect to withholding Tax imposed due to the failure or inability of the Payee to deliver to the Payer proper documentation as referred to in Clauses 7.1 and 7.2 |
| 8. | Assignment and Variation |
| 8.1. | The Borrower shall not assign the benefit of, or transfer its obligations under, this Agreement except with the prior written consent of the Lender and any such assignment and/or transfer in violation hereof shall be void ab initio. |
| 8.2. | The Lender shall not assign the benefit of this Agreement other than to an Affiliate of the Lender except with the prior written consent of the Borrower (such consent not to be unreasonably withheld) and any such assignment in violation hereof shall be void ab initio. The Lender shall notify the Borrower of the name and address of any such assignee and the principal amount of the Loan assigned. |
| 8.3. | Any amendment or waiver of the terms of this Agreement shall be valid only if made in writing and signed by the Borrower and the Lender. |
| 9. | Business Day Convention |
If the Repayment Date would otherwise fall on a non-Business Day, it shall instead fall on the next Business Day unless that day falls in the next calendar month in which case the date for payment will be the first preceding day that is a Business Day.
| 10. | Notices |
| 10.1. | Any notice or other communication to be given by one party to the others under, or in connection with, this Deed shall be in writing and signed by or on behalf of the party giving it. It shall be served be sending it by fax to the number set out in Clause 10.2 or delivering it by hand, or sending it by email to the email address set out in Clause 10.2, or sending it pre-paid recorded delivery, special delivery or registered post, to the address set out in Clause 10.2 and in each case marked for the attention of the party set out in Clause 10.2 (or as otherwise notified from time to time in accordance with the provisions of this Clause 10). Any notice so served by hand, fax or post shall be deemed to have been duly given: |
| (a) | in the case of delivery by hand, when delivered; |
| (b) | in the case of fax, at the time of confirmation if receipt; |
| (c) | in the case of email, on the same Business Day on which it has been sent or, if such notice was sent after 4:00 PM in the time zone where the recipient has its address for the time being, on the immediately following Business Day; and |
| (d) | in the case of prepaid recorded delivery, special delivery or registered post, at 10:00 AM New York time on the second Business Day following the date of posting, |
provided that in each case where delivery by hand or by fax occurs after 6:00 PM New York time on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9:00 AM New York time on the next following Business Day.
| 10.2. | All notices, communications or demands shall be valid in accordance with this Clause if sent or delivered as follows: |
To the Borrower:
Elauwit Connection, Inc.
Address: 109 East 17th Street, Cheyenne, WY 82001
Email: ###
Attention: Sean Arnette
To the Lender:
Endurance Financial LLC
Address: 1621 Central Avenue, Cheyenne, WY 82001
Email: ###
Attention: Stephanie Hawkins
| 10.3. | A party may notify the other parties at any time of a change to its details for the purposes of Clause 10.2 or of a change to its account details provided that such notification shall only be effective on: |
| (a) | the date specified in the notification as the date on which the change is to take place; |
| (b) | if no date is specified or the date specified is less than five Business Days after the date on which notice is given, the date falling five Business Days after notice of any such change has been given. |
| 11. | Counterparties |
This Agreement may be executed in any number of counterparts, and by each party on separate counterparts. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. Delivery of a counterparty of this Agreement by e-mail attachment (PDF) or telecopy shall be an effective mode of delivery.
| 12. | Entire Agreement |
This Agreement constitutes the entire agreement between the parties hereto in relation to the subject matter hereof and supersedes all previous proposals, arrangements, agreements, and other written communications and oral communications in relation thereto.
| 13. | Severability |
Should any provisions of this Agreement be found invalid, illegal, or unenforceable for any reason, it is to be deemed replaced by the valid, legal, and enforceable provision most closely approximating the intent of the parties, as express in such provision, and the validity, legality, and enforceability of the remainder of this Agreement shall in no way be affected or impaired thereby.
| 14. | Governing Law |
Governing Law
| 14.1. | This Agreement and any non-contractual obligations arising out of or in relation to this Agreement are governed by the laws of the Commonwealth of Pennsylvania. |
Submission to Jurisdiction
| 14.2. | The parties agree that the courts of the Commonwealth of Pennsylvania shall have exclusive jurisdiction in relation to all disputes arising out of or in connection with this Agreement (including claims for set-off and counterclaims), including, without limitation, disputes arising out of or in connection with: (i) the creation, validity, effect, interpretation, performance or non-performance of, or the legal relationships established by, this Agreement; and (ii) any non-contractual obligations arising out of or in connection with this Agreement. For such purposes each party irrevocably submits to the jurisdiction of the courts of the Commonwealth of Pennsylvania and waives any objection to the exercise of such jurisdiction. |
Inconvenient Forum and Enforcement Abroad
| 14.3. | Each party: |
| (a) | waives any objection to the choice of or submission to the courts of the Commonwealth of Pennsylvania on the grounds of inconvenient forum or otherwise as regards proceedings in connection with this Agreement; and |
| (b) | agrees that a judgment, declaration or other (whether interim or final) of a court of the Commonwealth of Pennsylvania in connection with this Agreement is conclusive and binding on it and may be enforced against it in the courts of any other jurisdiction. |
| For Elauwit Connection, Inc. | ||
| By: | /s/ Barry Rubens | |
| Name: | Barry Rubens | |
| Title: | Chief Executive Office | |
| For Endurance Financial LLC | ||
| By: | /s/ James Di Bartolo | |
| Name: | James Di Bartolo | |
| Title: | Authorized Member | |
Exhibit I – Payment Schedule
Borrower will make the following payments to Lender:
| Month | Interest | Principal | Payment | |||||||||
| 5/1/2024 | 15,000.00 | - | 15,000.00 | |||||||||
| 6/1/2024 | 15,000.00 | - | 15,000.00 | |||||||||
| 7/1/2024 | 15,000.00 | - | 15,000.00 | |||||||||
| 8/1/2024 | 15,000.00 | - | 15,000.00 | |||||||||
| 9/1/2024 | 15,000.00 | - | 15,000.00 | |||||||||
| 10/1/2024 | 15,000.00 | - | 15,000.00 | |||||||||
| 11/1/2024 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 12/1/2024 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 1/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 2/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 3/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 4/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 5/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 6/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 7/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 8/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 9/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 10/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 11/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 12/1/2025 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 1/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 2/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 3/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 4/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 5/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 6/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 7/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 8/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 9/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 10/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 11/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 12/1/2026 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 1/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 2/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 3/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 4/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 5/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 6/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 7/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 8/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 9/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 10/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 11/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 12/1/2027 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 1/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 2/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 |
| 3/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 4/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 5/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 6/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 7/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 8/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 9/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 10/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 11/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 12/1/2028 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 1/1/2029 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 2/1/2029 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 3/1/2029 | 8,632.86 | 18,518.52 | 27,151.38 | |||||||||
| 4/1/2029 | 8,632.86 | 18,518.52 | 27,151.38 |
Exhibit 10.14
NETWORK SERVICE AGREEMENT PARTICIPATION AND AGENCY AGREEMENT
This NETWORK SERVICE AGREEMENT PARTICIPATION AND AGENCY AGREEMENT made as of __________________, by and between Elauwit Connection, Inc., a Delaware corporation having an office at 109 East 17th Street, Cheyenne, WY 82001 (the "Agent") and ________, with its principal place of business at ______ (the "Participant").
BACKGROUND
A. The Agent, Elauwit, has entered into a certain network service agreement (the “Network Service Agreement" or the “NSA”) with ________________ (the "Building Owner") dated ___________________, pursuant to which the Agent will perform or has performed the design, installation, and management of a telecommunications network for Building Owner in the financed project amount of ________________ and 00/100 Dollars ($___________) (the "Project Financing"), on the terms and subject to the conditions set forth therein.
B. A portion of the proceeds of the Project Financing shall be utilized by the Agent for the benefit of the Building Owner as of the date hereof.
C. The Participant has agreed to purchase, and the Agent has agreed to sell, an undivided interest in the NSA, on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein and intending to be legally bound hereby, the Participant and the Agent covenant and agree as follows:
1. Definitions; Incorporation of Background.
Defined Terms. As used herein, the following terms shall have the meanings indicated unless the context otherwise requires:
Agent. Has the meaning ascribed to it in the heading of this Agreement.
Agreement. This Network Service Agreement Participation and Agency Agreement together with all exhibits and schedules attached hereto and all amendments or modifications hereto and replacements hereof.
Building Owner. Has the meaning ascribed to it in the Background of this Agreement.
Business Day. A day other than a Saturday, Sunday or legal holiday under the laws of the Commonwealth of Pennsylvania.
Code. The Pennsylvania Uniform Commercial Code, as modified, amended, revised, supplemented and restated from time to time.
Collateral. Collectively and individually any and all items of property, real and personal, pertaining to the hardware installed by Agent for the benefit of Building Owner pursuant to the Network Service Agreement.
Collateral Assignment. Has the meaning ascribed to it in Section 2(g) of this Agreement.
Event of Default. A default or event of default under any of the Network Service Agreement Documents.
Federal Funds Rate. For any day, a rate per annum equal to the weighted average of the rates on overnight Federal Funds transactions, with members of the Federal Reserve System only, arranged by Federal Funds brokers, as published as of such day by the Federal Reserve Bank of New York.
Network Service Agreement. Has the meaning ascribed to it in the Background provisions of this Agreement.
Network Service Agreement Documents. The Network Service Agreement and all other agreements, documents and instruments executed and delivered under and pursuant to the Network Service Agreement or in connection with the transactions described therein and contemplated thereby and listed on Exhibit "A".
Par. All outstanding principal and accrued and unpaid interest and fees due with respect to Participant’s pro rata interest in the Network Service Agreement.
Participated Obligations. Collectively, (i) the Network Service Agreement, and (ii) the Network Service Agreement Documents.
Participant. Has the meaning ascribed to it in the heading of this Agreement.
Participant's Principal Balance. The Purchase Price less any principal payments collected and applied to the Participant's share of the Network Service Agreement.
Participation. The undivided interest in the Network Service Agreement, Network Service Agreement Documents, Collateral, and Proceeds sold to Participant under this Agreement.
Participation Certificate. The participation certificate in the form of Exhibit "B" attached hereto and incorporated herein by reference issued by the Agent to the Participant simultaneously with the execution and delivery of this Agreement evidencing the Participation.
Payment Schedule. The payments of principal and interest due to Participant and payable by Agent, which reflect Participant’s legal, economic and beneficial entitlement in the Network Service Agreement pursuant to this Agreement. The Payment Schedule is detailed in Exhibit I of this Agreement.
Proceeds. Whatever is received when any right of setoff is exercised or when any of the Collateral is sold, exchanged, leased, collected, or otherwise disposed of, including cash, insurance proceeds, condemnation awards, negotiable instruments and other instruments for the payment of money, chattel paper, security agreements, other documents, and other noncash proceeds (including, without limitation, "proceeds" under and as defined in the Code).
Purchase Price. An amount equal to _____ and 00/100 Dollars ($____).
Purchase and Sale. Collectively, the purchase and sale transactions described in Paragraph 2(a) hereof.
Other Defined Terms. All other capitalized terms used in this Agreement which are not defined in Section 1 hereof, but which are defined in the Network Service Agreement, shall have the meanings ascribed to those terms in the Network Service Agreement.
Incorporation of Background. The Background provisions of this Agreement (including, without limitation, the defined terms set forth herein) are incorporated herein by reference thereto as if fully set forth in this Agreement.
2. Purchase and Sale of Participation.
(a) Purchase and Sale; Payment of Purchase Price. For and in consideration of the Purchase Price, which shall be paid by the Participant to the Agent by wire transfer of immediately available funds concurrently with the execution hereof, and subject to the terms and conditions of this Agreement, the Agent hereby grants, bargains, sells, assigns, transfers and sets over unto the Participant, and the Participant hereby purchases from the Agent, an undivided participation interest entitling Participant to receive payments in accordance with the Payment Schedule in and to (i) the Network Service Agreement and (ii) the Network Service Agreement Documents (including, without limitation, the Collateral and any Proceeds thereof). The interest of Participant in and to (i) the Network Service Agreement and (ii) the Network Service Agreement Documents (including, without limitation, the Collateral and any Proceeds thereof) shall be senior and shall have priority over the interest of Agent.
(b) Purchaser/Seller Relationship. The relationship between the Agent and the Participant pursuant to the provisions of Paragraph 2(a) hereof is and shall be that of a purchaser and seller of a property interest and not a creditor-debtor or other similar relationship. Without limiting the generality of the foregoing, it is understood and agreed that the transactions contemplated by this Agreement:
(i) constitute a sale and purchase of an undivided interest in the Participated Obligations;
(ii) do not constitute a loan by the Agent to the Participant or a sale of a security to the Participant; and
(iii) do not create any relationship between Agent and Participant other than that of a purchaser and seller of a property interest.
(c) Participation Interest. The undivided interest sold, assigned and transferred by the Agent to the Participant under Paragraph 2(a) hereof represents an undivided interest in the Network Service Agreement and the Network Service Agreement Documents in an amount given by the Payment Schedule.
(d) Receipt/Review of Network Service Agreement Documents. Agent shall provide copies of all Network Service Agreement Documents to Participant, and Participant acknowledges that it has received and reviewed all of the Network Service Agreement Documents as of the date hereof.
(e) Title to Network Service Agreement Documents. Agent shall hold and retain title to the Network Service Agreement Documents during the terms of this Agreement.
(f) Repurchase. Agent shall have the right to repurchase the Participant’s interest at Par at any time while the Network Service Agreement is outstanding.
(g) Put Option. If the Participant’s interest under this Agreement remains outstanding twenty-four (24) months after the Service Activation Date under the Network Service Agreement, Participant shall have the option to require repurchase by Agent of the Participant’s interest at Par by providing Agent ninety (90) days notice.
3. Participant's Right to Payments. Subject to and in accordance with the provisions of Section 10 hereof, and provided that the Participant has otherwise complied with the terms and conditions hereof, the Participant, as a result of the Purchase and Sale, shall be entitled to receive:
(a) all amounts received and applied by the Agent on account of accrued interest under the Network Service Agreement in accordance with the Payment Schedule detailed in Exhibit I of this Agreement;
(b) Agent will, within fifteen (15) days of the execution of this Agreement, notify Building Owner of this Agreement with Participant, which Participant shall be the “Hardware Financier” under section 7.17 of the Network Service Agreement between Agent and Building Owner. Such notice will include the Participant’s (as Hardware Financier) legal entity name, address, and contact information for its primary representative.
(c) If an event of default has been declared, Participant shall receive all payments made by Building Owner which shall first be applied to reduce the Participant’s accrued but unpaid principal and interest entitlements as detailed in the Payment Schedule to $0 before application of any proceeds to the Agent’s principal balance or other balances, as well as enforce Participant’s right to step in as Hardware Owner under the Network Service Agreement.
4. Limited Obligations.
(a) Limited Obligations of Agent. The Participation is a full-risk participation and Participant agrees to look only to payments received from Building Owner or from the Collateral for repayment of Participant’s share. Except for the failure of the Agent to remit sums due and owing to the Participant in accordance with the provisions of Section 3 hereof, or if the Agent defaults under the Network Service Agreement with the Building Owner, the Participant shall have no recourse against the Agent for any payment under the Network Service Agreement or for any fees or other amounts payable by the Building Owner or any other party and to which Participant is entitled, under any of the Network Service Agreement Documents. Agent's only obligation with respect to such payments shall be to remit to the Participant its share thereof when, as and if received by Agent, in accordance with the provisions of Section 3.
5. Appointment of Agent; Nature of Agent's Duties.
(a) Appointment. The Participant hereby appoints the Agent as its agent under each of the Network Service Agreement Documents and hereby irrevocably authorizes the Agent to take such action on behalf of the Participant and exercise such powers under each of the Network Service Agreement Documents as are specifically authorized or delegated to the Agent by the terms and conditions thereof, together with such further powers as are reasonably incidental thereto. The Agent hereby accepts such appointment upon and subject to the terms and conditions provided in this Agreement.
(b) Payments Held in Trust. The Agent shall hold in trust, for the pro rata benefit of the Participant and the Agent, all payments received and applied by the Agent on account of the Network Service Agreement.
(c) Nature of Duties. The Agent shall have no duties or responsibilities except those expressly set forth herein. The duties of the Agent hereunder shall be entirely mechanical, ministerial, and administrative in nature. Nothing contained in this Agreement, express or implied, is intended. to or shall be so construed as to impose upon the Agent any duty or obligation with respect to this Agreement except as expressly set forth herein or therein.
(d) Standard of Care; Reliance on Documents. The Agent will exercise the same care in administering the Network Service Agreement as if the Participated Obligations were made entirely for the Agent's own account; provided, however, notwithstanding anything contained herein to the contrary, the Agent shall have no liability to the Participant for any loss except for a loss that a court of competent jurisdiction determines has resulted from the Agent's own negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent shall be fully protected in relying upon any certificate, document or other communication which appears on its face to be genuine and to have been signed or presented by the proper person or persons, and upon the advice of legal counsel, independent accountants and other appropriate experts (including those retained by the Building Owner). The Agent shall not be deemed to be a trustee, or other fiduciary, for the Participant in connection with this Agreement, the Participated Obligations or Network Service Agreement Documents and has no duties or obligations to the Participant except for those expressly set forth herein.
(e) Performance of Duties through Agents. The Agent may perform any of its duties and obligations under the Network Service Agreement Documents or hereunder by or through its agents or employees.
6. Forwarding Information; Notices of Defaults. The Agent shall, on a continuing basis, provide the Participant with any credit or other information with respect to the Building Owner delivered by the Building Owner to the Agent after the closing of the Network Service Agreement as soon as practicable following Agent's receipt thereof. If the Agent becomes aware of the occurrence of any Event of Default, the Agent shall use its commercially reasonable efforts to notify the Participant by telephone or electronic mail of the occurrence thereof as soon as practical but no later than five (5) Business Days after Agent becomes aware of such Event of Default. The Agent shall use its commercially reasonable efforts to send the Participant a written confirmation of such Event of Default within ten (10) Business Days after the giving of such telephone or electronic mail notice.
7. Servicing the Network Service Agreement.
(a) Servicing by Agent. Agent shall have the sole and exclusive right to (i) service, administer and monitor the Network Service Agreement, the Collateral and Network Service Agreement Documents, (ii) exercise all rights, remedies, privileges and options under the Network Service Agreement Documents, (iii) compromise claims by or against Building Owner or with respect to any Collateral, (iv) take any action to protect Agent’s and Participant’s rights in and to the Collateral and otherwise exercise its rights and remedies under the Network Service Agreement Documents after an Event of Default by Building Owner, and (v) enter into amendments, modifications or extensions of the Network Service Agreement Documents, and (vi) waive any Event of Default, except as otherwise provided in Paragraphs (b) or (c) below. Nothing herein will obligate the Agent to initiate or continue any action, right or remedy against the Building Owner, upon the occurrence of continuance of an Event of Default.
Subject to the other terms and conditions of this Agreement, including Section 5(d), Participant hereby authorizes Agent to administer and enforce the Network Service Agreement on behalf of Agent and Participant to the extent provided in this Agreement and to exercise such other powers as are reasonably incidental thereto, including the receipt of all payments of principal, interest, fees and expense reimbursements on or in connection with the Network Service Agreement and the Network Service Agreement Documents, with full power and authority, to institute and maintain against Building Owner, or any other person or entity liable in connection with the Network Service Agreement, actions, suits or proceedings for the protection, collection and enforcement of the Network Service Agreement Documents and realization upon any Collateral and to take such other actions for the protection, collection and enforcement of the Network Service Agreement Documents and realization upon any Collateral, as may be advisable, in Agent’s discretion.
(b) Consultation with Participant. Agent will consult with Participant before taking any of the actions described in Paragraph (a)(iii)-(vii) above. Prior to any amendment, waiver, consent, release or modification of or with respect to any of the provisions of the Loan Documents relating to the actions described in Paragraph (a)(iii)-(vii) above, Agent will notify Participant of any amendment, waiver, consent, release or modification and shall, as soon as reasonably practicable, deliver to Participant copies of all such written amendments, waivers, consents, releases or modifications after the execution thereof.
(c) Participant’s Consent. Notwithstanding the provisions of Paragraphs (a) and (b) above, Agent shall not take any of the following actions, without the prior written consent of the Participant (which consent shall not be unreasonably withheld, conditioned or delayed):
(i) sell, assign, transfer, substitute or release any Collateral, unless (A) otherwise permitted under the Network Service Agreement, pursuant to any right of foreclosure or otherwise, (B) in exchange for consideration deemed fair and reasonable under the circumstances, (C) the Collateral is without any material value, (D) the Collateral is replaced with other Collateral of equal value, or (E) in connection with a restructuring, modification, or amendment of the Network Service Agreement Documents;
(ii) release any Building Owner or any other person who or which guarantee payment and/or collection with respect to Participant’s share of the Network Service Agreement;
(iii) reduce in the interest rate payable with respect to Participant’s share of the Network Service Agreement, except for interest rate reductions presently provided for in the Network Service Agreement Documents;
(iv) select any fixed rate of interest with respect to Participant’s share of the Network Service Agreement, except in accordance with the terms of the Network Service Agreement Documents;
(v) postpone any payments due with respect to Participant’s share of the Network Service Agreement for a period in excess of five (5) days;
(vi) change the scheduled principal repayment with respect to Participant’s share of the Loan for a period in excess of five (5) days; or
(vii) Subordinate any lien that secures Participant’s share of the Network Service Agreement.
Agent may not implement the restrictions set forth in subparagraphs (i) though (vii) above without the prior written consent of Participant, which consent will not be unreasonably withheld, delayed or conditioned. Such consent shall be deemed to have been granted if Agent has notified Participant in writing of a proposed course of action and Participant has not objected in writing to such course of action within ten (10) Business Days after such notice is received by Participant.
Agent may perform any of its duties hereunder by or through agents or employees and shall be entitled to advice of counsel concerning all matters pertaining to its duties hereunder.
8. Representations and Warranties.
(a) By Agent. Agent represents and warrants to the Participant as follows:
(i) This Agreement has been duly authorized and is valid and binding on it.
(ii) Agent owns and can convey the Participated Obligations, free and clear of all liens and encumbrances.
(iii) Agent has the right, power and authority to complete the Purchase and Sale.
(b) By Participant. The Participant represents and warrants to the Agent that:
(i) This Agreement has been duly authorized and is valid and binding on it.
(ii) The Participant has the right, power, and authority to complete the Purchase and Sale and to perform all duties and obligations required to be performed by the Participant hereunder.
9. No Other Representations. The Participant acknowledges that (i) the Participant has performed and will continue to perform its own credit analysis of the Building Owner and its own investigation of the risks involved in the transactions contemplated by the Network Service Agreement Documents and, in entering into this Agreement and purchasing the interests described in Paragraph 2(a) hereof, it is not and will not rely on the Agent with respect thereto, (ii) the Participant has reviewed and approved the form and substance of each of the Network Service Agreement Documents, (iii) the Agent has not made and shall not at any time be deemed to make, except as set forth in Paragraph 8(a) hereof, any representation or warranty, express or implied, with respect to or have any responsibility with respect to (A) the legality, validity or enforceability of any of such Network Service Agreement Documents, or any other agreements, documents or instruments relating thereto, (B) the financial condition or creditworthiness of the Building Owner or any other entity which may have liability for the Participated Obligations, (C) the sufficiency, value, validity or enforceability or the collectability of the Participated Obligations or any rights afforded thereby or matters mentioned therein, (D) the validity, enforceability, authenticity or accuracy of any statement, report, certificate or other information made or given or to be given to the Agent by Building Owner in connection with such Network Service Agreement Documents, or (E) any other matter having any relation to this Agreement, the Participated Obligations or such Network Service Agreement Documents.
10. Settlements.
(a) Remittance. Promptly upon receipt by the Agent of any payment on the Participated Obligations, the Agent shall remit to the Participant its share thereof determined in accordance with Section 3 of this Agreement.
(b) Timing of Remittances. All payments received on the Network Service Agreement during any calendar month due and payable to Participant shall be paid by Agent to the Participant in the first five (5) days of the subsequent month. Payments shall be deemed to be promptly made if the Agent transfers funds to the Participant prior to the close of the third Business Day after the payment is received by Agent.
(c) Accounting. Agent shall provide Participant on a monthly basis with an accounting of all monies received by Agent in connection with the Network Service Agreement and the application thereof.
11. Exercise of Remedies; Collateral Proceeds.
(a) Exercise of Remedies. Subject to any limitations set forth herein, Agent may take such action or actions (including without limitation, the institution of litigation, the commencement of foreclosure proceedings or the granting of any extension of the Network Service Agreement for purposes of “working out” the Network Service Agreement), assert such rights, exercise such remedies and/or waive such Event(s) of Default (to the extent and in the manner required herein) or refrain from taking such actions with respect thereto as Agent and Participant may mutually decide.
(b) Transfer of Collateral Proceeds. If Agent shall foreclose, sell or otherwise exercise rights with respect to the Collateral, Agent shall render an accounting to Participant for monies received and monies expended in regard to the sale or foreclosure of such Collateral, including without limitation, expenses of foreclosure. If the Collateral is sold to a third party by Agent or through a foreclosure by power of sale, trustee sale, judicial sale, uniform commercial code sale, or otherwise, including any sale after Agent takes title to or possession of such Collateral, then, upon receipt from such third party of the proceeds from such event, Agent will remit to Participant the Participant’s share of the net amount received (after costs, expenses, other similar payments and other deductions as provided in the Network Service Agreement Documents and other costs to maintain or preserve the Collateral (including the payment of taxes and insurance premiums) or to prepare it for sale, including marketing expenses) (collectively, the “Collateral Expenses”). In the event that Agent takes title to or possession of any of the Collateral pursuant to the exercise of any rights or remedies under the Network Service Agreement Documents, at law or in equity, Agent (or its designee) shall hold such Collateral for the pro-rata benefit of Agent and Participant.
12. Reserved.
13. Reserved.
14. Interest on Advances and Overdue Payments. Interest, at a rate of 16.5% per annum calculated on an actual/360 day count basis, shall accrue with respect to any payments owed to Participant by Agent, or to advances owed to Agent by Participant, not made when due pursuant to the terms of this Agreement.
15. Other Relationships with Building Owner.
(a) Other Extensions of Credit: Sharing of Payments. The Participant and the Agent acknowledge and agree that Participant or Agent may currently have, and in the future may make, credit available to the Building Owner other than pursuant to the Network Service Agreement. To the extent that either Participant or the Agent shall have the right to set off against, or a lien upon or a pledge of, any existing or hereafter acquired property of the Building Owner, except property that now secures or may hereafter secure obligations of the Building Owner under the Network Service Agreement, neither Participant nor the Agent shall be under any obligation to exercise such right as it may have against such property or in the event of such exercise to apply the proceeds therefrom on account of its Participation or the obligations of the Building Owner under the Network Service Agreement Documents provided that if the Agent or the Participant in its sole discretion elects to exercise its right of set off, or otherwise receives any payment (whether voluntary, involuntary or otherwise) on account of its Participation, the Participant shall notify the Agent and the Building Owner promptly of such set off or payment (provided, that the failure to give such notice shall not affect the validity of such set off or payment) and such payment shall be applied to the Agent and the Participant in accordance with their respective interest in the Network Service Agreement (assuming, for purposes thereof, that no other participation interests in the Network Service Agreement were granted by the Agent).
(b) Default by Participant. In the event that Participant fails to make any payment to Agent in accordance with this Agreement, Agent may elect, at its sole discretion to make such payment, pay such cost or expense, in whole or in part, and Participant shall be liable for its Participant’s share thereof and, in addition, Agent may apply Participant’s share of all proceeds and payments received from the Building Owner, or other parties or otherwise collected by Agent on or in connection with the Network Service Agreement, first to pay or reimburse Agent for all sums which Participant should have paid to Agent under this Agreement. In addition, until such default is cured, Participant shall have no right to consent to or approve any action or inaction by Agent under this Agreement or any of the Network Service Agreement Documents, and Agent may take any and all actions with respect to the Network Service Agreement Documents and related thereto as Agent may determine in its sole discretion, and Participant will have no right to receive any funds from, arising out of, or under the Network Service Agreement until Agent has been fully reimbursed for any such sums advanced, together with all interest, fees and costs associated therewith.
16. Application of Proceeds. Notwithstanding any provision hereof to the contrary, any Proceeds that Agent shall receive on account of the Network Service Agreement will be applied, (a) first, to all costs and expenses incurred by Agent under the Network Service Agreement Documents or otherwise in connection with the Network Service Agreement, which costs and expenses have not been reimbursed by Building Owner, (b) second, to all accrued and unpaid payments due to Participant under this Agreement.
17. Degree of Care. Except as provided in Paragraph 5(d), neither Agent nor any of its officers, directors, employees, agents or attorneys shall be liable for any action taken or omitted to be taken by it or by any of them under any of the Network Service Agreement Documents or in connection therewith or under this Agreement, except for actual losses, if any, suffered by Participant as a result of the negligence or willful misconduct of Agent or its employees or Agents.
18. Rights in Payments Received, Collateral and Proceeds. Agent and Participant shall share pro rata in proportion to their interests in the Network Service Agreement in any payments received by either Agent or Participant under the Network Service Agreement Documents and in the Collateral and Proceeds thereof. In the event either Agent or Participant exercise any right of setoff or counterclaim with respect to Building Owner at any time, Agent and Participant agree to apply the proceeds or benefits of such setoff or counterclaim against the outstanding balance of the Network Service Agreement until the Network Service Agreement is repaid in full before applying the proceeds or benefits to any loan or extension of credit by Agent or Participant (including other loans or extensions of credit not constituting the Network Service Agreement) now existing or hereafter made.
19. Reliance by Agent. Agent shall be entitled to rely upon any writing, electronic mail, telegram, telex or teletype message, resolution, notice, consent, certificate, letter, cablegram, statement, or order or other documents or conversation by telephone or otherwise believed by it to be genuine and correct and to have been properly signed, sent or made. Agent may consult with legal counsel, professional advisors and other experts selected by Agent and shall not be liable for actions taken or omitted to be taken in good faith by Agent in accordance with the advice of such counsel, advisors and experts.
20. Notices. All notices, requests and demands to or upon the parties to this Agreement shall be deemed to have been given or made when deposited in the mail, postage prepaid, or, in the case of telegraphic notice, when delivered to the telegraph company, addressed as follows, or to such other address as may be designated in writing by the parties to this Agreement:
If to Participant:
_______________
If to Agent:
Elauwit Connection, Inc.
1520 Locust Street, Suite 901
Philadelphia, PA 19102
Attention: Barry Rubens, CEO
Telephone No.: 704-558-3099
E-mail address: ###
22. Assignment. The Participant shall not, without the prior written consent of Agent, which consent will not unreasonably withheld or delayed, assign or convey in whole or in part the Participant’s share, or grant any sub-participation therein, provided, however, in no event shall Participant assign, pledge or convey or seek to assign, pledge or convey Participant’s share or any part thereof, including without limitation, a sub-participation, to Building Owner or any affiliate of Building Owner.
23. Amendments. This Agreement may not be amended except by a writing signed by both Agent and the Participant.
24. Headings. The section, subsection, paragraph and other headings in this Agreement are for reference purposes only and shall not constitute a part of this Agreement for any other purposes.
25. Section References. All references in this Agreement to particular sections are references to sections of this Agreement, unless those references expressly refer to sections of the Network Service Agreement Documents.
26. Time. All references to any time in this Agreement are references to Eastern Standard Time or Eastern Daylight Savings Time, as in effect in the Commonwealth of Pennsylvania on the applicable dates, unless those references expressly refer to times as in effect in other locations.
27. Severability. If any provision of this Agreement is determined to be invalid or unenforceable in any jurisdiction, in whole or in part:
(a) that provision, as to such jurisdiction, shall be ineffective to the extent of such invalidity or unenforceability;
(b) such determination shall not affect in any manner the validity or enforceability of that provision in any other jurisdiction; and
(c) such determination shall not affect in any manner the remaining provisions of this Agreement in any jurisdiction.
28. Integration. This Agreement constitutes the sole agreement of the parties with respect to the subject matter hereof and supersedes all oral negotiations and prior writings with respect to the subject matter hereof and thereof.
29. Expenses. Agent shall be responsible for the expenses incurred in connection with the preparation of this Agreement and related documents, including the fees and expenses of its agents, brokers and legal counsel, if any.
30. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument, but all of such counterparts taken together shall be deemed to constitute one and the same instrument.
31. Waiver of Trial by Jury. The parties hereto agree that any suit, action, or proceeding, whether claim or counterclaim, brought or instituted by either party hereto or any successor or permitted assign of either party hereto on or with respect to this Agreement or which in any way relates, directly or indirectly, to this Agreement or the dealings of the parties with respect thereto, shall be tried by a court and not by a jury. EACH PARTY HERETO EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR PROCEEDING. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT THIS SECTION 31 IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT.
IN WITNESS WHEREOF, the foregoing Agreement has been duly executed by the parties hereto on the date first above written.
Elauwit Connection, Inc.
| By: | By: | |||
| Name: | Barry Rubens, CEO | Name: |
PARTICIPATION CERTIFICATE
Elauwit Connection, Inc. (the “Agent”), a Delaware corporation, hereby certifies that Endurance Opportunities I, LLC (“Participant”) has a participating interest in the Network Service Agreement in the principal amount of ____________ and 00/100 Dollars ($__________) Dollars made with [ ] (“Building Owner”) under and pursuant to the Network Service Agreement dated ____________________.
This Participation Certificate is the Participation Certificate issued under and subject to the terms of a certain Network Service Agreement Participation and Agency Agreement dated as of _______________, between Participant and Agent. Reference is made to such Network Service Agreement Participation and Agency Agreement for a full statement of rights, duties and obligations of the parties thereto.
WITNESSETH, the due execution hereof as of __________________.
| Elauwit Connection, Inc., as Agent | |
| By: Barry Rubens, CEO |
Exhibit I – Payment Schedule
Agent will make the following payments to Participant:
Exhibit 10.15
BUSINESS LOAN AGREEMENT
This BUSINESS LOAN AGREEMENT (“Agreement”) is made this 12th day of November, 2024 (the “Effective Date”), by and between Elauwit Connection, Inc. (the “Borrower”), a Delaware corporation with an address of 1520 Locust Street, Philadelphia, PA 19102, and Endurance Opportunities I LLC, a Wyoming limited liability company with an address of 1621 Central Avenue, Cheyenne, WY 82001 (the “Lender”).
BACKGROUND
Borrower desires to borrow from Lender, and Lender, subject to the terms and conditions set forth herein, is prepared to lend Borrower the sum of Two Hundred and Fifty Thousand Dollars and 00/100 Cents ($250,000) (the "Loan"), which Loan shall be secured by the various documents and instruments set forth herein.
As a condition and inducement to Lender to make the Loan, and as more particularly set forth in this Agreement, Borrower has agreed to provide Lender with a security interest in current notes receivable, and to deliver, or cause to be delivered, various documents and instruments, including a Note and Security Agreement. The execution and delivery of the documents and instruments by Borrower or other parties described herein are a condition of the Lender’s obligation to extend the Loan.
AGREEMENT
NOW THEREFORE, with the foregoing Background incorporated herein as if fully set forth at length, in consideration of the premises, and of the mutual promises and undertakings of the parties set forth herein, and with the intention of being legally bound hereby, the parties hereto agree as follows:
| 1. | The Loan. |
| a. | Loan Amount. Subject to the terms and conditions of this Agreement, Lender hereby agrees to make a term loan to Borrower in the principal amount of Two Hundred and Fifty Thousand Dollars and 00/100 Cents ($250,000) for a period of Eighteen (18) months from the date hereof, unless extended in accordance with Section 1(c) below, the proceeds of which shall be used to finance its business operations. |
| b. | Security and Collateral. |
| i. | The Borrower’s obligation to repay the Loan and any other sums loaned to the Borrower by the Lender hereunder is evidenced by the Borrower’s Commercial Promissory Note dated this date in the principal amount of Two Hundred and Fifty Thousand Dollars and 00/100 Cents ($250,000) ("Note"), providing for the payment of principal, together with interest thereon at the rate set forth therein, in such installments, at such times, and according to such further terms as set forth in the Note. |
| ii. | As security for the Note and all of the Borrower’s obligations thereunder and hereunder, the Borrower shall execute and deliver to the Lender or cause to be executed and delivered to the Lender, as the case may be, such security agreements, financing statements, continuation statements and other security instruments as the Lender shall require in order to create a valid and perfected security interest in the collateral more particularly described in the Security Agreement between the parties (such documents, together with the Note, are hereinafter collectively referred to as the “Loan Documents”). Such documents shall be in form and substance satisfactory to Lender, and any filing and recording fees with respect thereto shall be paid by the Borrower. |
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| c. | Interest Rate. From the Effective Date until paid in full, the outstanding principal balance of the Loan shall bear interest at a rate of Sixteen and One-Half Percent (16.5%) per annum, as provided in the Note. |
| d. | Default Rate of Interest. Upon and after the occurrence of an Event of Default, as defined in Section 5(a) hereinbelow, at the election of Lender, all interest accruing in respect of any loan or other obligation of Borrower under this Agreement shall be increased, as provided in the Note, by a per annum percentage equal to the lesser of (i) Ten Percent (10%) per annum; or (ii) the maximum amount of interest permitted by applicable law to be contracted for, charged or received (the "Default Rate"). The Default Rate will be charged upon the outstanding balance due upon the occurrence of an Event of Default and may be calculated retroactively, from the date of the occurrence of the Event of Default, upon the balance due. |
| e. | Fees. |
| i. | Origination Fee. As compensation for the expenses of underwriting and evaluating the Loan, the Borrower shall pay to the Lender a fee of Five Thousand Dollars and 00/100 Cents ($5,000) on the date hereof. Such fee shall be in addition to the interest and any and all other amounts which the Borrower is required to pay under the Loan Documents in connection with the Loan. |
| ii. | Lender’s Expenses. On the Effective Date, Borrower shall pay all of Lender’s expenses in connection with the Loan, including the legal fees of Lender’s counsel and any filings costs or fees incurred to create a valid and perfected security interest in the Collateral. |
| iii. | Late Fees. If Lender does not receive the entire amount of any payment required under this Loan Agreement or any other Loan Documents within five (5) days of its due date, Borrowers shall, to the extent permitted by law, pay a late charge equal to ten percent (10.0%) of the overdue payment. Any such late charge assessed is immediately due and payable. |
| f. | Disbursement. Acceptance of the proceeds of the loan by Borrowers shall be deemed a representation and warranty by Borrower to Lender that all conditions precedent to the making of the Loan specified in Section 4 of this Agreement are satisfied. |
| g. | Payment. Borrower shall make quarterly installments of interest due under the Note to the Lender by ACH or wire transfer of immediately available funds denominated in United States dollars. |
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| 2. | Representations and Warranties. |
| a. | Existence. The Borrower is a corporation organized in the State of Delaware and is authorized to do business in each jurisdiction in which it operates. |
| b. | No Governmental Approval Required. No consent, approval or other authorization of or by any court, administrative agency, or other governmental authority is required in connection with the Borrower’s execution and delivery of or compliance with any of the Loan Documents or any other document or instrument relating to the Loan executed by the Borrower. |
| c. | Conflict; Breach. The Borrower’s execution and delivery of and compliance with the Loan Documents or any other documents and instruments relating to the Loan will not conflict with or result in a breach of any applicable law, judgment, order, writ, injunction, decree, rule or regulation of any court, administrative agency or other governmental authority, or of any agreement or other document or instrument to which the Borrower is a party or by which it is bound, and such action by the Borrower will not result in the creation or imposition of any lien, charge or encumbrance upon any property of the Borrower in favor of anyone other than the Lender. |
| d. | Litigation. There is no action, suit or proceeding pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower before or by any court, administrative agency or other governmental authority, or which brings into question the validity of the transactions contemplated hereby. |
| e. | Financial Statements. The financial statements of the Borrower, copies of which have been furnished to the Lender, have been prepared in accordance with generally accepted accounting principles consistently applied and fairly and accurately reflect the financial condition of the Borrower as of and for the period shown therein, and there has been no material adverse change in the financial condition or business of the Borrower since the date thereof. |
| f. | Tax Returns. Any and all federal, state and local income tax returns required to have been filed by the Borrower as of the date hereof have been filed, and all taxes reflected upon any such tax returns, all past due taxes, interest and penalties and all estimated payments required to be paid have been paid. |
| g. | Title to Personal Property. All personal property with respect to which the Borrower has granted to the Lender a security interest pursuant to any of the Loan Documents is otherwise owned by the Borrower free and clear of all liens, encumbrances, and security interests. |
| h. | Bankruptcy; Insolvency. The Borrower has not applied for nor consented to the appointment of a receiver, trustee or liquidator of itself or any of its property, admitted in writing its inability to pay its debts as they mature, made a general assignment for the benefit of creditors, been adjudicated as bankrupt or insolvent or filed a voluntary petition in Bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any Bankruptcy, reorganization, insolvency, readjustments of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law, and no action has been taken by it for the purpose of effecting any of the foregoing. No order, judgment or decree has been entered by any court of competent jurisdiction approving a petition seeking reorganization of the Borrower or all or a substantial part of the assets of the Borrower, or appointing a receiver, sequestrator, trustee or liquidator of it or any of its property. |
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| i. | ERISA. Borrower does not maintain nor is it a party to (or ever maintained or was a party to) any "Employee Welfare Benefit Plan", as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any other written, unwritten, formal or informal plan or agreement involving direct or indirect compensation other than workers' compensation, unemployment compensation and other government programs, under which Borrower has any present or future obligation or liability. Borrower does not maintain nor is it a party to (or ever maintained or was a party to) any "Employee Pension Benefit Plan", as defined in Section 3(2) of ERISA, and the Corporation does not contribute to any "Multiemployer Plan" as defined in Section 3(37) of ERISA. |
| 3. | Covenants. |
| a. | Financial Statements. The Borrower shall deliver, or cause to be delivered to Lender annually, within ninety (90) days after the end of each fiscal year, the prior year’s financial statement for each Borrower. Borrower must deliver to Lender along with the financial statement, copies of all bank and/or brokerage statements to verify liquidity, if applicable, and copies of all current eligible customer contracts in which Lender has a security interest. |
| b. | Tax Returns. The Borrower shall deliver, or cause to be delivered to Lender annually, on or before July 15 of each year, the prior year’s signed income tax returns and all schedules thereto for each Borrower, each of which must be prepared by a certified public accountant. Borrower shall also cause Guarantors to deliver to Lender their accountant prepared tax returns annually on or before July 15 of each year, the prior year’s signed federal and state income tax returns and all schedules thereto. |
| c. | Principal Office. The Borrower shall maintain its principal office and/or the office where it keeps its books and records in the same location unless it gives the Lender prior written notice of any proposed change in location thereof. |
| d. | Books and Records. The Borrower shall keep complete and accurate books and records in accordance with generally accepted accounting principles consistently applied. The Borrower shall furnish to the Lender all such written information relating to its affairs as may be requested by the Lender from time to time. |
| e. | Audit. The Lender shall have the right at any time but no more than once annually and from time to time upon prior written notice to Borrower to audit the books and records of the Borrower and the Borrower shall be obligated to make available for any such audit all books, records and other information that the Lender may request for such purpose and to cooperate fully with the Lender in connection therewith. The cost of such audit shall be paid for by Borrower. |
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| f. | Changed Circumstances. The Borrower shall promptly notify the Lender of any change in any fact or circumstance represented or warranted by the Borrower herein and in any other documents furnished to the Lender in connection with this Agreement. |
| g. | Lender’s Costs. The Borrower shall pay or reimburse the Lender for all reasonable out-of-pocket costs and expenses (including but not limited to reasonable out-of-pocket attorney’s fees) incurred by the Lender in connection with the preparation, review, modification and enforcement of the Loan Documents and the administration and collection of the Loan. |
| h. | Maintenance of Existence; Single Purpose. Borrower shall not make or permit any substantial change in, or cease in whole or in part, its present business, or engage in any other activities apart from its present business. |
| 4. | Conditions Precedent. The obligation of the Lender to make the Loan to the Borrower is subject to receipt by Lender of the following documents and the satisfaction of the following conditions precedent: |
| a. | Representations and Warranties. Each and all of the representations and warranties set forth in this Agreement and any other Loan Documents shall be true and correct in all respects. |
| b. | No Default. No Default or Event of Default exists or shall have occurred and be continuing on the date such Loan is made. |
| c. | Fees, Charges and Premiums. The Borrower shall cause to have paid all premiums on insurance policies and bonds, all filing or recording costs assessed against the Borrower, and origination fee of the Lender, and the legal fees and disbursements of the Lender’s counsel in connection with the Loan. |
| d. | Delivery of Loan Documents. The Loan Documents shall have been duly executed and delivered to the Lender and, where applicable, shall have been recorded or filed in the appropriate public office. |
| e. | Delivery of Other Documents. The following documents shall have been delivered by or on behalf of the Borrower to the Lender, and shall be true and correct in all material respects on and as of the date the Loan is made: |
| i. | Organizational Documents. Certificates of recent date of the appropriate authority or official from Borrower’s state of incorporation or organization certifying as to the good standing and corporate or other entity, as applicable, existence of Borrower; a copy of Borrower’s articles of formation or certificate of incorporation (or equivalent document), as applicable; and a certification by a duly authorized officer of the Borrower that such documents are true, correct, and complete. |
| ii. | By-laws and Corporate Authorizations. Copies of the bylaws, limited liability company agreement, or similar governing documents of Borrower together with all authorizing resolutions and evidence of corporate or other entity, as applicable, action taken by the Borrower to authorize the execution, delivery and performance by Borrower of the Loan Documents to which it is a party and the consummation by Borrower of the transactions contemplated hereby, certified as true, correct, and complete by a duly authorized officer of the Borrower. |
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| iii. | Incumbency Certificate. Certificate of incumbency of Borrower containing, and attesting to the genuineness of, the signatures of those officers authorized to act on behalf of the Borrower in connection with the Loan Documents to which Borrower is a party and the consummation by the Borrower of the transactions contemplated hereby. |
| 5. | Defaults. |
| a. | Event of Default. The occurrence of any one or more of the following events shall, at the sole option of the Lender, constitute an Event of Default hereunder: |
| i. | Borrower shall fail to make any payment of principal, interest, costs and/or fees due to Lender under the Note or under any of the other Loan Documents when the same is due and payable, whether at maturity or by acceleration or otherwise; |
| ii. | Except as otherwise specifically provided for in this Agreement, the Borrower shall fail to observe or perform any of the covenants or agreements on its part to be observed and performed under this Agreement or under any of the other Loan Documents; |
| iii. | Any representation or warranty by Borrower under this Agreement or under any of the other Loan Documents shall be untrue in any material respect when made or shall become untrue in any material respect during the term of the Loan; |
| iv. | Any Event of Default shall occur under any of the other Loan Documents or under the terms of any other document evidencing or securing any other loan facilities made by Lender to the Borrower or an affiliate of the Borrower; |
| v. | Any event of default by Borrower under any loan, extension of credit, security agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower’s property or ability to repay this Loan, or perform its respective obligations under this Agreement or any related document; |
| vi. | There shall be a material adverse change in the financial condition of the Borrower as determined by the Lender. |
| vii. | The Borrower or any Guarantor shall apply for or consent to the appointment of a receiver, trustee or liquidator of itself or himself or any of its or his property, admit in writing its or his inability to pay its or his debts as they mature, make a general assignment for the benefit of creditors, be adjudicated a Bankrupt, insolvent or file a voluntary petition in Bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any Bankruptcy reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute or an answer admitting the material allegations of a petition filed against it or him in any proceeding under any such law, or if action shall be taken by the Borrower for the purpose of effecting any of the foregoing; |
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| viii. | The dissolution, liquidation, or transfer or disposition (by operation of law or otherwise) for less than adequate consideration of a substantial portion of the assets of Borrower; |
| ix. | Without the prior written express consent of Lender, the direct or indirect transfer (by operation of law or otherwise) of a substantial part of the assets of Borrower; |
| b. | Acceleration and Remedies. Upon the occurrence of an Event of Default hereunder, in addition to any other rights or remedies available to it hereunder or under any other Loan Document or at law or in equity, and without notice, the Lender may exercise any or all of the following rights and remedies as it may deem necessary or appropriate: |
| i. | declare the outstanding principal balance of the Loan, together with all accrued and unpaid interest thereon and all other sums due hereunder or under any of the other Loan Documents, to be immediately due and payable in full; and/or |
| ii. | set off all property of the Borrower now or hereafter at any time in its possession in any capacity whatsoever including but not limited to, any balance or share of any deposit, trust or agency account, as to all of which property the Borrower hereby grants the Lender a lien and security interest. |
| iii. | Should an event described in Section 5(a)(vii) of this Business Loan Agreement occur, then Lender is entitled to pre-confirmation and post-confirmation interest, at the Default Rate, on the Loan arrearages and other charges notwithstanding the entry of a Judgment. Said interest on the Loan arrearages and other charges will be considered an element of an allowed secured claim provided for by any plan. |
| c. | Remedies Cumulative, etc. |
| i. | No Waiver by Conduct; Remedies Cumulative. No right or remedy conferred upon or reserved to the Lender under any of the Loan Documents, or with respect to any guaranty of payment of the Loan or of performance of any of the Borrower’s obligations under any of the Loan Documents or any collateral securing the payment of the Loan under any of the Loan Documents (collectively the “Collateral”), now or hereafter existing at law or in equity or by statute or other legislative enactment, is intended to be or shall be deemed exclusive of any other such right or remedy, and each and every such right or remedy shall be cumulative and concurrent, and shall be in addition to every other such right or remedy, and may be pursued singly, concurrently, successively or otherwise, at the sole discretion of the Lender, and shall not be exhausted by any one exercise thereof but may be exercised as often as occasion therefore shall occur. No act of the Lender shall be deemed or construed as an election to proceed under any one such right or remedy to the exclusion of any other such right or remedy; furthermore, each such right or remedy of the Lender shall be separate distinct and cumulative and none shall be given effect to the exclusion of any other. The failure to exercise or delay in exercising any such right or remedy, or the failure to insist upon strict performance of any term of any of the Loan Documents, shall not be construed as a waiver or release of the same, or of any Event of Default thereunder, or of any obligation or liability of the Borrower thereunder. Nothing herein, however, shall be construed to prevent the Lender from waiving any condition, obligation or default it should so elect. In the event of such election by the Lender, any waiver, in order to be effective, must be in writing and signed by the Lender, and any such waiver shall be strictly limited in its effect to the condition, obligation or default specified therein and shall not extend to any subsequent condition, obligation or default or impair any right of the Lender with respect thereto. |
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| ii. | Judgment/Non-merger. The recovery of any judgment by the Lender and/or the levy of execution under any judgment shall not affect in any manner or to any extent, liens or other security interests in any Collateral, or any rights, remedies or powers of the Lender under any of the Loan Documents or with respect to any Collateral, but such liens and security interests, and such rights, remedies and powers of the Lender shall continue unimpaired as before. Further, the entry of any judgment by the Lender shall not affect in any way the interest rate payable under any of the Loan Documents on any amounts due to the Lender, but interest shall continue to accrue on such amounts at the Default Rate (as hereinafter defined). |
| iii. | Waiver of Notice. The Borrower hereby waives presentment, demand, notice of nonpayment protest notice of protest, or other notice of dishonor, and any and all other notices in connection with any default in the payment of, or any enforcement of the payment of, the Loan. To the extent permitted by law, Borrower waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. The Borrower further waives and releases all procedural errors, defects and imperfections in any proceedings instituted by the Lender under the terms of any of the Loan Documents or with respect to any Collateral. |
| d. | Default Rate. Following the occurrence of any Event of Default and continuing either until such Event of Default is cured or until the principal sum then outstanding under the Note and all other sums payable under the Loan Documents are paid in full, the principal sum outstanding under the Note shall bear interest at the Default Rate (as defined in the Note), and shall be secured by the Collateral. |
| e. | Costs and Expenses. Following the occurrence of any Event of Default, the Borrower shall pay upon demand all costs and expenses (including all amounts paid to attorneys, accountants, appraisers, real estate brokers and other advisors employed by the Lender), incurred by the Lender in the exercise of any of its rights, remedies or powers under any of the Loan Documents or with respect to any Collateral with respect to such Event of Default and any amount thereof not paid promptly following demand therefor together with interest thereon at the Default Rate from the date of such demand, shall become part of the Loan and shall be secured by the Collateral. In connection with and as part of the foregoing, in the event that any of the Loan Documents is placed in the hands of an attorney for the collection of any sum payable thereunder, the Borrower agrees to pay reasonable attorneys’ fees for the collection of the amount being claimed under such Loan Document, as well as all costs, disbursements and allowances provided by law, the payment of which sums shall be secured by the Collateral. |
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| 6. | Miscellaneous. |
| a. | Maximum Rate of Interest on Loan. Notwithstanding anything to the contrary contained herein or in any other document executed in connection with the Loan, the effective rate of interest on the Loan shall not exceed the maximum effective rate of interest permitted by applicable law or regulation. The Borrower hereby agrees to give the Lender written notice in the event that Borrower has actual knowledge that an interest payment made to the Lender with respect to this Loan will cause the total interest payments collected in any one year to be usurious under applicable law, and the Lender hereby agrees not to collect knowingly any interest from the Borrower in the form of fees or otherwise which will render this Loan usurious. In the event that such interest would be usurious in the Lender’s opinion, the Lender reserves the right to reduce the interest payable by the Borrower or refund any such interest to Borrower. This provision shall survive Closing hereunder and the repayment of the Loan. |
| b. | Indemnity. The Borrower, for itself and all those claiming under or through it, agrees to protect, indemnify, defend and hold harmless the Lender, its directors, officers and employees, from and against any and all liability, expense, or damage of any kind or nature and from any suits, claims or demands, including reasonable legal fees and expenses, arising out of this Agreement or in connection herewith except on account of the gross negligence or willful misconduct of the Lender. This obligation specifically shall survive the repayment of the Loan. |
| c. | Limitation of Lender’s Liability. The rights and benefits of this Agreement shall not inure to the benefit of any third party, except as provided in section 6(d) hereinbelow. Notwithstanding anything to the contrary contained in this Agreement or in any of the other Loan Documents, or any conduct or course of conduct by the Borrower or the Lender or their respective affiliates, agents or employees, neither this Agreement nor any Loan Documents shall be construed as creating any rights, claims or causes of action against the Lender in favor of any other person or entity other than the Borrower. Lender undertakes no responsibility to review or inform Borrower of any matter in connection with any phase of Borrower’s business or operations. Borrower agrees that Lender shall not have liability to Borrower (whether sounding in tort, contract or otherwise) for losses suffered in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission, or event occurring in connection therewith or otherwise, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. |
| d. | Waiver of Consequential Damages. Lender shall have no liability with respect to, and Borrower hereby waives, releases, and agrees not to sue for, any special, indirect, or consequential damages suffered by Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby. |
| e. | Successors and Assigns. This Agreement inures to the benefit of and binds the parties hereto and their respective successors and assigns, and the words “Borrower” and “Lender” wherever occurring herein shall be deemed to include such respective successors and assigns. However, the Borrower shall not involuntarily, or by operation of law, assign or transfer any interest which it may have under this Agreement, or any part thereof, without the prior written approval of the Lender, except as otherwise expressly permitted in this Agreement. The Lender may assign or otherwise transfer the Loan and any or all of the Loan Documents to any other person, and such other person shall thereupon become vested with all of the benefits in respect thereof granted to the Lender herein or otherwise. The Lender shall have the right to sell participations in the Loan to any other persons or entities without the consent of or notice to the Borrower. Without the consent of or notice to the Borrower, the Lender may disclose to any prospective purchaser of any securities issued or to be issued by the Lender, and any prospective or actual purchaser of any participation or other interest in the Loan or any other loans made by the Lender to the Borrower, any financial or other information, data or material in the Lender’s possession relating to the Borrower or the Loan. |
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| f. | Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. |
| g. | Captions. The captions or headings of the paragraphs of this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the terms or provisions of this Agreement. |
| h. | Time of the Essence. All dates and time for the performance of the Borrower’s obligations set forth herein shall be deemed to be of the essence of this Agreement. |
| i. | Broker’s and Finder’s Fees. The Borrower represents and warrants that it has not dealt with or through any broker or other intermediary in connection with the Loan, and agrees to indemnify, defend and hold the Lender harmless from and against any loss, liability or damage (including attorneys’ fees and expenses) arising from any claim for a brokerage fee or finder’s fee in connection with the Loan. |
| j. | Publicity. The Lender may at its option and in such manner as it may determine, announce and publicize the source of the financing for the Loan to Borrower. |
| k. | Integration and Severability. The Loan Documents embody the entire agreement and understanding among Borrower and Lender, and supersede all prior agreements and understandings, relating to the subject matter hereof. In the event that for any reason one or more of the provisions of this Agreement or their application to any person or circumstance shall be held to be invalid, illegal or unenforceable in any respect or to any extent, such provisions shall nevertheless remain valid, legal and enforceable in all other respects and to such extent as may be permissible. In addition, any such invalidity, illegality or unenforceability shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. |
| l. | Definitions; Number and Gender. In the event the Borrower consists of more than one person or entity, the obligations and liabilities hereunder of each of such persons and entities shall be joint and several, and the word “Borrower” shall mean all or some or any of them. For purposes of this Agreement, the singular shall be deemed to include the plural and the neuter shall be deemed to include the masculine and feminine, as the context may require. If any provision of this Agreement refers to any action to be taken by any person, or which such person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such person, whether or not expressly specified in such provision. |
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| m. | Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any such covenant, the fact that it would be permitted by an exception to, or would be otherwise within the limitations of, another covenant shall not avoid the occurrence of an Event of Default if such action is taken or such condition exists. |
| n. | Governing Law. This Agreement is a contract made under, and shall be governed by and construed in accordance with, the law of the Commonwealth of Pennsylvania, substantive and procedural, applicable to contracts made and to be performed entirely within such State and without giving effect to choice of law principles of such State. |
| o. | Notices. All notices required or desired to be given to either of the parties hereunder shall be in writing and shall be deemed to have been sufficiently given for all purposes when (i) presented personally to such party, (ii) sent by certified or registered mail, return receipt requested, to such party at its address set forth below, or (iii) sent by email to such party at its electronic mail address set forth below: |
Borrower:
ELAUWIT CONNECTION, INC.
c/o Barry Rubens, CEO, ###
1520 Locust Street, Suite 901
Philadelphia, PA 19102
Lender:
ENDURANCE OPPORTUNITIES I LLC
Such notice shall be deemed to be given when received if delivered personally, or two (2) days after the date mailed if sent by certified or registered mail, return receipt requested, or at the time shown in a delivery confirmation report generated by the sender’s email system which indicates that delivery of the email to the recipient’s email address has been completed if sent by email. Any notice of any change in such address shall also be given in the manner set forth above. Whenever the giving of notice is required, the giving of such notice may be waived in writing by the party entitled to receive such notice.
| p. | Amendments; Consents and Waivers; Authentication. No amendment or modification of any Loan Documents, or any other document or agreement described in or related to this Agreement, or consent to or waiver of any Event of Default, or consent to or waiver of the application of any covenant or representation set forth in any of the Loan Documents, or any other document or agreement described in or related to this Agreement, or any release of Lender’s security interest in any Collateral, shall be effective unless it has been agreed to by Lender and memorialized in a written agreement that: |
| i. | specifically states that it is intended to amend or modify specific Loan Documents, or any other document or agreement described in or related to this Agreement, or waive any Event of Default or the application of any covenant or representation of any terms of specific Loan Documents, or any other document or agreement described in or related to this Agreement, or is intended to release Lender’s security interest in specific Collateral; and |
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| ii. | is executed by an authorized employee or officer of both parties, or by an authorized employee or officer of Lender with respect to a consent or waiver. The terms of an amendment, consent or waiver memorialized in any written agreement shall be effective only to the extent, and in the specific instance, and for the limited purpose to which Lender has agreed. |
| q. | Waiver of Jury Trial; Consent to Jurisdiction and Venue; Consent to Service of Process. THE BORROWER WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS RELATED TO ANY OF THE LOAN DOCUMENTS. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF THEREOF HAS OR HAVE MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. |
THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED BY BORROWER’S OWN FREE WILL, AND THAT BORROWER HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE BORROWER AGREES THAT THIS IS A BUSINESS LOAN AND THAT THE OBLIGATIONS EVIDENCED BY THIS AGREEMENT ARE EXEMPTED TRANSACTIONS UNDER THE TRUTH-IN-LENDING ACT, 15 U.S.C. SECTION 1601, ET SEQ. THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS READ AND UNDERSTANDS THE MEANING OF THIS WAIVER PROVISION. BORROWER HEREBY CONSENTS TO THE JURISDICTION OF THE PENNSYLVANIA COURT OF COMMON PLEAS, PHILADELPHIA COUNTY OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EASTERN DISTRICT OF PENNSYLVANIA FOR ANY PROCEEDING IN CONNECTION HEREWITH.
IF LENDER BRINGS ANY ACTION OR SUIT TO ENFORCE ANY OR ALL OF BORROWER’S OBLIGATIONS UNDER THE LOAN DOCUMENTS, SERVICE OF PROCESS MAY BE MADE UPON THE BORROWER BY MAILING A COPY OF THE SUMMONS BY PREPAID CERTIFIED FIRST CLASS MAIL, RETURN RECEIPT REQUESTED, TO THE BORROWER, AND IN SUCH EVENT BORROWER HEREBY WAIVES ANY AND ALL OBJECTIONS TO SUFFICIENCY OF SERVICE OF PROCESS. THE FOREGOING SHALL BE DEEMED INDEPENDENT COVENANTS.
Borrower further warrants and represents that it has a received a copy of all the Loan Documents, as that term is defined herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Business Loan Agreement on the date first above set forth.
| BORROWER: | ||
| ELAUWIT CONNECTION, INC. | ||
| A Delaware corporation | ||
| By: | /s/ Barry Rubens | |
| Name: | Barry Rubens | |
| Title: | CEO | |
| LENDER: | ||
| ENDURANCE OPPORTUNITIES I, LLC, | ||
| a Wyoming limited liability company | ||
| By: | /s/ Daniel McDonough | |
| Name: | Daniel McDonough | |
| Title: | Authorized Member of Endurance Financial, | |
| LLC, Manager of Endurance Opportunities I, LLC | ||
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Exhibit 10.16
COMMERCIAL PROMISSORY NOTE
| $250,000.00 | November 12, 2024 |
FOR VALUE RECEIVED, the undersigned, ELAUWIT CONNECTION, INC., ("Borrower"), with an address of 1520 Locust Street, Philadelphia, PA 19102, promises to pay to the order of ENDURANCE OPPORTUNITIES I LLC ("Lender") at its offices at 1621 Central Avenue, Cheyenne, WY 82001 or at such other place as the Lender may direct, the sum of Two Hundred Fifty Thousand Dollars ($250,000.00), together with interest as follows:
1. Definitions. In this Commercial Promissory Note ("Note"), all words and terms not defined herein shall have the respective meanings and be construed herein as provided in the Business Loan Agreement of even date hereof.
2. Loan Amount. This Note evidences a commercial loan by Lender to Borrower in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) (the "Loan").
3. Term of Loan. This Loan shall be for a term of eighteen (18) months ("Term"). The Note shall mature on the 18-month anniversary of the date of this Note ("Maturity Date"), unless extended at the Lender's sole option.
4. Interest Rate. The Loan shall bear interest at the fixed rate of sixteen and one-half percent (16.5%) per annum. The annual interest rate shall be calculated on a 360-day year basis; that is, by applying the ratio of the annual interest rate over a year of 360 days multiplied by the outstanding principal balance, multiplied by the actual number of days the principal is outstanding.
5. Payments. Borrower shall make quarterly payments of interest only payable on the first day of each month. On the Maturity Date, the entire outstanding principal amount of the Loan shall be due and payable, together with all other unpaid interest, fees, penalties, costs and expenses due under the Note.
6. Prepayment Penalty/Note not Assumable. Irrespective of the date of payment, Lender shall be entitled to collect a minimum of nine (9) months of interest payments on the outstanding amount due, including without limitation, upon acceleration of the amount due under the Note for any reason listed hereunder or upon satisfaction of the balance within the first nine (9) months from the date hereof. This amount is fully earned, non-refundable and due and payable on the date charged by Lender. After the payment of nine (9) monthly interest payments, Borrower shall have the privilege of prepaying this Note in full only, without penalty. No partial prepayment will be accepted at any time, unless the Loan is being paid in full. This Note is not assumable by any third-party and shall remain the obligation of the Borrower.
7. Late Fees. Borrower acknowledges that the failure of Borrower to make any payment of principal or interest, including the payment due at maturity, when the same is due and payable will cause Lender to incur additional expense in servicing the indebtedness evidenced by this Note and will deprive the Lender of the use of the monies due to Lender, the precise measure of which expenses and loss is not susceptible to exact determination. Accordingly, if Lender does not receive the entire amount of any payment required under this Note within five (5) days of its due date, including the payment at Maturity, the Borrower shall pay a late fee of ten percent (10%) of the monthly payment amount or outstanding balance at Maturity, which Borrower acknowledges is a reasonable basis on which to compensate Lender for additional expense incident to such delinquency. This shall not be construed to obligate Lender to accept any overdue installment nor to limit Lender’s rights and remedies as hereinafter set forth.
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8. Capitalization of all Charges. Lender will capitalize or add to the principal balance all amounts due Lender when billed or charged, including, without limitation, past due amounts, fees and interest, legal fees and late fees. Capitalization does not cure a default.
9. Collateral. Repayment of this Note is secured by, among other things, the Security Agreement of the Borrower granting Lender a security interest in and to eligible notes receivable as more particularly described therein.
10. Default. Borrower shall be in default under this Note upon the occurrence of any of the following events (each, an "Event of Default"):
a. Borrower shall fail to make any payment when due of principal, interest, costs and/or fees when due to Lender under the Note or under any of the other Loan Documents when due, whether at maturity or by acceleration or otherwise;
b. Except as otherwise specifically provided for in the Loan Agreement, the Borrower shall fail to observe or perform any of the covenants or agreements on its part to be observed and performed under the Loan Agreement, or under any of the other Loan Documents;
c. Any representation or warranty by Borrower under the Loan Agreement, or under any of the other Loan Documents shall be untrue in any material respect when made or shall become untrue in any material respect during the term of the Loan;
d. Any Event of Default shall occur under any of the other Loan Documents or under the terms of any other document evidencing or securing any other loan facilities made by Lender to the Borrower or an affiliate of the Borrower;
e. There shall be a material adverse change in the financial condition of the Borrower as determined by the Lender;
f. The Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator of itself or any of its property, admit in writing its inability to pay its debts as they mature, make a general assignment for the benefit of creditors, be adjudicated as bankrupt, insolvent or file a voluntary petition in Bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any Bankruptcy reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law, or if action shall be taken by the Borrower for the purpose of effecting any of the foregoing;
g. Any order, judgment or decree shall be entered by any court of competent jurisdiction, approving a Petition seeking reorganization of the Borrower, any member of the Borrower, or all or a substantial part of the assets of the Borrower, or appointing a receiver, sequestrator, trustee or liquidator of the Borrower, any member of the Borrower, or any of its property, and such order, judgment or decree shall continue unstayed and in effect for any period of sixty (60) days; or
h. The dissolution, liquidation, or transfer or disposition (by operation of law or otherwise) for less than adequate consideration of a substantial portion of the assets of Borrower;
i. Borrower, any guarantor, or any entity that is controlled by any guarantor (a "Related Entity") shall have defaulted in any respect under any note, mortgage, loan agreement or collateral documents executed by Borrower or any guarantor or Related Entity under or in connection with any loan transaction involving Borrower or such guarantor or Related Entity and Lender other than the Loan which is the subject of this Agreement, whether such other loan transaction(s) or any of them have been entered into prior to the date hereof or is entered into after the date hereof;
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j. If the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over Lender (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by Lender; (B) subject Lender or the Loan to any tax or change the basis of taxation payments to Lender of principal or interest due from Borrower to Lender hereunder (other than a change in the taxation of the overall net income of Lender; or (C) impose on Lender any other condition regarding the Loan or Lender’s funding thereof, and Lender shall determine (which determination shall be conclusive, absent any manifest error) that the result of the foregoing is to increase the cost to Lender of making or maintaining the Loan or to reduce the amount of principal or interest received by Lender hereunder, then Borrower shall pay to Lender, on demand, such additional amounts as Lender shall, from time to time, determine are sufficient to compensate and indemnify Lender from such increased cost or reduced amount.
11. Default Rate. Upon the occurrence of an Event of Default hereunder or under the Loan Agreement, the rate of interest shall be the greater of (i) twenty-six and one-half percent (26.5%) per annum or (ii) the maximum amount of interest permitted by applicable law to be contracted for, charged or received (the "Default Rate"). The Default Rate will be charged upon the outstanding loan balance upon the occurrence of an Event of Default and may be calculated retroactively upon the balance due.
12. Acceleration and Remedies. Upon the occurrence of an Event of Default hereunder, in addition to any other rights or remedies available to it hereunder or under any other Loan Document or at law or in equity, and without notice, the Lender may exercise any or all of the following rights and remedies as it may deem necessary or appropriate:
(i) declare the outstanding principal balance of the Loan, together with all accrued and unpaid interest thereon at the default rate and all other sums due hereunder or under any of the other Loan Documents, to be immediately due and payable in full together with reasonable attorneys’ fees for collection and payment of the same maybe enforced and recovered by the entry of judgment on this Note and the issuance of execution thereon; and/or
(ii) set off all property of the Borrower now or hereafter at any time in its possession in any capacity whatsoever including but not limited to, any balance or share of any deposit, trust, or agency account, as to all of which property the Borrower hereby grants the Lender a lien and security interest. Borrower hereby authorizes Lender, to the extent permissible by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts, and at Lender’s option, to administratively freeze all such accounts to allow Lender to protect Lender’s charge and setoff rights provided in this paragraph.
(iii) notwithstanding the absence or existence of any default hereunder Borrower shall pay upon demand any costs, expenses and attorney’s fees incurred by Lender in connection with any bankruptcy or insolvency proceedings filed by or against Borrower whether any such costs, expenses or attorney’s fees incurred in the sole discretion of Lender are related to the review, determination, protection, monitoring (including attendance at meetings or hearings) or enforcement by Lender of the indebtedness evidenced by the note, including, without limitation, the preparation and filing of any proof of claim, and without regard to whether Lender files, responds to or is a party to any application, motion or other proceeding.
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13. Waivers. The Borrower hereby waives presentment, demand, notice of nonpayment protest notice of protest, or other notice of dishonor, and any and all other notices in connection with any default under this Note, or any enforcement of the payment of, the Loan. To the extent permitted by law, Borrower waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect and agrees that such property may be sold to satisfy any judgment entered on this Note or the Security Documents, in whole or in part, and in any order as may be desired by Lender.
14. Changes. This Note can only be changed by an agreement in writing signed by the Borrower and the Lender.
15. Taxes. Borrower shall pay the cost of any revenue, tax or other stamps now or hereafter required by law at any time affixed to this Note or the Security Documents; and if any taxes shall be imposed with respect to debts secured by the Security Documents or with respect to notes evidencing debts so secured, Borrower agrees to pay or reimburse Lender upon demand the amount of such taxes, and if Borrower fails or refuses or is not legally permitted to do so, Lender may, at its option, accelerate this Note to maturity as in the case of a default by Borrower.
16. Binding on Successors and Assigns. All obligations under this Note are the joint and several unconditional obligations of the Borrower and all who succeed to its rights and interests. Release of any Borrower, any guarantor or any other property or Collateral shall not release any other Borrower, guarantor, property or Collateral from its obligations under the Note. Lender may transfer, assign its rights under this Note upon notice to Borrower.
17. No Waiver by Lender. Lender shall not be deemed to have modified or waived any of its rights or remedies hereunder unless such modification or waiver is in writing and signed by Lender and then only the extent specifically set forth therein. A waiver in any one event shall not be construed as continuing or as a waiver of or bar to the exercise of that right or remedy with respect to any subsequent event or occurrence.
18. Maximum Rate of Interest on Loan. Notwithstanding anything to the contrary contained herein or in any other document executed in connection with the Loan, the effective rate of interest on the Loan shall not exceed the maximum effective rate of interest permitted by applicable law or regulation. The Borrower hereby agrees to give the Lender written notice in the event that Borrower has actual knowledge that an interest payment made to the Lender with respect to this Loan will cause the total interest payments collected in any one year to be usurious under applicable law, and the Lender hereby agrees not to knowingly collect any interest from the Borrower in the form of fees or otherwise which will render this Loan usurious. In the event that such interest would be usurious in the Lender’s opinion, the Lender reserves the right to reduce the interest payable by the Borrower or refund any such interest to the Borrower.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
20. Action. Waiver of Jury Trial; Consent to Jurisdiction and Venue; Consent to Service of Process. Following the occurrence of any Event of Default, the Borrower shall pay upon demand all reasonable costs and expenses (including all amounts paid to attorneys, accountants, real estate brokers and other advisors employed by the Lender), incurred by the Lender in the exercise of any of its rights, remedies or powers under this Note, any of the Loan Documents or with respect to any Collateral with respect to such Event of Default and any amount thereof not paid promptly following demand therefor together with interest thereon at the Default Rate from the date of such demand, shall become part of the Loan and shall be secured by the Deed of Trust and all other Collateral. In connection with and as part of the foregoing, in the event that any of the Loan Documents as defined in the Business Loan Agreement, is placed in the hands of an attorney for the collection of any sum payable thereunder, the Borrower agrees to pay reasonable attorneys’ fees for the collection of the amount being claimed under such Loan Document, as well as all costs, disbursements and allowances provided by law, the payment of which sums shall be secured by the Deed of Trust and all other Collateral.
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THE BORROWER WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS RELATED TO ANY OF THE LOAN DOCUMENTS. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF THEREOF HAS OR HAVE MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED BY BORROWER'S OWN FREE WILL, AND THAT BORROWER HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE BORROWER AGREES THAT THIS IS A BUSINESS LOAN AND THAT THE OBLIGATIONS EVIDENCED BY THIS NOTE ARE EXEMPTED TRANSACTIONS UNDER THE TRUTH-IN-LENDING ACT, 15 U.S.C. SECTION 1601, ET SEQ.
THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS READ AND UNDERSTANDS THE MEANING OF THIS WAIVER PROVISION.
BORROWER HEREBY CONSENTS TO THE JURISDICTION OF THE PENNSYLVANIA COURT OF COMMON PLEAS, PHILADELPHIA COUNTY OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EASTERN DISTRICT OF PENNSYLVANIA FOR ANY PROCEEDING IN CONNECTION HEREWITH.
BORROWER HEREBY WAIVES OBJECTIONS AS TO VENUE AND CONVENIENCE OF FORUM.
IF LENDER BRINGS ANY ACTION OR SUIT TO ENFORCE ANY OR ALL OF BORROWER'S OBLIGATIONS UNDER THIS NOTE, THE LOAN DOCUMENTS, SERVICE OF PROCESS MAY BE MADE UPON THE BORROWER BY MAILING A COPY OF THE SUMMONS BY PREPAID CERTIFIED FIRST-CLASS MAIL, RETURN RECEIPT REQUESTED, TO THE BORROWER, AND IN SUCH EVENT BORROWER HEREBY WAIVES ANY AND ALL OBJECTIONS TO SUFFICIENCY OF SERVICE OF PROCESS. THE FOREGOING SHALL BE DEEMED INDEPENDENT COVENANTS.
22. CONFESSION OF JUDGMENT. EACH UNDERSIGNED BORROWER HEREBY GRANTS TO LENDER ALL THE RIGHT TO DECLARE ALL PRINCIPAL, INTEREST AND CHARGES OWED UNDER THIS NOTE TO BE IMMEDIATELY DUE AND PAYABLE, WITHOUT FURTHER ACTION OF ANY KIND ON THE PART OF THE LENDER. IN ADDITION, EACH UNDERSIGNED BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND CONFESS JUDGMENT THEREIN AGAINST IT FOR THE AMOUNT WHICH MAY BE DUE HEREIN AS EVIDENCED BY THE AFFIDAVIT SIGNED BY AN OFFICER OF THE LENDER SETTING FORTH THE AMOUNT THEN DUE, INCLUDING ACCRUED INTEREST, CHARGES, FEES, LATE CHARGES, COSTS, AND ANY AND ALL CHARGES, TAXES, AND LIENS PAID BY LENDER, ITS SUCCESSORS AND ASSIGNS AND IN ANY MANNER AFFECTING OR CHARGEABLE AGAINST THE PREMISES AND IMPROVEMENTS DESCRIBED IN THE DEED OF TRUST PLUS ATTORNEY’S FEES IN THE AMOUNT OF FIFTEEN (15%) PERCENT OF THE AMOUNT DUE, BUT IN NO EVENT LESS THAN FIVE THOUSAND ($5,000.00) DOLLARS, AND ANY AND ALL CHARGES, TAXES, AND LIENS PAID BY LENDER, ITS SUCCESSORS AND ASSIGNS AND IN ANY MANNER AFFECTING OR CHARGEABLE AGAINST THE PREMISES AND IMPROVEMENTS DESCRIBED IN THE DEED OF TRUST TOGETHER WITH COSTS OF SUIT AND RELEASE OF ERRORS. IF A COPY HEREOF, VERIFIED BY AN AFFIDAVIT, SHALL HAVE BEEN FILED IN SAID PROCEEDING, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY. EACH BORROWER WAIVES THE RIGHT TO NOTICE AND A HEARING, ANY STAY OF EXECUTION AND THE BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECT WITH RESPECT IN THE ENTRY OF ANY CONFESSION OF JUDGMENT. FURTHER, EACH UNDERSIGNED BORROWER SPECIFICALLY WAIVES AND DISCLAIMS THE BENEFITS AND PROTECTIONS AFFORDED TO IT AS PRINCIPAL, WITH RESPECT TO THE EXERCISE OF A POWER OF ATTORNEY BY THE AGENT UNDER 20 Pa.C.S.A. §5601.3(b), INCLUDING, BUT NOT LIMITED TO, THE AGENT’S DUTY TO ACT LOYALLY AND IN THE BEST INTERESTS OF THE PRINCIPAL AND TO AVOID CONFLICTS OF INTEREST. NO SINGLE EXERCISE SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE HOLDER HEREOF SHALL ELECT, UNTIL ALL SUMS PAYABLE OR THAT MAY BECOME PAYABLE HEREUNDER BY THE BORROWER HAVE BEEN PAID IN FULL.
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23. Rights Cumulative. No right or remedy conferred upon or reserved to the Lender under this Note or any of the Loan Documents, or with respect to any guaranty of payment of the Loan or of performance of any of the Borrower’s obligations under any of the Loan Documents or any collateral securing the payment of the Loan under any of the Loan Documents, now or hereafter existing at law or in equity or by statute or other legislative enactment, is intended to be or shall be deemed exclusive of any other such right or remedy, and each and every such right or remedy shall be cumulative and concurrent, and shall be in addition to every other such right or remedy, and may be pursued singly, concurrently, successively or otherwise, at the sole discretion of the Lender, and shall not be exhausted by any one exercise thereof but may be exercised as often as occasion therefore shall occur. No act of the Lender shall be deemed or construed as an election to proceed under any one such right or remedy to the exclusion of any other such right or remedy; furthermore, each such right or remedy of the Lender shall be separate distinct and cumulative and none shall be given effect to the exclusion of any other. The failure to exercise or delay in exercising any such right or remedy, or the failure to insist upon strict performance of any term of any of the Loan Documents, shall not be construed as a waiver or release of the same, or of any Event of Default thereunder, or of any obligation or liability of the Borrower thereunder. Nothing herein, however, shall be construed to prevent the Lender from waiving any condition, obligation, or default it should so elect. In the event of such election by the Lender, any waiver, in order to be effective, must be in writing and signed by the Lender, and any such waiver shall be strictly limited in its effect to the condition, obligation or default specified therein and shall not extend to any subsequent condition, obligation or default or impair any right of the Lender with respect thereto.
24. Judgment/Non-Merger. The recovery of any judgment by the Lender and/or the levy of execution under any judgment shall not affect in any manner or to any extent, liens or other security interests in any Collateral, or any rights, remedies or powers of the Lender under any of the Loan Documents or with respect to any Collateral, but such liens and security interests, and such rights, remedies and powers of the Lender shall continue unimpaired as before. Further, the entry of any judgment by the Lender shall not affect in any way the interest rate payable under any of the Loan Documents on any amounts due to the Lender, but interest shall continue to accrue on such amounts at the Default Rate (as defined above).
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25. Notices. All notices required hereunder shall be given in accordance with the terms of the Business Loan Agreement.
26. Partial Invalidity, If any term or provision of this Note or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Note or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected there by and each term and provision of this Note shall be valid and be enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Borrower has executed this Commercial Promissory Note on the date first above set forth.
| Attest: | BORROWER: | ||
| Elauwit Connection, Inc. | |||
| /s/ Sean Arnette | By: | /s/ Barry Rubens | |
| Secretary | Barry Rubens, CEO | ||
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ACKNOWLEDGEMENT
| STATE OF ______________ | : |
| : SS.: | |
| COUNTY OF _____________ | : |
BE IT REMEMBERED that on this ___ day of November, 2024 before me, the subscriber, personally came and appeared, _______________, to me known, who I am satisfied is and who being by me duly sworn did depose and say that he is the President of Elauwit Connection, Inc., and that he executed the foregoing instrument, that he sealed the same and delivered said instrument as the voluntary act and deed of the corporation.
WITNESS my hand and notarial seal the day and year aforesaid.
| My Commission Expires: |
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DISCLOSURE FOR CONFESSION OF JUDGMENT AND WAIVER OF JURY TRIAL
Date: November __, 2024
Undersigned: _____
Lender: Endurance Opportunities I LLC
The undersigned has executed, on the date hereof, a certain Business Loan Agreement, evidencing the obligations of Elauwit Connection, Inc. evidenced by a certain Commercial Promissory Note of even date herewith, in favor of Lender, under which Commercial Promissory Note the undersigned is obligated to repay monies to Lender.
A. THE UNDERSIGNED ACKNOWLEDGES AND AGREES THAT THE COMMERCIAL PROMISSORY NOTE CONTAINS PROVISIONS UNDER WHICH LENDER MAY ENTER JUDGMENT BY CONFESSION AGAINST THE UNDERSIGNED. IN ADDITION, THE COMMERCIAL PROMISSORY NOTE CONTAINS PROVISIONS WAIVING THE UNDERSIGNED’S RIGHT TO A JURY TRIAL. BEING FULLY AWARE OF ITS RIGHTS TO PRIOR NOTICE AND A HEARING ON THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT MAY BE ASSERTED AGAINST IT BY LENDER THEREUNDER BEFORE JUDGMENT IS ENTERED, THE UNDERSIGNED HEREBY FREELY, KNOWINGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO LENDER’S ENTERING JUDGMENT AGAINST IT BY CONFESSION PURSUANT TO THE TERMS THEREOF.
B. The undersigned certifies that a representative of Lender specifically called the confession of judgment and waiver of jury trial provisions in the Commercial Promissory Note to the attention of the undersigned, and/or that the undersigned was represented by legal counsel in connection therewith.
The undersigned hereby certifies that: (i) its annual income exceeds $10,000.00; (ii) all references to "the undersigned" above refers to all persons and entities signing below; and (iii) the undersigned received a copy hereof at the time of signing.
| BORROWER: | |||
| Elauwit Connection, Inc. | |||
| By: | |||
| Barry Rubens, CEO | |||
| Attest: | |||
| By: | |||
| Secretary | |||
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Exhibit 10.17
BUSINESS LOAN AGREEMENT
This BUSINESS LOAN AGREEMENT (“Agreement”) is made this 1st day of March, 2025 (the “Effective Date”), by and between Elauwit Connection, Inc. (the “Borrower”), a Delaware corporation with an address of 1520 Locust Street, Philadelphia, PA 19102, and Endurance Financial LLC, a Wyoming limited liability company with an address of 1621 Central Avenue, Cheyenne, WY 82001 (the “Lender”).
BACKGROUND
Borrower desires to borrow from Lender, and Lender, subject to the terms and conditions set forth herein, is prepared to lend Borrower the sum of Five Hundred Thousand Dollars and 00/100 Cents ($500,000) (the “Loan”), which Loan shall be secured by the various documents and instruments set forth herein.
As a condition and inducement to Lender to make the Loan, and as more particularly set forth in this Agreement, Borrower has agreed to provide Lender with a security interest in current notes receivable, and to deliver, or cause to be delivered, various documents and instruments, including a Note and Security Agreement. The execution and delivery of the documents and instruments by Borrower or other parties described herein are a condition of the Lender’s obligation to extend the Loan.
AGREEMENT
NOW THEREFORE, with the foregoing Background incorporated herein as if fully set forth at length, in consideration of the premises, and of the mutual promises and undertakings of the parties set forth herein, and with the intention of being legally bound hereby, the parties hereto agree as follows:
| 1. | The Loan. |
| a. | Loan Amount. Subject to the terms and conditions of this Agreement, Lender hereby agrees to make a term loan to Borrower in the principal amount of Five Hundred Thousand Dollars and 00/100 Cents ($500,000) for a period of Eighteen (18) months from the date hereof, unless extended in accordance with Section 1(c) below, the proceeds of which shall be used to finance its business operations. |
| b. | Security and Collateral. |
| i. | The Borrower’s obligation to repay the Loan and any other sums loaned to the Borrower by the Lender hereunder is evidenced by the Borrower’s Commercial Promissory Note dated this date in the principal amount of Five Hundred Thousand Dollars and 00/100 Cents ($500,000) (“Note”), providing for the payment of principal, together with interest thereon at the rate set forth therein, in such installments, at such times, and according to such further terms as set forth in the Note. |
| ii. | As security for the Note and all of the Borrower’s obligations thereunder and hereunder, the Borrower shall execute and deliver to the Lender or cause to be executed and delivered to the Lender, as the case may be, such security agreements, financing statements, continuation statements and other security instruments as the Lender shall require in order to create a valid and perfected security interest in the collateral more particularly described in the Security Agreement between the parties (such documents, together with the Note, are hereinafter collectively referred to as the “Loan Documents”). Such documents shall be in form and substance satisfactory to Lender, and any filing and recording fees with respect thereto shall be paid by the Borrower. |
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| c. | Interest Rate. From the Effective Date until paid in full, the outstanding principal balance of the Loan shall bear interest at a rate of Sixteen and One-Half Percent (16.5%) per annum, as provided in the Note. |
| d. | Default Rate of Interest. Upon and after the occurrence of an Event of Default, as defined in Section 5(a) hereinbelow, at the election of Lender, all interest accruing in respect of any loan or other obligation of Borrower under this Agreement shall be increased, as provided in the Note, by a per annum percentage equal to the lesser of (i) Ten Percent (10%) per annum; or (ii) the maximum amount of interest permitted by applicable law to be contracted for, charged or received (the “Default Rate”). The Default Rate will be charged upon the outstanding balance due upon the occurrence of an Event of Default and may be calculated retroactively, from the date of the occurrence of the Event of Default, upon the balance due. |
| e. | Fees. |
| i. | Origination Fee. As compensation for the expenses of underwriting and evaluating the Loan, the Borrower shall pay to the Lender a fee of Fifteen Thousand Dollars and 00/100 Cents ($15,000) on the date hereof. Such fee shall be in addition to the interest and any and all other amounts which the Borrower is required to pay under the Loan Documents in connection with the Loan. |
| ii. | Lender’s Expenses. On the Effective Date, Borrower shall pay all of Lender’s expenses in connection with the Loan, including the legal fees of Lender’s counsel and any filings costs or fees incurred to create a valid and perfected security interest in the Collateral. |
| iii. | Late Fees. If Lender does not receive the entire amount of any payment required under this Loan Agreement or any other Loan Documents within five (5) days of its due date, Borrowers shall, to the extent permitted by law, pay a late charge equal to ten percent (10.0%) of the overdue payment. Any such late charge assessed is immediately due and payable. |
| f. | Disbursement. Acceptance of the proceeds of the loan by Borrowers shall be deemed a representation and warranty by Borrower to Lender that all conditions precedent to the making of the Loan specified in Section 4 of this Agreement are satisfied. |
| g. | Payment. Borrower shall make quarterly installments of interest due under the Note to the Lender by ACH or wire transfer of immediately available funds denominated in United States dollars. |
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| 2. | Representations and Warranties. |
| a. | Existence. The Borrower is a corporation organized in the State of Delaware and is authorized to do business in each jurisdiction in which it operates. |
| b. | No Governmental Approval Required. No consent, approval or other authorization of or by any court, administrative agency, or other governmental authority is required in connection with the Borrower’s execution and delivery of or compliance with any of the Loan Documents or any other document or instrument relating to the Loan executed by the Borrower. |
| c. | Conflict; Breach. The Borrower’s execution and delivery of and compliance with the Loan Documents or any other documents and instruments relating to the Loan will not conflict with or result in a breach of any applicable law, judgment, order, writ, injunction, decree, rule or regulation of any court, administrative agency or other governmental authority, or of any agreement or other document or instrument to which the Borrower is a party or by which it is bound, and such action by the Borrower will not result in the creation or imposition of any lien, charge or encumbrance upon any property of the Borrower in favor of anyone other than the Lender. |
| d. | Litigation. There is no action, suit or proceeding pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower before or by any court, administrative agency or other governmental authority, or which brings into question the validity of the transactions contemplated hereby. |
| e. | Financial Statements. The financial statements of the Borrower, copies of which have been furnished to the Lender, have been prepared in accordance with generally accepted accounting principles consistently applied and fairly and accurately reflect the financial condition of the Borrower as of and for the period shown therein, and there has been no material adverse change in the financial condition or business of the Borrower since the date thereof. |
| f. | Tax Returns. Any and all federal, state and local income tax returns required to have been filed by the Borrower as of the date hereof have been filed, and all taxes reflected upon any such tax returns, all past due taxes, interest and penalties and all estimated payments required to be paid have been paid. |
| g. | Title to Personal Property. All personal property with respect to which the Borrower has granted to the Lender a security interest pursuant to any of the Loan Documents is otherwise owned by the Borrower free and clear of all liens, encumbrances, and security interests. |
| h. | Bankruptcy; Insolvency. The Borrower has not applied for nor consented to the appointment of a receiver, trustee or liquidator of itself or any of its property, admitted in writing its inability to pay its debts as they mature, made a general assignment for the benefit of creditors, been adjudicated as bankrupt or insolvent or filed a voluntary petition in Bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any Bankruptcy, reorganization, insolvency, readjustments of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law, and no action has been taken by it for the purpose of effecting any of the foregoing. No order, judgment or decree has been entered by any court of competent jurisdiction approving a petition seeking reorganization of the Borrower or all or a substantial part of the assets of the Borrower, or appointing a receiver, sequestrator, trustee or liquidator of it or any of its property. |
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| i. | ERISA. Borrower does not maintain nor is it a party to (or ever maintained or was a party to) any “Employee Welfare Benefit Plan”, as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or any other written, unwritten, formal or informal plan or agreement involving direct or indirect compensation other than workers’ compensation, unemployment compensation and other government programs, under which Borrower has any present or future obligation or liability. Borrower does not maintain nor is it a party to (or ever maintained or was a party to) any “Employee Pension Benefit Plan”, as defined in Section 3(2) of ERISA, and the Corporation does not contribute to any “Multiemployer Plan” as defined in Section 3(37) of ERISA. |
| 3. | Covenants. |
| a. | Financial Statements. The Borrower shall deliver, or cause to be delivered to Lender annually, within ninety (90) days after the end of each fiscal year, the prior year’s financial statement for each Borrower. Borrower must deliver to Lender along with the financial statement, copies of all bank and/or brokerage statements to verify liquidity, if applicable, and copies of all current eligible customer contracts in which Lender has a security interest. |
| b. | Tax Returns. The Borrower shall deliver, or cause to be delivered to Lender annually, on or before July 15 of each year, the prior year’s signed income tax returns and all schedules thereto for each Borrower, each of which must be prepared by a certified public accountant. Borrower shall also cause Guarantors to deliver to Lender their accountant prepared tax returns annually on or before July 15 of each year, the prior year’s signed federal and state income tax returns and all schedules thereto. |
| c. | Principal Office. The Borrower shall maintain its principal office and/or the office where it keeps its books and records in the same location unless it gives the Lender prior written notice of any proposed change in location thereof. |
| d. | Books and Records. The Borrower shall keep complete and accurate books and records in accordance with generally accepted accounting principles consistently applied. The Borrower shall furnish to the Lender all such written information relating to its affairs as may be requested by the Lender from time to time. |
| e. | Audit. The Lender shall have the right at any time but no more than once annually and from time to time upon prior written notice to Borrower to audit the books and records of the Borrower and the Borrower shall be obligated to make available for any such audit all books, records and other information that the Lender may request for such purpose and to cooperate fully with the Lender in connection therewith. The cost of such audit shall be paid for by Borrower. |
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| f. | Changed Circumstances. The Borrower shall promptly notify the Lender of any change in any fact or circumstance represented or warranted by the Borrower herein and in any other documents furnished to the Lender in connection with this Agreement. |
| g. | Lender’s Costs. The Borrower shall pay or reimburse the Lender for all reasonable out-of-pocket costs and expenses (including but not limited to reasonable out-of-pocket attorney’s fees) incurred by the Lender in connection with the preparation, review, modification and enforcement of the Loan Documents and the administration and collection of the Loan. |
| h. | Maintenance of Existence; Single Purpose. Borrower shall not make or permit any substantial change in, or cease in whole or in part, its present business, or engage in any other activities apart from its present business. |
| 4. | Conditions Precedent. The obligation of the Lender to make the Loan to the Borrower is subject to receipt by Lender of the following documents and the satisfaction of the following conditions precedent: |
| a. | Representations and Warranties. Each and all of the representations and warranties set forth in this Agreement and any other Loan Documents shall be true and correct in all respects. |
| b. | No Default. No Default or Event of Default exists or shall have occurred and be continuing on the date such Loan is made. |
| c. | Fees, Charges and Premiums. The Borrower shall cause to have paid all premiums on insurance policies and bonds, all filing or recording costs assessed against the Borrower, and origination fee of the Lender, and the legal fees and disbursements of the Lender’s counsel in connection with the Loan. |
| d. | Delivery of Loan Documents. The Loan Documents shall have been duly executed and delivered to the Lender and, where applicable, shall have been recorded or filed in the appropriate public office. |
| e. | Delivery of Other Documents. The following documents shall have been delivered by or on behalf of the Borrower to the Lender, and shall be true and correct in all material respects on and as of the date the Loan is made: |
| i. | Organizational Documents. Certificates of recent date of the appropriate authority or official from Borrower’s state of incorporation or organization certifying as to the good standing and corporate or other entity, as applicable, existence of Borrower; a copy of Borrower’s articles of formation or certificate of incorporation (or equivalent document), as applicable; and a certification by a duly authorized officer of the Borrower that such documents are true, correct, and complete. |
| ii. | By-laws and Corporate Authorizations. Copies of the bylaws, limited liability company agreement, or similar governing documents of Borrower together with all authorizing resolutions and evidence of corporate or other entity, as applicable, action taken by the Borrower to authorize the execution, delivery and performance by Borrower of the Loan Documents to which it is a party and the consummation by Borrower of the transactions contemplated hereby, certified as true, correct, and complete by a duly authorized officer of the Borrower. |
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| iii. | Incumbency Certificate. Certificate of incumbency of Borrower containing, and attesting to the genuineness of, the signatures of those officers authorized to act on behalf of the Borrower in connection with the Loan Documents to which Borrower is a party and the consummation by the Borrower of the transactions contemplated hereby. |
| 5. | Defaults. |
| a. | Event of Default. The occurrence of any one or more of the following events shall, at the sole option of the Lender, constitute an Event of Default hereunder: |
| i. | Borrower shall fail to make any payment of principal, interest, costs and/or fees due to Lender under the Note or under any of the other Loan Documents when the same is due and payable, whether at maturity or by acceleration or otherwise; |
| ii. | Except as otherwise specifically provided for in this Agreement, the Borrower shall fail to observe or perform any of the covenants or agreements on its part to be observed and performed under this Agreement or under any of the other Loan Documents; |
| iii. | Any representation or warranty by Borrower under this Agreement or under any of the other Loan Documents shall be untrue in any material respect when made or shall become untrue in any material respect during the term of the Loan; |
| iv. | Any Event of Default shall occur under any of the other Loan Documents or under the terms of any other document evidencing or securing any other loan facilities made by Lender to the Borrower or an affiliate of the Borrower; |
| v. | Any event of default by Borrower under any loan, extension of credit, security agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower’s property or ability to repay this Loan, or perform its respective obligations under this Agreement or any related document; |
| vi. | There shall be a material adverse change in the financial condition of the Borrower as determined by the Lender. |
| vii. | The Borrower or any Guarantor shall apply for or consent to the appointment of a receiver, trustee or liquidator of itself or himself or any of its or his property, admit in writing its or his inability to pay its or his debts as they mature, make a general assignment for the benefit of creditors, be adjudicated a Bankrupt, insolvent or file a voluntary petition in Bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any Bankruptcy reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute or an answer admitting the material allegations of a petition filed against it or him in any proceeding under any such law, or if action shall be taken by the Borrower for the purpose of effecting any of the foregoing; |
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| viii. | The dissolution, liquidation, or transfer or disposition (by operation of law or otherwise) for less than adequate consideration of a substantial portion of the assets of Borrower; |
| ix. | Without the prior written express consent of Lender, the direct or indirect transfer (by operation of law or otherwise) of a substantial part of the assets of Borrower; |
| b. | Acceleration and Remedies. Upon the occurrence of an Event of Default hereunder, in addition to any other rights or remedies available to it hereunder or under any other Loan Document or at law or in equity, and without notice, the Lender may exercise any or all of the following rights and remedies as it may deem necessary or appropriate: |
| i. | declare the outstanding principal balance of the Loan, together with all accrued and unpaid interest thereon and all other sums due hereunder or under any of the other Loan Documents, to be immediately due and payable in full; and/or |
| ii. | set off all property of the Borrower now or hereafter at any time in its possession in any capacity whatsoever including but not limited to, any balance or share of any deposit, trust or agency account, as to all of which property the Borrower hereby grants the Lender a lien and security interest. |
| iii. | Should an event described in Section 5(a)(vii) of this Business Loan Agreement occur, then Lender is entitled to pre-confirmation and post-confirmation interest, at the Default Rate, on the Loan arrearages and other charges notwithstanding the entry of a Judgment. Said interest on the Loan arrearages and other charges will be considered an element of an allowed secured claim provided for by any plan. |
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| c. | Remedies Cumulative, etc. |
| i. | No Waiver by Conduct; Remedies Cumulative. No right or remedy conferred upon or reserved to the Lender under any of the Loan Documents, or with respect to any guaranty of payment of the Loan or of performance of any of the Borrower’s obligations under any of the Loan Documents or any collateral securing the payment of the Loan under any of the Loan Documents (collectively the “Collateral”), now or hereafter existing at law or in equity or by statute or other legislative enactment, is intended to be or shall be deemed exclusive of any other such right or remedy, and each and every such right or remedy shall be cumulative and concurrent, and shall be in addition to every other such right or remedy, and may be pursued singly, concurrently, successively or otherwise, at the sole discretion of the Lender, and shall not be exhausted by any one exercise thereof but may be exercised as often as occasion therefore shall occur. No act of the Lender shall be deemed or construed as an election to proceed under any one such right or remedy to the exclusion of any other such right or remedy; furthermore, each such right or remedy of the Lender shall be separate distinct and cumulative and none shall be given effect to the exclusion of any other. The failure to exercise or delay in exercising any such right or remedy, or the failure to insist upon strict performance of any term of any of the Loan Documents, shall not be construed as a waiver or release of the same, or of any Event of Default thereunder, or of any obligation or liability of the Borrower thereunder. Nothing herein, however, shall be construed to prevent the Lender from waiving any condition, obligation or default it should so elect. In the event of such election by the Lender, any waiver, in order to be effective, must be in writing and signed by the Lender, and any such waiver shall be strictly limited in its effect to the condition, obligation or default specified therein and shall not extend to any subsequent condition, obligation or default or impair any right of the Lender with respect thereto. |
| ii. | Judgment/Non-merger. The recovery of any judgment by the Lender and/or the levy of execution under any judgment shall not affect in any manner or to any extent, liens or other security interests in any Collateral, or any rights, remedies or powers of the Lender under any of the Loan Documents or with respect to any Collateral, but such liens and security interests, and such rights, remedies and powers of the Lender shall continue unimpaired as before. Further, the entry of any judgment by the Lender shall not affect in any way the interest rate payable under any of the Loan Documents on any amounts due to the Lender, but interest shall continue to accrue on such amounts at the Default Rate (as hereinafter defined). |
| iii. | Waiver of Notice. The Borrower hereby waives presentment, demand, notice of nonpayment protest notice of protest, or other notice of dishonor, and any and all other notices in connection with any default in the payment of, or any enforcement of the payment of, the Loan. To the extent permitted by law, Borrower waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. The Borrower further waives and releases all procedural errors, defects and imperfections in any proceedings instituted by the Lender under the terms of any of the Loan Documents or with respect to any Collateral. |
| d. | Default Rate. Following the occurrence of any Event of Default and continuing either until such Event of Default is cured or until the principal sum then outstanding under the Note and all other sums payable under the Loan Documents are paid in full, the principal sum outstanding under the Note shall bear interest at the Default Rate (as defined in the Note), and shall be secured by the Collateral. |
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| e. | Costs and Expenses. Following the occurrence of any Event of Default, the Borrower shall pay upon demand all costs and expenses (including all amounts paid to attorneys, accountants, appraisers, real estate brokers and other advisors employed by the Lender), incurred by the Lender in the exercise of any of its rights, remedies or powers under any of the Loan Documents or with respect to any Collateral with respect to such Event of Default and any amount thereof not paid promptly following demand therefor together with interest thereon at the Default Rate from the date of such demand, shall become part of the Loan and shall be secured by the Collateral. In connection with and as part of the foregoing, in the event that any of the Loan Documents is placed in the hands of an attorney for the collection of any sum payable thereunder, the Borrower agrees to pay reasonable attorneys’ fees for the collection of the amount being claimed under such Loan Document, as well as all costs, disbursements and allowances provided by law, the payment of which sums shall be secured by the Collateral. |
| 6. | Miscellaneous. |
| a. | Maximum Rate of Interest on Loan. Notwithstanding anything to the contrary contained herein or in any other document executed in connection with the Loan, the effective rate of interest on the Loan shall not exceed the maximum effective rate of interest permitted by applicable law or regulation. The Borrower hereby agrees to give the Lender written notice in the event that Borrower has actual knowledge that an interest payment made to the Lender with respect to this Loan will cause the total interest payments collected in any one year to be usurious under applicable law, and the Lender hereby agrees not to collect knowingly any interest from the Borrower in the form of fees or otherwise which will render this Loan usurious. In the event that such interest would be usurious in the Lender’s opinion, the Lender reserves the right to reduce the interest payable by the Borrower or refund any such interest to Borrower. This provision shall survive Closing hereunder and the repayment of the Loan. |
| b. | Indemnity. The Borrower, for itself and all those claiming under or through it, agrees to protect, indemnify, defend and hold harmless the Lender, its directors, officers and employees, from and against any and all liability, expense, or damage of any kind or nature and from any suits, claims or demands, including reasonable legal fees and expenses, arising out of this Agreement or in connection herewith except on account of the gross negligence or willful misconduct of the Lender. This obligation specifically shall survive the repayment of the Loan. |
| c. | Limitation of Lender’s Liability. The rights and benefits of this Agreement shall not inure to the benefit of any third party, except as provided in section 6(d) hereinbelow. Notwithstanding anything to the contrary contained in this Agreement or in any of the other Loan Documents, or any conduct or course of conduct by the Borrower or the Lender or their respective affiliates, agents or employees, neither this Agreement nor any Loan Documents shall be construed as creating any rights, claims or causes of action against the Lender in favor of any other person or entity other than the Borrower. Lender undertakes no responsibility to review or inform Borrower of any matter in connection with any phase of Borrower’s business or operations. Borrower agrees that Lender shall not have liability to Borrower (whether sounding in tort, contract or otherwise) for losses suffered in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission, or event occurring in connection therewith or otherwise, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. |
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| d. | Waiver of Consequential Damages. Lender shall have no liability with respect to, and Borrower hereby waives, releases, and agrees not to sue for, any special, indirect, or consequential damages suffered by Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby. |
| e. | Successors and Assigns. This Agreement inures to the benefit of and binds the parties hereto and their respective successors and assigns, and the words “Borrower” and “Lender” wherever occurring herein shall be deemed to include such respective successors and assigns. However, the Borrower shall not involuntarily, or by operation of law, assign or transfer any interest which it may have under this Agreement, or any part thereof, without the prior written approval of the Lender, except as otherwise expressly permitted in this Agreement. The Lender may assign or otherwise transfer the Loan and any or all of the Loan Documents to any other person, and such other person shall thereupon become vested with all of the benefits in respect thereof granted to the Lender herein or otherwise. The Lender shall have the right to sell participations in the Loan to any other persons or entities without the consent of or notice to the Borrower. Without the consent of or notice to the Borrower, the Lender may disclose to any prospective purchaser of any securities issued or to be issued by the Lender, and any prospective or actual purchaser of any participation or other interest in the Loan or any other loans made by the Lender to the Borrower, any financial or other information, data or material in the Lender’s possession relating to the Borrower or the Loan. |
| f. | Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. |
| g. | Captions. The captions or headings of the paragraphs of this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the terms or provisions of this Agreement. |
| h. | Time of the Essence. All dates and time for the performance of the Borrower’s obligations set forth herein shall be deemed to be of the essence of this Agreement. |
| i. | Broker’s and Finder’s Fees. The Borrower represents and warrants that it has not dealt with or through any broker or other intermediary in connection with the Loan, and agrees to indemnify, defend and hold the Lender harmless from and against any loss, liability or damage (including attorneys’ fees and expenses) arising from any claim for a brokerage fee or finder’s fee in connection with the Loan. |
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| j. | Publicity. The Lender may at its option and in such manner as it may determine, announce and publicize the source of the financing for the Loan to Borrower. |
| k. | Integration and Severability. The Loan Documents embody the entire agreement and understanding among Borrower and Lender, and supersede all prior agreements and understandings, relating to the subject matter hereof. In the event that for any reason one or more of the provisions of this Agreement or their application to any person or circumstance shall be held to be invalid, illegal or unenforceable in any respect or to any extent, such provisions shall nevertheless remain valid, legal and enforceable in all other respects and to such extent as may be permissible. In addition, any such invalidity, illegality or unenforceability shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. |
| l. | Definitions; Number and Gender. In the event the Borrower consists of more than one person or entity, the obligations and liabilities hereunder of each of such persons and entities shall be joint and several, and the word “Borrower” shall mean all or some or any of them. For purposes of this Agreement, the singular shall be deemed to include the plural and the neuter shall be deemed to include the masculine and feminine, as the context may require. If any provision of this Agreement refers to any action to be taken by any person, or which such person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such person, whether or not expressly specified in such provision. |
| m. | Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any such covenant, the fact that it would be permitted by an exception to, or would be otherwise within the limitations of, another covenant shall not avoid the occurrence of an Event of Default if such action is taken or such condition exists. |
| n. | Governing Law. This Agreement is a contract made under, and shall be governed by and construed in accordance with, the law of the Commonwealth of Pennsylvania, substantive and procedural, applicable to contracts made and to be performed entirely within such State and without giving effect to choice of law principles of such State. |
| o. | Notices. All notices required or desired to be given to either of the parties hereunder shall be in writing and shall be deemed to have been sufficiently given for all purposes when (i) presented personally to such party, (ii) sent by certified or registered mail, return receipt requested, to such party at its address set forth below, or (iii) sent by email to such party at its electronic mail address set forth below: |
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| Borrower: | |
| ELAUWIT CONNECTION, INC. | |
| c/o Barry Rubens, CEO, ### | |
| 1520 Locust Street, Suite 901 | |
| Philadelphia, PA 19102 | |
| Lender: | |
| ENDURANCE FINANCIAL LLC |
Such notice shall be deemed to be given when received if delivered personally, or two (2) days after the date mailed if sent by certified or registered mail, return receipt requested, or at the time shown in a delivery confirmation report generated by the sender’s email system which indicates that delivery of the email to the recipient’s email address has been completed if sent by email. Any notice of any change in such address shall also be given in the manner set forth above. Whenever the giving of notice is required, the giving of such notice may be waived in writing by the party entitled to receive such notice.
| p. | Amendments; Consents and Waivers; Authentication. No amendment or modification of any Loan Documents, or any other document or agreement described in or related to this Agreement, or consent to or waiver of any Event of Default, or consent to or waiver of the application of any covenant or representation set forth in any of the Loan Documents, or any other document or agreement described in or related to this Agreement, or any release of Lender’s security interest in any Collateral, shall be effective unless it has been agreed to by Lender and memorialized in a written agreement that: |
| i. | specifically states that it is intended to amend or modify specific Loan Documents, or any other document or agreement described in or related to this Agreement, or waive any Event of Default or the application of any covenant or representation of any terms of specific Loan Documents, or any other document or agreement described in or related to this Agreement, or is intended to release Lender’s security interest in specific Collateral; and |
| ii. | is executed by an authorized employee or officer of both parties, or by an authorized employee or officer of Lender with respect to a consent or waiver. The terms of an amendment, consent or waiver memorialized in any written agreement shall be effective only to the extent, and in the specific instance, and for the limited purpose to which Lender has agreed. |
| q. | Waiver of Jury Trial; Consent to Jurisdiction and Venue; Consent to Service of Process. THE BORROWER WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS RELATED TO ANY OF THE LOAN DOCUMENTS. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF THEREOF HAS OR HAVE MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. |
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THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED BY BORROWER’S OWN FREE WILL, AND THAT BORROWER HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE BORROWER AGREES THAT THIS IS A BUSINESS LOAN AND THAT THE OBLIGATIONS EVIDENCED BY THIS AGREEMENT ARE EXEMPTED TRANSACTIONS UNDER THE TRUTH-IN-LENDING ACT, 15 U.S.C. SECTION 1601, ET SEQ. THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS READ AND UNDERSTANDS THE MEANING OF THIS WAIVER PROVISION. BORROWER HEREBY CONSENTS TO THE JURISDICTION OF THE PENNSYLVANIA COURT OF COMMON PLEAS, PHILADELPHIA COUNTY OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EASTERN DISTRICT OF PENNSYLVANIA FOR ANY PROCEEDING IN CONNECTION HEREWITH.
IF LENDER BRINGS ANY ACTION OR SUIT TO ENFORCE ANY OR ALL OF BORROWER’S OBLIGATIONS UNDER THE LOAN DOCUMENTS, SERVICE OF PROCESS MAY BE MADE UPON THE BORROWER BY MAILING A COPY OF THE SUMMONS BY PREPAID CERTIFIED FIRST CLASS MAIL, RETURN RECEIPT REQUESTED, TO THE BORROWER, AND IN SUCH EVENT BORROWER HEREBY WAIVES ANY AND ALL OBJECTIONS TO SUFFICIENCY OF SERVICE OF PROCESS. THE FOREGOING SHALL BE DEEMED INDEPENDENT COVENANTS.
Borrower further warrants and represents that it has a received a copy of all the Loan Documents, as that term is defined herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Business Loan Agreement on the date first above set forth.
| BORROWER: | ||
| ELAUWIT CONNECTION, INC. | ||
| A Delaware corporation | ||
| By: | /s/ Barry Rubens | |
| Name: | Barry Rubens | |
| Title: | CEO | |
| LENDER: | ||
| ENDURANCE FINANCIAL, LLC, | ||
| a Wyoming limited liability company | ||
| By: | /s/ Glenn Josephs | |
| Name: | Glenn Josephs | |
| Title: | Authorized Member of Endurance Financial, LLC | |
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Exhibit 10.18
COMMERCIAL PROMISSORY NOTE
| $500,000.00 | March 1, 2025 |
FOR VALUE RECEIVED, the undersigned, ELAUWIT CONNECTION, INC., (“Borrower”), with an address of 1520 Locust Street, Philadelphia, PA 19102, promises to pay to the order of ENDURANCE FINANCIAL LLC (“Lender”) at its offices at 1621 Central Avenue, Cheyenne, WY 82001 or at such other place as the Lender may direct, the sum of Five Hundred Thousand Dollars ($500,000.00), together with interest as follows:
1. Definitions. In this Commercial Promissory Note (“Note”), all words and terms not defined herein shall have the respective meanings and be construed herein as provided in the Business Loan Agreement of even date hereof.
2. Loan Amount. This Note evidences a commercial loan by Lender to Borrower in the amount of Five Hundred Thousand Dollars ($500,000.00) (the “Loan”).
3. Term of Loan. This Loan shall be for a term of eighteen (18) months (“Term”). The Note shall mature on the 18-month anniversary of the date of this Note (“Maturity Date”), unless extended at the Lender’s sole option.
4. Interest Rate. The Loan shall bear interest at the fixed rate of sixteen and one-half percent (16.5%) per annum. The annual interest rate shall be calculated on a 360-day year basis; that is, by applying the ratio of the annual interest rate over a year of 360 days multiplied by the outstanding principal balance, multiplied by the actual number of days the principal is outstanding.
5. Payments. Borrower shall make quarterly payments of interest only payable on the first day of each month. On the Maturity Date, the entire outstanding principal amount of the Loan shall be due and payable, together with all other unpaid interest, fees, penalties, costs and expenses due under the Note.
6. Prepayment Penalty/Note not Assumable. Irrespective of the date of payment, Lender shall be entitled to collect a minimum of nine (9) months of interest payments on the outstanding amount due, including without limitation, upon acceleration of the amount due under the Note for any reason listed hereunder or upon satisfaction of the balance within the first nine (9) months from the date hereof. This amount is fully earned, non-refundable and due and payable on the date charged by Lender. After the payment of nine (9) monthly interest payments, Borrower shall have the privilege of prepaying this Note in full only, without penalty. No partial prepayment will be accepted at any time, unless the Loan is being paid in full. This Note is not assumable by any third-party and shall remain the obligation of the Borrower.
7. Late Fees. Borrower acknowledges that the failure of Borrower to make any payment of principal or interest, including the payment due at maturity, when the same is due and payable will cause Lender to incur additional expense in servicing the indebtedness evidenced by this Note and will deprive the Lender of the use of the monies due to Lender, the precise measure of which expenses and loss is not susceptible to exact determination. Accordingly, if Lender does not receive the entire amount of any payment required under this Note within five (5) days of its due date, including the payment at Maturity, the Borrower shall pay a late fee of ten percent (10%) of the monthly payment amount or outstanding balance at Maturity, which Borrower acknowledges is a reasonable basis on which to compensate Lender for additional expense incident to such delinquency. This shall not be construed to obligate Lender to accept any overdue installment nor to limit Lender’s rights and remedies as hereinafter set forth.
8. Capitalization of all Charges. Lender will capitalize or add to the principal balance all amounts due Lender when billed or charged, including, without limitation, past due amounts, fees and interest, legal fees and late fees. Capitalization does not cure a default.
9. Collateral. Repayment of this Note is secured by, among other things, the Security Agreement of the Borrower granting Lender a security interest in and to eligible notes receivable as more particularly described therein.
10. Default. Borrower shall be in default under this Note upon the occurrence of any of the following events (each, an “Event of Default”):
a. Borrower shall fail to make any payment when due of principal, interest, costs and/or fees when due to Lender under the Note or under any of the other Loan Documents when due, whether at maturity or by acceleration or otherwise;
b. Except as otherwise specifically provided for in the Loan Agreement, the Borrower shall fail to observe or perform any of the covenants or agreements on its part to be observed and performed under the Loan Agreement, or under any of the other Loan Documents;
c. Any representation or warranty by Borrower under the Loan Agreement, or under any of the other Loan Documents shall be untrue in any material respect when made or shall become untrue in any material respect during the term of the Loan;
d. Any Event of Default shall occur under any of the other Loan Documents or under the terms of any other document evidencing or securing any other loan facilities made by Lender to the Borrower or an affiliate of the Borrower;
e. There shall be a material adverse change in the financial condition of the Borrower as determined by the Lender;
f. The Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator of itself or any of its property, admit in writing its inability to pay its debts as they mature, make a general assignment for the benefit of creditors, be adjudicated as bankrupt, insolvent or file a voluntary petition in Bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any Bankruptcy reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law, or if action shall be taken by the Borrower for the purpose of effecting any of the foregoing;
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g. Any order, judgment or decree shall be entered by any court of competent jurisdiction, approving a Petition seeking reorganization of the Borrower, any member of the Borrower, or all or a substantial part of the assets of the Borrower, or appointing a receiver, sequestrator, trustee or liquidator of the Borrower, any member of the Borrower, or any of its property, and such order, judgment or decree shall continue unstayed and in effect for any period of sixty (60) days; or
h. The dissolution, liquidation, or transfer or disposition (by operation of law or otherwise) for less than adequate consideration of a substantial portion of the assets of Borrower;
i. Borrower, any guarantor, or any entity that is controlled by any guarantor (a “Related Entity”) shall have defaulted in any respect under any note, mortgage, loan agreement or collateral documents executed by Borrower or any guarantor or Related Entity under or in connection with any loan transaction involving Borrower or such guarantor or Related Entity and Lender other than the Loan which is the subject of this Agreement, whether such other loan transaction(s) or any of them have been entered into prior to the date hereof or is entered into after the date hereof;
j. If the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over Lender (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by Lender; (B) subject Lender or the Loan to any tax or change the basis of taxation payments to Lender of principal or interest due from Borrower to Lender hereunder (other than a change in the taxation of the overall net income of Lender; or (C) impose on Lender any other condition regarding the Loan or Lender’s funding thereof, and Lender shall determine (which determination shall be conclusive, absent any manifest error) that the result of the foregoing is to increase the cost to Lender of making or maintaining the Loan or to reduce the amount of principal or interest received by Lender hereunder, then Borrower shall pay to Lender, on demand, such additional amounts as Lender shall, from time to time, determine are sufficient to compensate and indemnify Lender from such increased cost or reduced amount.
11. Default Rate. Upon the occurrence of an Event of Default hereunder or under the Loan Agreement, the rate of interest shall be the greater of (i) twenty-six and one-half percent (26.5%) per annum or (ii) the maximum amount of interest permitted by applicable law to be contracted for, charged or received (the “Default Rate”). The Default Rate will be charged upon the outstanding loan balance upon the occurrence of an Event of Default and may be calculated retroactively upon the balance due.
12. Acceleration and Remedies. Upon the occurrence of an Event of Default hereunder, in addition to any other rights or remedies available to it hereunder or under any other Loan Document or at law or in equity, and without notice, the Lender may exercise any or all of the following rights and remedies as it may deem necessary or appropriate:
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(i) declare the outstanding principal balance of the Loan, together with all accrued and unpaid interest thereon at the default rate and all other sums due hereunder or under any of the other Loan Documents, to be immediately due and payable in full together with reasonable attorneys’ fees for collection and payment of the same maybe enforced and recovered by the entry of judgment on this Note and the issuance of execution thereon; and/or
(ii) set off all property of the Borrower now or hereafter at any time in its possession in any capacity whatsoever including but not limited to, any balance or share of any deposit, trust, or agency account, as to all of which property the Borrower hereby grants the Lender a lien and security interest. Borrower hereby authorizes Lender, to the extent permissible by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts, and at Lender’s option, to administratively freeze all such accounts to allow Lender to protect Lender’s charge and setoff rights provided in this paragraph.
(iii) notwithstanding the absence or existence of any default hereunder Borrower shall pay upon demand any costs, expenses and attorney’s fees incurred by Lender in connection with any bankruptcy or insolvency proceedings filed by or against Borrower whether any such costs, expenses or attorney’s fees incurred in the sole discretion of Lender are related to the review, determination, protection, monitoring (including attendance at meetings or hearings) or enforcement by Lender of the indebtedness evidenced by the note, including, without limitation, the preparation and filing of any proof of claim, and without regard to whether Lender files, responds to or is a party to any application, motion or other proceeding.
13. Waivers. The Borrower hereby waives presentment, demand, notice of nonpayment protest notice of protest, or other notice of dishonor, and any and all other notices in connection with any default under this Note, or any enforcement of the payment of, the Loan. To the extent permitted by law, Borrower waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect and agrees that such property may be sold to satisfy any judgment entered on this Note or the Security Documents, in whole or in part, and in any order as may be desired by Lender.
14. Changes. This Note can only be changed by an agreement in writing signed by the Borrower and the Lender.
15. Taxes. Borrower shall pay the cost of any revenue, tax or other stamps now or hereafter required by law at any time affixed to this Note or the Security Documents; and if any taxes shall be imposed with respect to debts secured by the Security Documents or with respect to notes evidencing debts so secured, Borrower agrees to pay or reimburse Lender upon demand the amount of such taxes, and if Borrower fails or refuses or is not legally permitted to do so, Lender may, at its option, accelerate this Note to maturity as in the case of a default by Borrower.
16. Binding on Successors and Assigns. All obligations under this Note are the joint and several unconditional obligations of the Borrower and all who succeed to its rights and interests. Release of any Borrower, any guarantor or any other property or Collateral shall not release any other Borrower, guarantor, property or Collateral from its obligations under the Note. Lender may transfer, assign its rights under this Note upon notice to Borrower.
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17. No Waiver by Lender. Lender shall not be deemed to have modified or waived any of its rights or remedies hereunder unless such modification or waiver is in writing and signed by Lender and then only the extent specifically set forth therein. A waiver in any one event shall not be construed as continuing or as a waiver of or bar to the exercise of that right or remedy with respect to any subsequent event or occurrence.
18. Maximum Rate of Interest on Loan. Notwithstanding anything to the contrary contained herein or in any other document executed in connection with the Loan, the effective rate of interest on the Loan shall not exceed the maximum effective rate of interest permitted by applicable law or regulation. The Borrower hereby agrees to give the Lender written notice in the event that Borrower has actual knowledge that an interest payment made to the Lender with respect to this Loan will cause the total interest payments collected in any one year to be usurious under applicable law, and the Lender hereby agrees not to knowingly collect any interest from the Borrower in the form of fees or otherwise which will render this Loan usurious. In the event that such interest would be usurious in the Lender’s opinion, the Lender reserves the right to reduce the interest payable by the Borrower or refund any such interest to the Borrower.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
20. Action. Waiver of Jury Trial; Consent to Jurisdiction and Venue; Consent to Service of Process. Following the occurrence of any Event of Default, the Borrower shall pay upon demand all reasonable costs and expenses (including all amounts paid to attorneys, accountants, real estate brokers and other advisors employed by the Lender), incurred by the Lender in the exercise of any of its rights, remedies or powers under this Note, any of the Loan Documents or with respect to any Collateral with respect to such Event of Default and any amount thereof not paid promptly following demand therefor together with interest thereon at the Default Rate from the date of such demand, shall become part of the Loan and shall be secured by the Deed of Trust and all other Collateral. In connection with and as part of the foregoing, in the event that any of the Loan Documents as defined in the Business Loan Agreement, is placed in the hands of an attorney for the collection of any sum payable thereunder, the Borrower agrees to pay reasonable attorneys’ fees for the collection of the amount being claimed under such Loan Document, as well as all costs, disbursements and allowances provided by law, the payment of which sums shall be secured by the Deed of Trust and all other Collateral.
THE BORROWER WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS RELATED TO ANY OF THE LOAN DOCUMENTS. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF THEREOF HAS OR HAVE MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED BY BORROWER’S OWN FREE WILL, AND THAT BORROWER HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE BORROWER AGREES THAT THIS IS A BUSINESS LOAN AND THAT THE OBLIGATIONS EVIDENCED BY THIS NOTE ARE EXEMPTED TRANSACTIONS UNDER THE TRUTH-IN-LENDING ACT, 15 U.S.C. SECTION 1601, ET SEQ.
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THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS READ AND UNDERSTANDS THE MEANING OF THIS WAIVER PROVISION.
BORROWER HEREBY CONSENTS TO THE JURISDICTION OF THE PENNSYLVANIA COURT OF COMMON PLEAS, PHILADELPHIA COUNTY OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EASTERN DISTRICT OF PENNSYLVANIA FOR ANY PROCEEDING IN CONNECTION HEREWITH.
BORROWER HEREBY WAIVES OBJECTIONS AS TO VENUE AND CONVENIENCE OF FORUM.
IF LENDER BRINGS ANY ACTION OR SUIT TO ENFORCE ANY OR ALL OF BORROWER’S OBLIGATIONS UNDER THIS NOTE, THE LOAN DOCUMENTS, SERVICE OF PROCESS MAY BE MADE UPON THE BORROWER BY MAILING A COPY OF THE SUMMONS BY PREPAID CERTIFIED FIRST-CLASS MAIL, RETURN RECEIPT REQUESTED, TO THE BORROWER, AND IN SUCH EVENT BORROWER HEREBY WAIVES ANY AND ALL OBJECTIONS TO SUFFICIENCY OF SERVICE OF PROCESS. THE FOREGOING SHALL BE DEEMED INDEPENDENT COVENANTS.
22. CONFESSION OF JUDGMENT. EACH UNDERSIGNED BORROWER HEREBY GRANTS TO LENDER ALL THE RIGHT TO DECLARE ALL PRINCIPAL, INTEREST AND CHARGES OWED UNDER THIS NOTE TO BE IMMEDIATELY DUE AND PAYABLE, WITHOUT FURTHER ACTION OF ANY KIND ON THE PART OF THE LENDER. IN ADDITION, EACH UNDERSIGNED BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND CONFESS JUDGMENT THEREIN AGAINST IT FOR THE AMOUNT WHICH MAY BE DUE HEREIN AS EVIDENCED BY THE AFFIDAVIT SIGNED BY AN OFFICER OF THE LENDER SETTING FORTH THE AMOUNT THEN DUE, INCLUDING ACCRUED INTEREST, CHARGES, FEES, LATE CHARGES, COSTS, AND ANY AND ALL CHARGES, TAXES, AND LIENS PAID BY LENDER, ITS SUCCESSORS AND ASSIGNS AND IN ANY MANNER AFFECTING OR CHARGEABLE AGAINST THE PREMISES AND IMPROVEMENTS DESCRIBED IN THE DEED OF TRUST PLUS ATTORNEY’S FEES IN THE AMOUNT OF FIFTEEN (15%) PERCENT OF THE AMOUNT DUE, BUT IN NO EVENT LESS THAN FIVE THOUSAND ($5,000.00) DOLLARS, AND ANY AND ALL CHARGES, TAXES, AND LIENS PAID BY LENDER, ITS SUCCESSORS AND ASSIGNS AND IN ANY MANNER AFFECTING OR CHARGEABLE AGAINST THE PREMISES AND IMPROVEMENTS DESCRIBED IN THE DEED OF TRUST TOGETHER WITH COSTS OF SUIT AND RELEASE OF ERRORS. IF A COPY HEREOF, VERIFIED BY AN AFFIDAVIT, SHALL HAVE BEEN FILED IN SAID PROCEEDING, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY. EACH BORROWER WAIVES THE RIGHT TO NOTICE AND A HEARING, ANY STAY OF EXECUTION AND THE BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECT WITH RESPECT IN THE ENTRY OF ANY CONFESSION OF JUDGMENT. FURTHER, EACH UNDERSIGNED BORROWER SPECIFICALLY WAIVES AND DISCLAIMS THE BENEFITS AND PROTECTIONS AFFORDED TO IT AS PRINCIPAL, WITH RESPECT TO THE EXERCISE OF A POWER OF ATTORNEY BY THE AGENT UNDER 20 Pa.C.S.A. §5601.3(b), INCLUDING, BUT NOT LIMITED TO, THE AGENT’S DUTY TO ACT LOYALLY AND IN THE BEST INTERESTS OF THE PRINCIPAL AND TO AVOID CONFLICTS OF INTEREST. NO SINGLE EXERCISE SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE HOLDER HEREOF SHALL ELECT, UNTIL ALL SUMS PAYABLE OR THAT MAY BECOME PAYABLE HEREUNDER BY THE BORROWER HAVE BEEN PAID IN FULL.
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23. Rights Cumulative. No right or remedy conferred upon or reserved to the Lender under this Note or any of the Loan Documents, or with respect to any guaranty of payment of the Loan or of performance of any of the Borrower’s obligations under any of the Loan Documents or any collateral securing the payment of the Loan under any of the Loan Documents, now or hereafter existing at law or in equity or by statute or other legislative enactment, is intended to be or shall be deemed exclusive of any other such right or remedy, and each and every such right or remedy shall be cumulative and concurrent, and shall be in addition to every other such right or remedy, and may be pursued singly, concurrently, successively or otherwise, at the sole discretion of the Lender, and shall not be exhausted by any one exercise thereof but may be exercised as often as occasion therefore shall occur. No act of the Lender shall be deemed or construed as an election to proceed under any one such right or remedy to the exclusion of any other such right or remedy; furthermore, each such right or remedy of the Lender shall be separate distinct and cumulative and none shall be given effect to the exclusion of any other. The failure to exercise or delay in exercising any such right or remedy, or the failure to insist upon strict performance of any term of any of the Loan Documents, shall not be construed as a waiver or release of the same, or of any Event of Default thereunder, or of any obligation or liability of the Borrower thereunder. Nothing herein, however, shall be construed to prevent the Lender from waiving any condition, obligation, or default it should so elect. In the event of such election by the Lender, any waiver, in order to be effective, must be in writing and signed by the Lender, and any such waiver shall be strictly limited in its effect to the condition, obligation or default specified therein and shall not extend to any subsequent condition, obligation or default or impair any right of the Lender with respect thereto.
24. Judgment/Non-Merger. The recovery of any judgment by the Lender and/or the levy of execution under any judgment shall not affect in any manner or to any extent, liens or other security interests in any Collateral, or any rights, remedies or powers of the Lender under any of the Loan Documents or with respect to any Collateral, but such liens and security interests, and such rights, remedies and powers of the Lender shall continue unimpaired as before. Further, the entry of any judgment by the Lender shall not affect in any way the interest rate payable under any of the Loan Documents on any amounts due to the Lender, but interest shall continue to accrue on such amounts at the Default Rate (as defined above).
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25. Notices. All notices required hereunder shall be given in accordance with the terms of the Business Loan Agreement.
26. Partial Invalidity, If any term or provision of this Note or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Note or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected there by and each term and provision of this Note shall be valid and be enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Borrower has executed this Commercial Promissory Note on the date first above set forth.
| Attest: | BORROWER: | ||
| Elauwit Connection, Inc. | |||
| /s/ Sean Arnette | By: | /s/ Barry Rubens | |
| Secretary | Barry Rubens, CEO | ||
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ACKNOWLEDGEMENT
| STATE OF | : | |
| : SS.: | ||
| COUNTY OF | : |
BE IT REMEMBERED that on this ___ day of November, 2024 before me, the subscriber, personally came and appeared, __________________________, to me known, who I am satisfied is and who being by me duly sworn did depose and say that he is the President of Elauwit Connection, Inc., and that he executed the foregoing instrument, that he sealed the same and delivered said instrument as the voluntary act and deed of the corporation.
WITNESS my hand and notarial seal the day and year aforesaid.
| My Commission Expires: |
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DISCLOSURE FOR CONFESSION OF JUDGMENT AND WAIVER OF JURY TRIAL
| Date: | March __, 2025 | |
| Undersigned: | ________________________ | |
| Lender: | Endurance Financial LLC | |
The undersigned has executed, on the date hereof, a certain Business Loan Agreement, evidencing the obligations of Elauwit Connection, Inc. evidenced by a certain Commercial Promissory Note of even date herewith, in favor of Lender, under which Commercial Promissory Note the undersigned is obligated to repay monies to Lender.
A. THE UNDERSIGNED ACKNOWLEDGES AND AGREES THAT THE COMMERCIAL PROMISSORY NOTE CONTAINS PROVISIONS UNDER WHICH LENDER MAY ENTER JUDGMENT BY CONFESSION AGAINST THE UNDERSIGNED. IN ADDITION, THE COMMERCIAL PROMISSORY NOTE CONTAINS PROVISIONS WAIVING THE UNDERSIGNED’S RIGHT TO A JURY TRIAL. BEING FULLY AWARE OF ITS RIGHTS TO PRIOR NOTICE AND A HEARING ON THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT MAY BE ASSERTED AGAINST IT BY LENDER THEREUNDER BEFORE JUDGMENT IS ENTERED, THE UNDERSIGNED HEREBY FREELY, KNOWINGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO LENDER’S ENTERING JUDGMENT AGAINST IT BY CONFESSION PURSUANT TO THE TERMS THEREOF.
B. The undersigned certifies that a representative of Lender specifically called the confession of judgment and waiver of jury trial provisions in the Commercial Promissory Note to the attention of the undersigned, and/or that the undersigned was represented by legal counsel in connection therewith.
The undersigned hereby certifies that: (i) its annual income exceeds $10,000.00; (ii) all references to “the undersigned” above refers to all persons and entities signing below; and (iii) the undersigned received a copy hereof at the time of signing.
BORROWER:
Elauwit Connection, Inc.
| By: | ||||
| Barry Rubens, CEO | ||||
| Attest: | ||||
| By: | ||||
| Secretary | ||||
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Exhibit 10.19
BUSINESS LOAN AGREEMENT
This BUSINESS LOAN AGREEMENT (“Agreement”) is made this 25th day of March, 2025 (the “Effective Date”), by and between Elauwit Connection, Inc. (the “Borrower”), a Delaware corporation with an address of 1520 Locust Street, Philadelphia, PA 19102, and Endurance Financial LLC, a Wyoming limited liability company with an address of 1621 Central Avenue, Cheyenne, WY 82001 (the “Lender”).
BACKGROUND
Borrower desires to borrow from Lender, and Lender, subject to the terms and conditions set forth herein, is prepared to lend Borrower the sum of Five Hundred Thousand Dollars and 00/100 Cents ($500,000) (the "Loan"), which Loan shall be secured by the various documents and instruments set forth herein.
As a condition and inducement to Lender to make the Loan, and as more particularly set forth in this Agreement, Borrower has agreed to provide Lender with a security interest in current notes receivable, and to deliver, or cause to be delivered, various documents and instruments, including a Note and Security Agreement. The execution and delivery of the documents and instruments by Borrower or other parties described herein are a condition of the Lender’s obligation to extend the Loan.
AGREEMENT
NOW THEREFORE, with the foregoing Background incorporated herein as if fully set forth at length, in consideration of the premises, and of the mutual promises and undertakings of the parties set forth herein, and with the intention of being legally bound hereby, the parties hereto agree as follows:
| 1. | The Loan. |
| a. | Loan Amount. Subject to the terms and conditions of this Agreement, Lender hereby agrees to make a term loan to Borrower in the principal amount of Five Hundred Thousand Dollars and 00/100 Cents ($500,000) for a period of Ninety (90) days from the date hereof, unless extended in accordance with Section 1(c) below, the proceeds of which shall be used to finance its business operations. |
| b. | Security and Collateral. |
| i. | The Borrower’s obligation to repay the Loan and any other sums loaned to the Borrower by the Lender hereunder is evidenced by the Borrower’s Commercial Promissory Note dated this date in the principal amount of Five Hundred Thousand Dollars and 00/100 Cents ($500,000) ("Note"), providing for the payment of principal, together with interest thereon at the rate set forth therein, in such installments, at such times, and according to such further terms as set forth in the Note. |
| ii. | As security for the Note and all of the Borrower’s obligations thereunder and hereunder, the Borrower shall execute and deliver to the Lender or cause to be executed and delivered to the Lender, as the case may be, such security agreements, financing statements, continuation statements and other security instruments as the Lender shall require in order to create a valid and perfected security interest in the collateral more particularly described in the Security Agreement between the parties (such documents, together with the Note, are hereinafter collectively referred to as the “Loan Documents”). Such documents shall be in form and substance satisfactory to Lender, and any filing and recording fees with respect thereto shall be paid by the Borrower. |
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| c. | Interest Rate. From the Effective Date until paid in full, the outstanding principal balance of the Loan shall bear interest at a rate of Sixteen and One-Half Percent (16.5%) per annum, as provided in the Note. |
| d. | Default Rate of Interest. Upon and after the occurrence of an Event of Default, as defined in Section 5(a) hereinbelow, at the election of Lender, all interest accruing in respect of any loan or other obligation of Borrower under this Agreement shall be increased, as provided in the Note, by a per annum percentage equal to the lesser of (i) Ten Percent (10%) per annum; or (ii) the maximum amount of interest permitted by applicable law to be contracted for, charged or received (the "Default Rate"). The Default Rate will be charged upon the outstanding balance due upon the occurrence of an Event of Default and may be calculated retroactively, from the date of the occurrence of the Event of Default, upon the balance due. |
| e. | Fees. |
| i. | Origination Fee. As compensation for the expenses of underwriting and evaluating the Loan, the Borrower shall pay to the Lender a fee of Fifteen Thousand Dollars and 00/100 Cents ($15,000) on the date hereof. Such fee shall be in addition to the interest and any and all other amounts which the Borrower is required to pay under the Loan Documents in connection with the Loan. |
| ii. | Lender’s Expenses. On the Effective Date, Borrower shall pay all of Lender’s expenses in connection with the Loan, including the legal fees of Lender’s counsel and any filings costs or fees incurred to create a valid and perfected security interest in the Collateral. |
| iii. | Late Fees. If Lender does not receive the entire amount of any payment required under this Loan Agreement or any other Loan Documents within five (5) days of its due date, Borrowers shall, to the extent permitted by law, pay a late charge equal to ten percent (10.0%) of the overdue payment. Any such late charge assessed is immediately due and payable. |
| f. | Disbursement. Acceptance of the proceeds of the loan by Borrowers shall be deemed a representation and warranty by Borrower to Lender that all conditions precedent to the making of the Loan specified in Section 4 of this Agreement are satisfied. |
| g. | Payment. Borrower shall make monthly installments of interest due under the Note to the Lender by ACH or wire transfer of immediately available funds denominated in United States dollars. |
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| 2. | Representations and Warranties. |
| a. | Existence. The Borrower is a corporation organized in the State of Delaware and is authorized to do business in each jurisdiction in which it operates. |
| b. | No Governmental Approval Required. No consent, approval or other authorization of or by any court, administrative agency, or other governmental authority is required in connection with the Borrower’s execution and delivery of or compliance with any of the Loan Documents or any other document or instrument relating to the Loan executed by the Borrower. |
| c. | Conflict; Breach. The Borrower’s execution and delivery of and compliance with the Loan Documents or any other documents and instruments relating to the Loan will not conflict with or result in a breach of any applicable law, judgment, order, writ, injunction, decree, rule or regulation of any court, administrative agency or other governmental authority, or of any agreement or other document or instrument to which the Borrower is a party or by which it is bound, and such action by the Borrower will not result in the creation or imposition of any lien, charge or encumbrance upon any property of the Borrower in favor of anyone other than the Lender. |
| d. | Litigation. There is no action, suit or proceeding pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower before or by any court, administrative agency or other governmental authority, or which brings into question the validity of the transactions contemplated hereby. |
| e. | Financial Statements. The financial statements of the Borrower, copies of which have been furnished to the Lender, have been prepared in accordance with generally accepted accounting principles consistently applied and fairly and accurately reflect the financial condition of the Borrower as of and for the period shown therein, and there has been no material adverse change in the financial condition or business of the Borrower since the date thereof. |
| f. | Tax Returns. Any and all federal, state and local income tax returns required to have been filed by the Borrower as of the date hereof have been filed, and all taxes reflected upon any such tax returns, all past due taxes, interest and penalties and all estimated payments required to be paid have been paid. |
| g. | Title to Personal Property. All personal property with respect to which the Borrower has granted to the Lender a security interest pursuant to any of the Loan Documents is otherwise owned by the Borrower free and clear of all liens, encumbrances, and security interests. |
| h. | Bankruptcy; Insolvency. The Borrower has not applied for nor consented to the appointment of a receiver, trustee or liquidator of itself or any of its property, admitted in writing its inability to pay its debts as they mature, made a general assignment for the benefit of creditors, been adjudicated as bankrupt or insolvent or filed a voluntary petition in Bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any Bankruptcy, reorganization, insolvency, readjustments of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law, and no action has been taken by it for the purpose of effecting any of the foregoing. No order, judgment or decree has been entered by any court of competent jurisdiction approving a petition seeking reorganization of the Borrower or all or a substantial part of the assets of the Borrower, or appointing a receiver, sequestrator, trustee or liquidator of it or any of its property. |
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| i. | ERISA. Borrower does not maintain nor is it a party to (or ever maintained or was a party to) any "Employee Welfare Benefit Plan", as defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or any other written, unwritten, formal or informal plan or agreement involving direct or indirect compensation other than workers' compensation, unemployment compensation and other government programs, under which Borrower has any present or future obligation or liability. Borrower does not maintain nor is it a party to (or ever maintained or was a party to) any "Employee Pension Benefit Plan", as defined in Section 3(2) of ERISA, and the Corporation does not contribute to any "Multiemployer Plan" as defined in Section 3(37) of ERISA. |
| 3. | Covenants. |
| a. | Financial Statements. The Borrower shall deliver, or cause to be delivered to Lender annually, within ninety (90) days after the end of each fiscal year, the prior year’s financial statement for each Borrower. Borrower must deliver to Lender along with the financial statement, copies of all bank and/or brokerage statements to verify liquidity, if applicable, and copies of all current eligible customer contracts in which Lender has a security interest. |
| b. | Tax Returns. The Borrower shall deliver, or cause to be delivered to Lender annually, on or before July 15 of each year, the prior year’s signed income tax returns and all schedules thereto for each Borrower, each of which must be prepared by a certified public accountant. Borrower shall also cause Guarantors to deliver to Lender their accountant prepared tax returns annually on or before July 15 of each year, the prior year’s signed federal and state income tax returns and all schedules thereto. |
| c. | Principal Office. The Borrower shall maintain its principal office and/or the office where it keeps its books and records in the same location unless it gives the Lender prior written notice of any proposed change in location thereof. |
| d. | Books and Records. The Borrower shall keep complete and accurate books and records in accordance with generally accepted accounting principles consistently applied. The Borrower shall furnish to the Lender all such written information relating to its affairs as may be requested by the Lender from time to time. |
| e. | Audit. The Lender shall have the right at any time but no more than once annually and from time to time upon prior written notice to Borrower to audit the books and records of the Borrower and the Borrower shall be obligated to make available for any such audit all books, records and other information that the Lender may request for such purpose and to cooperate fully with the Lender in connection therewith. The cost of such audit shall be paid for by Borrower. |
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| f. | Changed Circumstances. The Borrower shall promptly notify the Lender of any change in any fact or circumstance represented or warranted by the Borrower herein and in any other documents furnished to the Lender in connection with this Agreement. |
| g. | Lender’s Costs. The Borrower shall pay or reimburse the Lender for all reasonable out-of-pocket costs and expenses (including but not limited to reasonable out-of-pocket attorney’s fees) incurred by the Lender in connection with the preparation, review, modification and enforcement of the Loan Documents and the administration and collection of the Loan. |
| h. | Maintenance of Existence; Single Purpose. Borrower shall not make or permit any substantial change in, or cease in whole or in part, its present business, or engage in any other activities apart from its present business. |
| 4. | Conditions Precedent. The obligation of the Lender to make the Loan to the Borrower is subject to receipt by Lender of the following documents and the satisfaction of the following conditions precedent: |
| a. | Representations and Warranties. Each and all of the representations and warranties set forth in this Agreement and any other Loan Documents shall be true and correct in all respects. |
| b. | No Default. No Default or Event of Default exists or shall have occurred and be continuing on the date such Loan is made. |
| c. | Fees, Charges and Premiums. The Borrower shall cause to have paid all premiums on insurance policies and bonds, all filing or recording costs assessed against the Borrower, and origination fee of the Lender, and the legal fees and disbursements of the Lender’s counsel in connection with the Loan. |
| d. | Delivery of Loan Documents. The Loan Documents shall have been duly executed and delivered to the Lender and, where applicable, shall have been recorded or filed in the appropriate public office. |
| e. | Delivery of Other Documents. The following documents shall have been delivered by or on behalf of the Borrower to the Lender, and shall be true and correct in all material respects on and as of the date the Loan is made: |
| i. | Organizational Documents. Certificates of recent date of the appropriate authority or official from Borrower’s state of incorporation or organization certifying as to the good standing and corporate or other entity, as applicable, existence of Borrower; a copy of Borrower’s articles of formation or certificate of incorporation (or equivalent document), as applicable; and a certification by a duly authorized officer of the Borrower that such documents are true, correct, and complete. |
| ii. | By-laws and Corporate Authorizations. Copies of the bylaws, limited liability company agreement, or similar governing documents of Borrower together with all authorizing resolutions and evidence of corporate or other entity, as applicable, action taken by the Borrower to authorize the execution, delivery and performance by Borrower of the Loan Documents to which it is a party and the consummation by Borrower of the transactions contemplated hereby, certified as true, correct, and complete by a duly authorized officer of the Borrower. |
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| iii. | Incumbency Certificate. Certificate of incumbency of Borrower containing, and attesting to the genuineness of, the signatures of those officers authorized to act on behalf of the Borrower in connection with the Loan Documents to which Borrower is a party and the consummation by the Borrower of the transactions contemplated hereby. |
| 5. | Defaults. |
| a. | Event of Default. The occurrence of any one or more of the following events shall, at the sole option of the Lender, constitute an Event of Default hereunder: |
| i. | Borrower shall fail to make any payment of principal, interest, costs and/or fees due to Lender under the Note or under any of the other Loan Documents when the same is due and payable, whether at maturity or by acceleration or otherwise; |
| ii. | Except as otherwise specifically provided for in this Agreement, the Borrower shall fail to observe or perform any of the covenants or agreements on its part to be observed and performed under this Agreement or under any of the other Loan Documents; |
| iii. | Any representation or warranty by Borrower under this Agreement or under any of the other Loan Documents shall be untrue in any material respect when made or shall become untrue in any material respect during the term of the Loan; |
| iv. | Any Event of Default shall occur under any of the other Loan Documents or under the terms of any other document evidencing or securing any other loan facilities made by Lender to the Borrower or an affiliate of the Borrower; |
| v. | Any event of default by Borrower under any loan, extension of credit, security agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower’s property or ability to repay this Loan, or perform its respective obligations under this Agreement or any related document; |
| vi. | There shall be a material adverse change in the financial condition of the Borrower as determined by the Lender. |
| vii. | The Borrower or any Guarantor shall apply for or consent to the appointment of a receiver, trustee or liquidator of itself or himself or any of its or his property, admit in writing its or his inability to pay its or his debts as they mature, make a general assignment for the benefit of creditors, be adjudicated a Bankrupt, insolvent or file a voluntary petition in Bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any Bankruptcy reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute or an answer admitting the material allegations of a petition filed against it or him in any proceeding under any such law, or if action shall be taken by the Borrower for the purpose of effecting any of the foregoing; |
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| viii. | The dissolution, liquidation, or transfer or disposition (by operation of law or otherwise) for less than adequate consideration of a substantial portion of the assets of Borrower; |
| ix. | Without the prior written express consent of Lender, the direct or indirect transfer (by operation of law or otherwise) of a substantial part of the assets of Borrower; |
| b. | Acceleration and Remedies. Upon the occurrence of an Event of Default hereunder, in addition to any other rights or remedies available to it hereunder or under any other Loan Document or at law or in equity, and without notice, the Lender may exercise any or all of the following rights and remedies as it may deem necessary or appropriate: |
| i. | declare the outstanding principal balance of the Loan, together with all accrued and unpaid interest thereon and all other sums due hereunder or under any of the other Loan Documents, to be immediately due and payable in full; and/or |
| ii. | set off all property of the Borrower now or hereafter at any time in its possession in any capacity whatsoever including but not limited to, any balance or share of any deposit, trust or agency account, as to all of which property the Borrower hereby grants the Lender a lien and security interest. |
| iii. | Should an event described in Section 5(a)(vii) of this Business Loan Agreement occur, then Lender is entitled to pre-confirmation and post-confirmation interest, at the Default Rate, on the Loan arrearages and other charges notwithstanding the entry of a Judgment. Said interest on the Loan arrearages and other charges will be considered an element of an allowed secured claim provided for by any plan. |
| c. | Remedies Cumulative, etc. |
| i. | No Waiver by Conduct; Remedies Cumulative. No right or remedy conferred upon or reserved to the Lender under any of the Loan Documents, or with respect to any guaranty of payment of the Loan or of performance of any of the Borrower’s obligations under any of the Loan Documents or any collateral securing the payment of the Loan under any of the Loan Documents (collectively the “Collateral”), now or hereafter existing at law or in equity or by statute or other legislative enactment, is intended to be or shall be deemed exclusive of any other such right or remedy, and each and every such right or remedy shall be cumulative and concurrent, and shall be in addition to every other such right or remedy, and may be pursued singly, concurrently, successively or otherwise, at the sole discretion of the Lender, and shall not be exhausted by any one exercise thereof but may be exercised as often as occasion therefore shall occur. No act of the Lender shall be deemed or construed as an election to proceed under any one such right or remedy to the exclusion of any other such right or remedy; furthermore, each such right or remedy of the Lender shall be separate distinct and cumulative and none shall be given effect to the exclusion of any other. The failure to exercise or delay in exercising any such right or remedy, or the failure to insist upon strict performance of any term of any of the Loan Documents, shall not be construed as a waiver or release of the same, or of any Event of Default thereunder, or of any obligation or liability of the Borrower thereunder. Nothing herein, however, shall be construed to prevent the Lender from waiving any condition, obligation or default it should so elect. In the event of such election by the Lender, any waiver, in order to be effective, must be in writing and signed by the Lender, and any such waiver shall be strictly limited in its effect to the condition, obligation or default specified therein and shall not extend to any subsequent condition, obligation or default or impair any right of the Lender with respect thereto. |
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| ii. | Judgment/Non-merger. The recovery of any judgment by the Lender and/or the levy of execution under any judgment shall not affect in any manner or to any extent, liens or other security interests in any Collateral, or any rights, remedies or powers of the Lender under any of the Loan Documents or with respect to any Collateral, but such liens and security interests, and such rights, remedies and powers of the Lender shall continue unimpaired as before. Further, the entry of any judgment by the Lender shall not affect in any way the interest rate payable under any of the Loan Documents on any amounts due to the Lender, but interest shall continue to accrue on such amounts at the Default Rate (as hereinafter defined). |
| iii. | Waiver of Notice. The Borrower hereby waives presentment, demand, notice of nonpayment protest notice of protest, or other notice of dishonor, and any and all other notices in connection with any default in the payment of, or any enforcement of the payment of, the Loan. To the extent permitted by law, Borrower waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. The Borrower further waives and releases all procedural errors, defects and imperfections in any proceedings instituted by the Lender under the terms of any of the Loan Documents or with respect to any Collateral. |
| d. | Default Rate. Following the occurrence of any Event of Default and continuing either until such Event of Default is cured or until the principal sum then outstanding under the Note and all other sums payable under the Loan Documents are paid in full, the principal sum outstanding under the Note shall bear interest at the Default Rate (as defined in the Note), and shall be secured by the Collateral. |
| e. | Costs and Expenses. Following the occurrence of any Event of Default, the Borrower shall pay upon demand all costs and expenses (including all amounts paid to attorneys, accountants, appraisers, real estate brokers and other advisors employed by the Lender), incurred by the Lender in the exercise of any of its rights, remedies or powers under any of the Loan Documents or with respect to any Collateral with respect to such Event of Default and any amount thereof not paid promptly following demand therefor together with interest thereon at the Default Rate from the date of such demand, shall become part of the Loan and shall be secured by the Collateral. In connection with and as part of the foregoing, in the event that any of the Loan Documents is placed in the hands of an attorney for the collection of any sum payable thereunder, the Borrower agrees to pay reasonable attorneys’ fees for the collection of the amount being claimed under such Loan Document, as well as all costs, disbursements and allowances provided by law, the payment of which sums shall be secured by the Collateral. |
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| 6. | Miscellaneous. |
| a. | Maximum Rate of Interest on Loan. Notwithstanding anything to the contrary contained herein or in any other document executed in connection with the Loan, the effective rate of interest on the Loan shall not exceed the maximum effective rate of interest permitted by applicable law or regulation. The Borrower hereby agrees to give the Lender written notice in the event that Borrower has actual knowledge that an interest payment made to the Lender with respect to this Loan will cause the total interest payments collected in any one year to be usurious under applicable law, and the Lender hereby agrees not to collect knowingly any interest from the Borrower in the form of fees or otherwise which will render this Loan usurious. In the event that such interest would be usurious in the Lender’s opinion, the Lender reserves the right to reduce the interest payable by the Borrower or refund any such interest to Borrower. This provision shall survive Closing hereunder and the repayment of the Loan. |
| b. | Indemnity. The Borrower, for itself and all those claiming under or through it, agrees to protect, indemnify, defend and hold harmless the Lender, its directors, officers and employees, from and against any and all liability, expense, or damage of any kind or nature and from any suits, claims or demands, including reasonable legal fees and expenses, arising out of this Agreement or in connection herewith except on account of the gross negligence or willful misconduct of the Lender. This obligation specifically shall survive the repayment of the Loan. |
| c. | Limitation of Lender’s Liability. The rights and benefits of this Agreement shall not inure to the benefit of any third party, except as provided in section 6(d) hereinbelow. Notwithstanding anything to the contrary contained in this Agreement or in any of the other Loan Documents, or any conduct or course of conduct by the Borrower or the Lender or their respective affiliates, agents or employees, neither this Agreement nor any Loan Documents shall be construed as creating any rights, claims or causes of action against the Lender in favor of any other person or entity other than the Borrower. Lender undertakes no responsibility to review or inform Borrower of any matter in connection with any phase of Borrower’s business or operations. Borrower agrees that Lender shall not have liability to Borrower (whether sounding in tort, contract or otherwise) for losses suffered in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission, or event occurring in connection therewith or otherwise, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. |
| d. | Waiver of Consequential Damages. Lender shall have no liability with respect to, and Borrower hereby waives, releases, and agrees not to sue for, any special, indirect, or consequential damages suffered by Borrower in connection with, arising out of, or in any way related to the Loan Documents or the transactions contemplated thereby. |
| e. | Successors and Assigns. This Agreement inures to the benefit of and binds the parties hereto and their respective successors and assigns, and the words “Borrower” and “Lender” wherever occurring herein shall be deemed to include such respective successors and assigns. However, the Borrower shall not involuntarily, or by operation of law, assign or transfer any interest which it may have under this Agreement, or any part thereof, without the prior written approval of the Lender, except as otherwise expressly permitted in this Agreement. The Lender may assign or otherwise transfer the Loan and any or all of the Loan Documents to any other person, and such other person shall thereupon become vested with all of the benefits in respect thereof granted to the Lender herein or otherwise. The Lender shall have the right to sell participations in the Loan to any other persons or entities without the consent of or notice to the Borrower. Without the consent of or notice to the Borrower, the Lender may disclose to any prospective purchaser of any securities issued or to be issued by the Lender, and any prospective or actual purchaser of any participation or other interest in the Loan or any other loans made by the Lender to the Borrower, any financial or other information, data or material in the Lender’s possession relating to the Borrower or the Loan. |
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| f. | Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. |
| g. | Captions. The captions or headings of the paragraphs of this Agreement are for convenience only and shall not control or affect the meaning or construction of any of the terms or provisions of this Agreement. |
| h. | Time of the Essence. All dates and time for the performance of the Borrower’s obligations set forth herein shall be deemed to be of the essence of this Agreement. |
| i. | Broker’s and Finder’s Fees. The Borrower represents and warrants that it has not dealt with or through any broker or other intermediary in connection with the Loan, and agrees to indemnify, defend and hold the Lender harmless from and against any loss, liability or damage (including attorneys’ fees and expenses) arising from any claim for a brokerage fee or finder’s fee in connection with the Loan. |
| j. | Publicity. The Lender may at its option and in such manner as it may determine, announce and publicize the source of the financing for the Loan to Borrower. |
| k. | Integration and Severability. The Loan Documents embody the entire agreement and understanding among Borrower and Lender, and supersede all prior agreements and understandings, relating to the subject matter hereof. In the event that for any reason one or more of the provisions of this Agreement or their application to any person or circumstance shall be held to be invalid, illegal or unenforceable in any respect or to any extent, such provisions shall nevertheless remain valid, legal and enforceable in all other respects and to such extent as may be permissible. In addition, any such invalidity, illegality or unenforceability shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. |
| l. | Definitions; Number and Gender. In the event the Borrower consists of more than one person or entity, the obligations and liabilities hereunder of each of such persons and entities shall be joint and several, and the word “Borrower” shall mean all or some or any of them. For purposes of this Agreement, the singular shall be deemed to include the plural and the neuter shall be deemed to include the masculine and feminine, as the context may require. If any provision of this Agreement refers to any action to be taken by any person, or which such person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such person, whether or not expressly specified in such provision. |
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| m. | Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any such covenant, the fact that it would be permitted by an exception to, or would be otherwise within the limitations of, another covenant shall not avoid the occurrence of an Event of Default if such action is taken or such condition exists. |
| n. | Governing Law. This Agreement is a contract made under, and shall be governed by and construed in accordance with, the law of the Commonwealth of Pennsylvania, substantive and procedural, applicable to contracts made and to be performed entirely within such State and without giving effect to choice of law principles of such State. |
| o. | Notices. All notices required or desired to be given to either of the parties hereunder shall be in writing and shall be deemed to have been sufficiently given for all purposes when (i) presented personally to such party, (ii) sent by certified or registered mail, return receipt requested, to such party at its address set forth below, or (iii) sent by email to such party at its electronic mail address set forth below: |
Borrower:
ELAUWIT CONNECTION, INC.
ELAUWIT CONNECTION, INC.
c/o Barry Rubens, CEO, ###
1520 Locust Street, Suite 901
Philadelphia, PA 19102
Lender:
ENDURANCE FINANCIAL LLC
c/o Glenn Josephs, CFO, ###
1520 Locust Street, Suite 901
Philadelphia, PA 19102
Such notice shall be deemed to be given when received if delivered personally, or two (2) days after the date mailed if sent by certified or registered mail, return receipt requested, or at the time shown in a delivery confirmation report generated by the sender’s email system which indicates that delivery of the email to the recipient’s email address has been completed if sent by email. Any notice of any change in such address shall also be given in the manner set forth above. Whenever the giving of notice is required, the giving of such notice may be waived in writing by the party entitled to receive such notice.
| p. | Amendments; Consents and Waivers; Authentication. No amendment or modification of any Loan Documents, or any other document or agreement described in or related to this Agreement, or consent to or waiver of any Event of Default, or consent to or waiver of the application of any covenant or representation set forth in any of the Loan Documents, or any other document or agreement described in or related to this Agreement, or any release of Lender’s security interest in any Collateral, shall be effective unless it has been agreed to by Lender and memorialized in a written agreement that: |
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| i. | specifically states that it is intended to amend or modify specific Loan Documents, or any other document or agreement described in or related to this Agreement, or waive any Event of Default or the application of any covenant or representation of any terms of specific Loan Documents, or any other document or agreement described in or related to this Agreement, or is intended to release Lender’s security interest in specific Collateral; and |
| ii. | is executed by an authorized employee or officer of both parties, or by an authorized employee or officer of Lender with respect to a consent or waiver. The terms of an amendment, consent or waiver memorialized in any written agreement shall be effective only to the extent, and in the specific instance, and for the limited purpose to which Lender has agreed. |
| q. | Waiver of Jury Trial; Consent to Jurisdiction and Venue; Consent to Service of Process. THE BORROWER WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS RELATED TO ANY OF THE LOAN DOCUMENTS. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF THEREOF HAS OR HAVE MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. |
THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED BY BORROWER’S OWN FREE WILL, AND THAT BORROWER HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE BORROWER AGREES THAT THIS IS A BUSINESS LOAN AND THAT THE OBLIGATIONS EVIDENCED BY THIS AGREEMENT ARE EXEMPTED TRANSACTIONS UNDER THE TRUTH-IN-LENDING ACT, 15 U.S.C. SECTION 1601, ET SEQ. THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS READ AND UNDERSTANDS THE MEANING OF THIS WAIVER PROVISION. BORROWER HEREBY CONSENTS TO THE JURISDICTION OF THE PENNSYLVANIA COURT OF COMMON PLEAS, PHILADELPHIA COUNTY OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EASTERN DISTRICT OF PENNSYLVANIA FOR ANY PROCEEDING IN CONNECTION HEREWITH.
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IF LENDER BRINGS ANY ACTION OR SUIT TO ENFORCE ANY OR ALL OF BORROWER’S OBLIGATIONS UNDER THE LOAN DOCUMENTS, SERVICE OF PROCESS MAY BE MADE UPON THE BORROWER BY MAILING A COPY OF THE SUMMONS BY PREPAID CERTIFIED FIRST CLASS MAIL, RETURN RECEIPT REQUESTED, TO THE BORROWER, AND IN SUCH EVENT BORROWER HEREBY WAIVES ANY AND ALL OBJECTIONS TO SUFFICIENCY OF SERVICE OF PROCESS. THE FOREGOING SHALL BE DEEMED INDEPENDENT COVENANTS.
Borrower further warrants and represents that it has a received a copy of all the Loan Documents, as that term is defined herein.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Business Loan Agreement on the date first above set forth.
| BORROWER: | ||
| ELAUWIT CONNECTION, INC. | ||
| A Delaware corporation | ||
| By: | /s/ Barry Rubens | |
| Name: Barry Rubens | ||
| Title: CEO | ||
| LENDER: | ||
| ENDURANCE FINANCIAL, LLC, | ||
| a Wyoming limited liability company | ||
| By: | /s/ Glenn Josephs | |
| Name: Glenn Josephs | ||
| Title: Authorized Member of Endurance Financial, LLC | ||
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Exhibit 10.20
COMMERCIAL PROMISSORY NOTE
| $500,000.00 | March 25, 2025 |
FOR VALUE RECEIVED, the undersigned, ELAUWIT CONNECTION, INC., ("Borrower"), with an address of 1520 Locust Street, Philadelphia, PA 19102, promises to pay to the order of ENDURANCE FINANCIAL LLC ("Lender") at its offices at 1621 Central Avenue, Cheyenne, WY 82001 or at such other place as the Lender may direct, the sum of Five Hundred Thousand Dollars ($500,000.00), together with interest as follows:
1. Definitions. In this Commercial Promissory Note ("Note"), all words and terms not defined herein shall have the respective meanings and be construed herein as provided in the Business Loan Agreement of even date hereof.
2. Loan Amount. This Note evidences a commercial loan by Lender to Borrower in the amount of Five Hundred Thousand Dollars ($500,000.00) (the "Loan").
3. Term of Loan. This Loan shall be for a term of Ninety (90) days ("Term"). The Note shall mature on the 90-day anniversary of the date of this Note ("Maturity Date"), unless extended at the Lender's sole option.
4. Interest Rate. The Loan shall bear interest at the fixed rate of sixteen and one-half percent (16.5%) per annum. The annual interest rate shall be calculated on a 360-day year basis; that is, by applying the ratio of the annual interest rate over a year of 360 days multiplied by the outstanding principal balance, multiplied by the actual number of days the principal is outstanding.
5. Payments. Borrower shall make monthly payments of interest only payable on the first day of each month. On the Maturity Date, the entire outstanding principal amount of the Loan shall be due and payable, together with all other unpaid interest, fees, penalties, costs and expenses due under the Note.
6. Prepayment Penalty/Note not Assumable. Irrespective of the date of payment, Lender shall be entitled to collect a minimum of nine (9) months of interest payments on the outstanding amount due, including without limitation, upon acceleration of the amount due under the Note for any reason listed hereunder or upon satisfaction of the balance within the first nine (9) months from the date hereof. This amount is fully earned, non-refundable and due and payable on the date charged by Lender. After the payment of nine (9) monthly interest payments, Borrower shall have the privilege of prepaying this Note in full only, without penalty. No partial prepayment will be accepted at any time, unless the Loan is being paid in full. This Note is not assumable by any third-party and shall remain the obligation of the Borrower.
7. Late Fees. Borrower acknowledges that the failure of Borrower to make any payment of principal or interest, including the payment due at maturity, when the same is due and payable will cause Lender to incur additional expense in servicing the indebtedness evidenced by this Note and will deprive the Lender of the use of the monies due to Lender, the precise measure of which expenses and loss is not susceptible to exact determination. Accordingly, if Lender does not receive the entire amount of any payment required under this Note within five (5) days of its due date, including the payment at Maturity, the Borrower shall pay a late fee of ten percent (10%) of the monthly payment amount or outstanding balance at Maturity, which Borrower acknowledges is a reasonable basis on which to compensate Lender for additional expense incident to such delinquency. This shall not be construed to obligate Lender to accept any overdue installment nor to limit Lender’s rights and remedies as hereinafter set forth.
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8. Capitalization of all Charges. Lender will capitalize or add to the principal balance all amounts due Lender when billed or charged, including, without limitation, past due amounts, fees and interest, legal fees and late fees. Capitalization does not cure a default.
9. Collateral. Repayment of this Note is secured by, among other things, the Security Agreement of the Borrower granting Lender a security interest in and to eligible notes receivable as more particularly described therein.
10. Default. Borrower shall be in default under this Note upon the occurrence of any of the following events (each, an "Event of Default"):
a. Borrower shall fail to make any payment when due of principal, interest, costs and/or fees when due to Lender under the Note or under any of the other Loan Documents when due, whether at maturity or by acceleration or otherwise;
b. Except as otherwise specifically provided for in the Loan Agreement, the Borrower shall fail to observe or perform any of the covenants or agreements on its part to be observed and performed under the Loan Agreement, or under any of the other Loan Documents;
c. Any representation or warranty by Borrower under the Loan Agreement, or under any of the other Loan Documents shall be untrue in any material respect when made or shall become untrue in any material respect during the term of the Loan;
d. Any Event of Default shall occur under any of the other Loan Documents or under the terms of any other document evidencing or securing any other loan facilities made by Lender to the Borrower or an affiliate of the Borrower;
e. There shall be a material adverse change in the financial condition of the Borrower as determined by the Lender;
f. The Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator of itself or any of its property, admit in writing its inability to pay its debts as they mature, make a general assignment for the benefit of creditors, be adjudicated as bankrupt, insolvent or file a voluntary petition in Bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any Bankruptcy reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law, or if action shall be taken by the Borrower for the purpose of effecting any of the foregoing;
g. Any order, judgment or decree shall be entered by any court of competent jurisdiction, approving a Petition seeking reorganization of the Borrower, any member of the Borrower, or all or a substantial part of the assets of the Borrower, or appointing a receiver, sequestrator, trustee or liquidator of the Borrower, any member of the Borrower, or any of its property, and such order, judgment or decree shall continue unstayed and in effect for any period of sixty (60) days; or
h. The dissolution, liquidation, or transfer or disposition (by operation of law or otherwise) for less than adequate consideration of a substantial portion of the assets of Borrower;
i. Borrower, any guarantor, or any entity that is controlled by any guarantor (a "Related Entity") shall have defaulted in any respect under any note, mortgage, loan agreement or collateral documents executed by Borrower or any guarantor or Related Entity under or in connection with any loan transaction involving Borrower or such guarantor or Related Entity and Lender other than the Loan which is the subject of this Agreement, whether such other loan transaction(s) or any of them have been entered into prior to the date hereof or is entered into after the date hereof;
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j. If the introduction of, or any change in any applicable law, treaty, rule, regulation or guideline or in the interpretation or administration thereof by any governmental authority or any central bank or other fiscal, monetary or other authority having jurisdiction over Lender (whether or not having the force of law) shall (A) impose, modify or deem applicable any assessment, reserve, special deposit or similar requirement against assets held by, or deposits in or for the account of or loans by, or any other acquisition of funds or disbursements by Lender; (B) subject Lender or the Loan to any tax or change the basis of taxation payments to Lender of principal or interest due from Borrower to Lender hereunder (other than a change in the taxation of the overall net income of Lender; or (C) impose on Lender any other condition regarding the Loan or Lender’s funding thereof, and Lender shall determine (which determination shall be conclusive, absent any manifest error) that the result of the foregoing is to increase the cost to Lender of making or maintaining the Loan or to reduce the amount of principal or interest received by Lender hereunder, then Borrower shall pay to Lender, on demand, such additional amounts as Lender shall, from time to time, determine are sufficient to compensate and indemnify Lender from such increased cost or reduced amount.
11. Default Rate. Upon the occurrence of an Event of Default hereunder or under the Loan Agreement, the rate of interest shall be the greater of (i) twenty-six and one-half percent (26.5%) per annum or (ii) the maximum amount of interest permitted by applicable law to be contracted for, charged or received (the "Default Rate"). The Default Rate will be charged upon the outstanding loan balance upon the occurrence of an Event of Default and may be calculated retroactively upon the balance due.
12. Acceleration and Remedies. Upon the occurrence of an Event of Default hereunder, in addition to any other rights or remedies available to it hereunder or under any other Loan Document or at law or in equity, and without notice, the Lender may exercise any or all of the following rights and remedies as it may deem necessary or appropriate:
(i) declare the outstanding principal balance of the Loan, together with all accrued and unpaid interest thereon at the default rate and all other sums due hereunder or under any of the other Loan Documents, to be immediately due and payable in full together with reasonable attorneys’ fees for collection and payment of the same maybe enforced and recovered by the entry of judgment on this Note and the issuance of execution thereon; and/or
(ii) set off all property of the Borrower now or hereafter at any time in its possession in any capacity whatsoever including but not limited to, any balance or share of any deposit, trust, or agency account, as to all of which property the Borrower hereby grants the Lender a lien and security interest. Borrower hereby authorizes Lender, to the extent permissible by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts, and at Lender’s option, to administratively freeze all such accounts to allow Lender to protect Lender’s charge and setoff rights provided in this paragraph.
(iii) notwithstanding the absence or existence of any default hereunder Borrower shall pay upon demand any costs, expenses and attorney’s fees incurred by Lender in connection with any bankruptcy or insolvency proceedings filed by or against Borrower whether any such costs, expenses or attorney’s fees incurred in the sole discretion of Lender are related to the review, determination, protection, monitoring (including attendance at meetings or hearings) or enforcement by Lender of the indebtedness evidenced by the note, including, without limitation, the preparation and filing of any proof of claim, and without regard to whether Lender files, responds to or is a party to any application, motion or other proceeding.
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13. Waivers. The Borrower hereby waives presentment, demand, notice of nonpayment protest notice of protest, or other notice of dishonor, and any and all other notices in connection with any default under this Note, or any enforcement of the payment of, the Loan. To the extent permitted by law, Borrower waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect and agrees that such property may be sold to satisfy any judgment entered on this Note or the Security Documents, in whole or in part, and in any order as may be desired by Lender.
14. Changes. This Note can only be changed by an agreement in writing signed by the Borrower and the Lender.
15. Taxes. Borrower shall pay the cost of any revenue, tax or other stamps now or hereafter required by law at any time affixed to this Note or the Security Documents; and if any taxes shall be imposed with respect to debts secured by the Security Documents or with respect to notes evidencing debts so secured, Borrower agrees to pay or reimburse Lender upon demand the amount of such taxes, and if Borrower fails or refuses or is not legally permitted to do so, Lender may, at its option, accelerate this Note to maturity as in the case of a default by Borrower.
16. Binding on Successors and Assigns. All obligations under this Note are the joint and several unconditional obligations of the Borrower and all who succeed to its rights and interests. Release of any Borrower, any guarantor or any other property or Collateral shall not release any other Borrower, guarantor, property or Collateral from its obligations under the Note. Lender may transfer, assign its rights under this Note upon notice to Borrower.
17. No Waiver by Lender. Lender shall not be deemed to have modified or waived any of its rights or remedies hereunder unless such modification or waiver is in writing and signed by Lender and then only the extent specifically set forth therein. A waiver in any one event shall not be construed as continuing or as a waiver of or bar to the exercise of that right or remedy with respect to any subsequent event or occurrence.
18. Maximum Rate of Interest on Loan. Notwithstanding anything to the contrary contained herein or in any other document executed in connection with the Loan, the effective rate of interest on the Loan shall not exceed the maximum effective rate of interest permitted by applicable law or regulation. The Borrower hereby agrees to give the Lender written notice in the event that Borrower has actual knowledge that an interest payment made to the Lender with respect to this Loan will cause the total interest payments collected in any one year to be usurious under applicable law, and the Lender hereby agrees not to knowingly collect any interest from the Borrower in the form of fees or otherwise which will render this Loan usurious. In the event that such interest would be usurious in the Lender’s opinion, the Lender reserves the right to reduce the interest payable by the Borrower or refund any such interest to the Borrower.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
20. Action. Waiver of Jury Trial; Consent to Jurisdiction and Venue; Consent to Service of Process. Following the occurrence of any Event of Default, the Borrower shall pay upon demand all reasonable costs and expenses (including all amounts paid to attorneys, accountants, real estate brokers and other advisors employed by the Lender), incurred by the Lender in the exercise of any of its rights, remedies or powers under this Note, any of the Loan Documents or with respect to any Collateral with respect to such Event of Default and any amount thereof not paid promptly following demand therefor together with interest thereon at the Default Rate from the date of such demand, shall become part of the Loan and shall be secured by the Deed of Trust and all other Collateral. In connection with and as part of the foregoing, in the event that any of the Loan Documents as defined in the Business Loan Agreement, is placed in the hands of an attorney for the collection of any sum payable thereunder, the Borrower agrees to pay reasonable attorneys’ fees for the collection of the amount being claimed under such Loan Document, as well as all costs, disbursements and allowances provided by law, the payment of which sums shall be secured by the Deed of Trust and all other Collateral.
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THE BORROWER WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS RELATED TO ANY OF THE LOAN DOCUMENTS. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF THEREOF HAS OR HAVE MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED BY BORROWER'S OWN FREE WILL, AND THAT BORROWER HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE BORROWER AGREES THAT THIS IS A BUSINESS LOAN AND THAT THE OBLIGATIONS EVIDENCED BY THIS NOTE ARE EXEMPTED TRANSACTIONS UNDER THE TRUTH-IN-LENDING ACT, 15 U.S.C. SECTION 1601, ET SEQ.
THE BORROWER FURTHER ACKNOWLEDGES THAT BORROWER HAS READ AND UNDERSTANDS THE MEANING OF THIS WAIVER PROVISION.
BORROWER HEREBY CONSENTS TO THE JURISDICTION OF THE PENNSYLVANIA COURT OF COMMON PLEAS, PHILADELPHIA COUNTY OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EASTERN DISTRICT OF PENNSYLVANIA FOR ANY PROCEEDING IN CONNECTION HEREWITH.
BORROWER HEREBY WAIVES OBJECTIONS AS TO VENUE AND CONVENIENCE OF FORUM.
IF LENDER BRINGS ANY ACTION OR SUIT TO ENFORCE ANY OR ALL OF BORROWER'S OBLIGATIONS UNDER THIS NOTE, THE LOAN DOCUMENTS, SERVICE OF PROCESS MAY BE MADE UPON THE BORROWER BY MAILING A COPY OF THE SUMMONS BY PREPAID CERTIFIED FIRST-CLASS MAIL, RETURN RECEIPT REQUESTED, TO THE BORROWER, AND IN SUCH EVENT BORROWER HEREBY WAIVES ANY AND ALL OBJECTIONS TO SUFFICIENCY OF SERVICE OF PROCESS. THE FOREGOING SHALL BE DEEMED INDEPENDENT COVENANTS.
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22. CONFESSION OF JUDGMENT. EACH UNDERSIGNED BORROWER HEREBY GRANTS TO LENDER ALL THE RIGHT TO DECLARE ALL PRINCIPAL, INTEREST AND CHARGES OWED UNDER THIS NOTE TO BE IMMEDIATELY DUE AND PAYABLE, WITHOUT FURTHER ACTION OF ANY KIND ON THE PART OF THE LENDER. IN ADDITION, EACH UNDERSIGNED BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND CONFESS JUDGMENT THEREIN AGAINST IT FOR THE AMOUNT WHICH MAY BE DUE HEREIN AS EVIDENCED BY THE AFFIDAVIT SIGNED BY AN OFFICER OF THE LENDER SETTING FORTH THE AMOUNT THEN DUE, INCLUDING ACCRUED INTEREST, CHARGES, FEES, LATE CHARGES, COSTS, AND ANY AND ALL CHARGES, TAXES, AND LIENS PAID BY LENDER, ITS SUCCESSORS AND ASSIGNS AND IN ANY MANNER AFFECTING OR CHARGEABLE AGAINST THE PREMISES AND IMPROVEMENTS DESCRIBED IN THE DEED OF TRUST PLUS ATTORNEY’S FEES IN THE AMOUNT OF FIFTEEN (15%) PERCENT OF THE AMOUNT DUE, BUT IN NO EVENT LESS THAN FIVE THOUSAND ($5,000.00) DOLLARS, AND ANY AND ALL CHARGES, TAXES, AND LIENS PAID BY LENDER, ITS SUCCESSORS AND ASSIGNS AND IN ANY MANNER AFFECTING OR CHARGEABLE AGAINST THE PREMISES AND IMPROVEMENTS DESCRIBED IN THE DEED OF TRUST TOGETHER WITH COSTS OF SUIT AND RELEASE OF ERRORS. IF A COPY HEREOF, VERIFIED BY AN AFFIDAVIT, SHALL HAVE BEEN FILED IN SAID PROCEEDING, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY. EACH BORROWER WAIVES THE RIGHT TO NOTICE AND A HEARING, ANY STAY OF EXECUTION AND THE BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECT WITH RESPECT IN THE ENTRY OF ANY CONFESSION OF JUDGMENT. FURTHER, EACH UNDERSIGNED BORROWER SPECIFICALLY WAIVES AND DISCLAIMS THE BENEFITS AND PROTECTIONS AFFORDED TO IT AS PRINCIPAL, WITH RESPECT TO THE EXERCISE OF A POWER OF ATTORNEY BY THE AGENT UNDER 20 Pa.C.S.A. §5601.3(b), INCLUDING, BUT NOT LIMITED TO, THE AGENT’S DUTY TO ACT LOYALLY AND IN THE BEST INTERESTS OF THE PRINCIPAL AND TO AVOID CONFLICTS OF INTEREST. NO SINGLE EXERCISE SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE HOLDER HEREOF SHALL ELECT, UNTIL ALL SUMS PAYABLE OR THAT MAY BECOME PAYABLE HEREUNDER BY THE BORROWER HAVE BEEN PAID IN FULL.
23. Rights Cumulative. No right or remedy conferred upon or reserved to the Lender under this Note or any of the Loan Documents, or with respect to any guaranty of payment of the Loan or of performance of any of the Borrower’s obligations under any of the Loan Documents or any collateral securing the payment of the Loan under any of the Loan Documents, now or hereafter existing at law or in equity or by statute or other legislative enactment, is intended to be or shall be deemed exclusive of any other such right or remedy, and each and every such right or remedy shall be cumulative and concurrent, and shall be in addition to every other such right or remedy, and may be pursued singly, concurrently, successively or otherwise, at the sole discretion of the Lender, and shall not be exhausted by any one exercise thereof but may be exercised as often as occasion therefore shall occur. No act of the Lender shall be deemed or construed as an election to proceed under any one such right or remedy to the exclusion of any other such right or remedy; furthermore, each such right or remedy of the Lender shall be separate distinct and cumulative and none shall be given effect to the exclusion of any other. The failure to exercise or delay in exercising any such right or remedy, or the failure to insist upon strict performance of any term of any of the Loan Documents, shall not be construed as a waiver or release of the same, or of any Event of Default thereunder, or of any obligation or liability of the Borrower thereunder. Nothing herein, however, shall be construed to prevent the Lender from waiving any condition, obligation, or default it should so elect. In the event of such election by the Lender, any waiver, in order to be effective, must be in writing and signed by the Lender, and any such waiver shall be strictly limited in its effect to the condition, obligation or default specified therein and shall not extend to any subsequent condition, obligation or default or impair any right of the Lender with respect thereto.
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24. Judgment/Non-Merger. The recovery of any judgment by the Lender and/or the levy of execution under any judgment shall not affect in any manner or to any extent, liens or other security interests in any Collateral, or any rights, remedies or powers of the Lender under any of the Loan Documents or with respect to any Collateral, but such liens and security interests, and such rights, remedies and powers of the Lender shall continue unimpaired as before. Further, the entry of any judgment by the Lender shall not affect in any way the interest rate payable under any of the Loan Documents on any amounts due to the Lender, but interest shall continue to accrue on such amounts at the Default Rate (as defined above).
25. Notices. All notices required hereunder shall be given in accordance with the terms of the Business Loan Agreement.
26. Partial Invalidity, If any term or provision of this Note or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Note or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected there by and each term and provision of this Note shall be valid and be enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Borrower has executed this Commercial Promissory Note on the date first above set forth.
| Attest: | BORROWER: | ||
| Elauwit Connection, Inc. | |||
| /s/ Sean Arnette | By: | /s/ Barry Rubens | |
| Secretary | Barry Rubens, CEO | ||
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ACKNOWLEDGEMENT
| STATE OF | : | ||
| : SS.: | |||
| COUNTY OF | : |
BE IT REMEMBERED that on this ___ day of November, 2024 before me, the subscriber, personally came and appeared, _______________, to me known, who I am satisfied is and who being by me duly sworn did depose and say that he is the President of Elauwit Connection, Inc., and that he executed the foregoing instrument, that he sealed the same and delivered said instrument as the voluntary act and deed of the corporation.
WITNESS my hand and notarial seal the day and year aforesaid.
| My Commission Expires: |
8
DISCLOSURE FOR CONFESSION OF JUDGMENT AND WAIVER OF JURY TRIAL
| Date: | March __, 2025 |
| Undersigned: |
| Lender: | Endurance Financial LLC |
The undersigned has executed, on the date hereof, a certain Business Loan Agreement, evidencing the obligations of Elauwit Connection, Inc. evidenced by a certain Commercial Promissory Note of even date herewith, in favor of Lender, under which Commercial Promissory Note the undersigned is obligated to repay monies to Lender.
A. THE UNDERSIGNED ACKNOWLEDGES AND AGREES THAT THE COMMERCIAL PROMISSORY NOTE CONTAINS PROVISIONS UNDER WHICH LENDER MAY ENTER JUDGMENT BY CONFESSION AGAINST THE UNDERSIGNED. IN ADDITION, THE COMMERCIAL PROMISSORY NOTE CONTAINS PROVISIONS WAIVING THE UNDERSIGNED’S RIGHT TO A JURY TRIAL. BEING FULLY AWARE OF ITS RIGHTS TO PRIOR NOTICE AND A HEARING ON THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT MAY BE ASSERTED AGAINST IT BY LENDER THEREUNDER BEFORE JUDGMENT IS ENTERED, THE UNDERSIGNED HEREBY FREELY, KNOWINGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO LENDER’S ENTERING JUDGMENT AGAINST IT BY CONFESSION PURSUANT TO THE TERMS THEREOF.
B. The undersigned certifies that a representative of Lender specifically called the confession of judgment and waiver of jury trial provisions in the Commercial Promissory Note to the attention of the undersigned, and/or that the undersigned was represented by legal counsel in connection therewith.
The undersigned hereby certifies that: (i) its annual income exceeds $10,000.00; (ii) all references to "the undersigned" above refers to all persons and entities signing below; and (iii) the undersigned received a copy hereof at the time of signing.
BORROWER:
Elauwit Connection, Inc.
| By: | ||
| Barry Rubens, CEO |
| Attest: | ||
| By: | ||
| Secretary |
9
Exhibit 10.21
NOTE AND LOAN EXTENSION AND MODIFICATION AGREEMENT
THIS NOTE AND LOAN EXTENSION AND MODIFICATION AGREEMENT, ("Modification Agreement") is made on July 7, 2025, by and between ELAUWIT CONNECTION, INC., a Delaware corporation, having an address at 1520 Locust Street, Philadelphia, Pennsylvania 19102 ("Borrower"), and ENDURANCE FINANCIAL, LLC, a Wyoming limited liability company, having an address at 1621 Central Avenue, Cheyenne, Wyoming 82001 ("Lender").
WITNESSETH:
WHEREAS, on March 25, 2025, Borrower and Lender entered into a Business Laon Agreement and Commercial Promissory Note evidencing a business loan in the principal amount of Five Hundred Thousand and 00/100 ($500,000.00) Dollars (the "Note" and/or "Loan"); and
WHEREAS, the Borrower has requested that the Lender modify the Note and Loan to which the Lender has agreed subject to the terms and conditions as hereinafter provided.
NOW, THEREFORE, for and in consideration of the promises (which are deemed herein contained) and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Lender and Borrower agree as follows:
1. ACKNOWLEDGMENT OF NO-DEFAULT.
The Lender and acknowledges that there exists no Event of Default on the part of Borrower under the Note.
2. MODIFICATION OF NOTE AND LOAN.
The Note and Loan are hereby amended and modified as follows:
Term and Maturity Date. The term of the Note and Loan is hereby extended for a term of ninety (90) days until September 25, 2025 (the "Maturity Date") when of all remaining principal and accrued interest and all other sums owing under the Note and Loan shall be due and payable in full.
3. CONTINUED VALIDITY OF ORIGINAL LOAN DOCUMENTATION.
Except as otherwise provided herein, the Business Loan Agreement, Commercial Promissory Note and all other documents executed in connection with the Loan (the "Loan Documents") shall continue in full force and effect, in accordance with their respective terms, and the parties hereto hereby expressly ratify, confirm and reaffirm all of their respective liabilities, obligations, duties and responsibilities under and pursuant to the Loan Documents, as modified by this Modification Agreement.
4. MODIFICATION AGREEMENT CONTROLS.
In the event of a conflict between the terms and conditions of this Modification Agreement and the terms and conditions of the Note and/or Business Loan Agreement, the terms and conditions of this Modification Agreement shall control.
IN WITNESS WHEREOF, the parties have executed this Modification Agreement as of the date first above written.
| BORROWER: | ||
| ELAUWIT CONNECTION, LLC | ||
| By: | /s/ Barry Rubens | |
| Barry Rubens, Chief Executive Officer | ||
| LENDER: | ||
| ENDURANCE FINANCIAL, LLC | ||
| By: | /s/ Glenn Joesphs | |
| Glenn Josephs, Authorized Member | ||
Exhibit 10.22
PUT-CALL AGREEMENT
This Put-Call Agreement (this "Agreement") is entered into on August 20, 2024 by and between ELAUWIT CONNECTION, INC., a Delaware corporation ("Elauwit"), BARON HUNTER GROUP, LLC, a Wyoming limited liability company ("Baron Hunter"), and STEELE CREEK PARTNERS, LLC, a Wyoming limited liability company ("Steele Creek").
WHEREAS, Elauwit, formerly known as DeltaMax, Inc., is the surviving corporation following a merger between DeltaMax and the former Elauwit Connection, Inc., pursuant to which the surviving corporation was renamed Elauwit Connection, Inc.; and
WHEREAS, Baron Hunter and Steele Creek are the founding entities of the former Elauwit Connection, Inc.; and
WHEREAS, Elauwit intends to complete and initial public offering of its capital stock (the "IPO") and desires to grant Baron Hunter and Steele Creek certain put and call rights in connection with the IPO.
NOW, THEREFORE, in consideration of the premises and the respective representations, warranties, covenants and agreements set forth in this Agreement, Elauwit, Baron Hunter and Steele Creek agree as follows:
1. Put Option. Baron Hunter and Steele Creek are each granted the right to sell to Elauwit (Put Option) up to a $2,000,000 value of common shares of Elauwit at a discount of 10% below the IPO issue price limited to the lesser of $2,000,000 or 10% of the IPO gross offering proceeds. The Put Option shall be exercisable for a period of ten (10) business days following the effective date of the IPO by delivering written notice thereof by either or both of Baron Hunter or Steele Creek to Elauwit prior to expiration of the exercise period. The sale transaction shall take place with ten (10) business days following receipt of notice. In the event the Put Option is not exercised within the exercise period, the Put Option shall be null and void and of no further effect.
2. Call Option. Elauwit is granted the right to purchase (Call Option) up to a maximum of $2,000,000 value of common shares from each of Baron Hunter and Steele Creek at a premium of 10% in excess of the IPO issue price limited to the lesser of $2,000,000 or 10% of the IPO gross offering proceeds. The Call Option shall be exercisable by majority vote of disinterested directors, for a period of ten (10) business days following the effective date of the IPO. The Call Option shall be exercised by delivering written notice thereof by Elauwit to either or both of Baron Hunter or Steele Creek prior to expiration of the exercise period. The purchase transaction shall take place with ten (10) business days following receipt of notice. In the event the Call Option is not exercised within the exercise period, the Call Option shall be null and void and of no further effect.
3. Amendment. No amendment to this Agreement shall be effective unless it has been executed in writing by Elauwit, Baron Hunter and Steele Creek respectively, and no waiver of any provision of this Agreement shall be effective unless it has been executed in writing by the Party giving such waiver.
4. Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by the Parties (whether by operation of Law or otherwise) without the prior written consent of the other Party.
5. Entire Agreement. This Agreement, together with the Exhibits attached hereto, contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all other prior discussions and agreements.
6. Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware and specifically the Delaware general Corporation Law, without giving effect to any choice or conflict of law provision.
7. Severability. If any term or other provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced, all other provisions of this Agreement shall nevertheless remain in full force and effect.
8. Counterparts. This Agreement may be signed electronically and in any number of counterparts, each of which shall be deemed to be an original, with the same effect as if the signatures on each counterpart were upon the same instrument. This Agreement may be executed by facsimile or portable document format (PDF) and any signature delivered by facsimile or PDF shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Put-Call Agreement intending to be legally bound thereby, as of the date first written above.
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Barry Rubens | |
| Barry Rubens, CEO | ||
| BARON HUNTER GROUP, LLC | ||
| By: | /s/ Daniel McDonough, Jr. | |
| Daniel McDonough, Jr., Manager | ||
| STEELE CREEK PARTNERS, LLC | ||
| By: | /s/ Barry Rubens | |
| Barry Rubens, Manager | ||
Exhibit 10.23
AMENDMENT TO
PUT-CALL AGREEMENT
THIS AMENDMENT TO PUT-CALL AGREEMENT (this “Amendment”), dated as of August 11, 2025 (the “Effective Date”), is made by and between Elauwit Connection, Inc., a Delaware corporation (the “Company”), Baron Hunter Group, LLC, a Wyoming limited liability company (“Baron Hunter”), and Steele Creek Partners, LLC, a Wyoming limited liability company (“Steele Creek”).
WITNESSETH
WHEREAS, the Company, Baron Hunter and Steele Creek entered into that certain Put- Call Agreement (the “Agreement”) on August 20, 2024 to grant the Company certain call rights and Baron Hunter and Steele Creek certain put rights in connection with the Company’s initial public offering (the “IPO”); and
WHEREAS, in furtherance of the IPO, the Company, Baron Hunter and Steele Creek desire to amend the terms of the Agreement to reduce the put and call rights.
NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Company, Baron Hunter and Steele Creek agree as follows:
| 1. | Amendments. |
(a) Section 1 of the Agreement is hereby amended by replacing the first sentence in Section 1 with the following:
“Baron Hunter and Steele Creek are each granted the right to sell to Elauwit
(Put Option) up to a $1,000,000 value of common shares of Elauwit at a discount of 10% below the IPO issue price.”
(b) Section 2 of the Agreement is hereby amended by replacing the first sentence in Section 2 with the following:
“Elauwit is granted the right to purchase (Call Option) up to a maximum of $1,000,000 value of common shares from each of Baron Hunter and Steele Creek at a premium of 10% in excess of the IPO issue price.”
2. Effect of Amendment. This Amendment amends the terms of the Agreement. Except as specifically amended herein, the terms of the Agreement shall remain in full force and effect.
3. Miscellaneous. This Amendment may be executed in counterparts and exchanged between the parties electronically, each of which shall be deemed an original and binding to the same extent as a handwritten signature, and together shall constitute one and the same agreement.
[Signature Page follows]
IN WITNESS WHEREOF, the Company, Baron Hunter and Steele Creek have executed this Amendment as of the Effective Date.
| THE COMPANY | ||
| ELAUWIT CONNECTION, INC. | ||
| By: | /s/ Taylor Jones | |
| Name: | Taylor Jones | |
| Title: | President and Chief Technology Officer | |
| BARON HUNTER GROUP, LLC | ||
| By: | /s/ Daniel McDonough,Jr. | |
| Name: | Daniel McDonough, Jr. | |
| Title: | Manager | |
| STEELE CREEK PARTNERS, LLC | ||
| By: | /s/ Barry Rubens | |
| Name: | Barry Rubens | |
| Title: | Manager | |
[Signature Page to Amendment to Put-Call Agreement]
Exhibit 10.24
TRADENAME LICENSE AGREEMENT
THIS TRADENAME LICENSE AGREEMENT (‶Agreement‶) is entered into on August 20, 2024 (the ‶Effective Date‶), by and between Daniel McDonough, Jr., (‶Licensor‶) and Elauwit Connection, Inc., (‶Licensee‶).
WHEREAS, Licensor is the owner of the tradename "Elauwit" registered with the U.S. Patent and Trademark Office under Registration Number 5240877; and
WHEREAS, Licensee is in the business of providing connectivity and internet services to multi-unit residential and commercial properties (the ‶Business‶); and
WHEREAS, Licensee desires to use the tradename, service marks and domain names owned by Licensor and the goodwill associated therewith (the ‶Licensed Marks‶) in connection with its business; and
WHEREAS, Licensor has agreed to grant Licensee an exclusive license to use the Licensed Marks solely in Licensee’s Business on the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the mutual promises and obligations as provided herein, and other good and valuable consideration, Licensor and Licensee agree as follows:
1. Grant of License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee an exclusive right and license to use the Licensed Marks solely in connection with its Business. Licensee shall not use the Licensed Marks in connection with any other business or endeavor without the express written consent of Licensor.
2. License Fee. As consideration for the License granted herein, Licensee shall pay Licensor a one-time fee of Fifty Thousand and 00/100 ($50,000.00) Dollars upon execution of this Agreement.
3. Term. The term of this Agreement shall continue for as long as Licensee shall operate its Business. In the event of the merger, stock sale, asset sale or other change of control of the Licensee’s Business, this Agreement shall immediately terminate.
4. Use of Licensed Mark. Licensee shall use the Licensed Marks in accordance with sound trademark and tradename usage principles and shall not use the Licensed marks in any manner which would tarnish, dilute, disparage, or reflect adversely on Licensor, the Licensed Marks or the goodwill associated therewith.
5. Property of Licensor. Licensee acknowledges that the Licensed Marks and all rights therein (with the exception of those rights expressly granted to Licensee hereunder), and the goodwill pertaining thereto belong exclusively to Licensor. Licensee’s use of the Licensed Marks shall inure to the benefit of Licensor for all purposes, including without limitation and rights with respect to trademark registrations. Licensee shall not (i) register or attempt to register the Licensed Marks or any confusingly similar tradename, trademark, service mark or domain name in its own name or any other name, or (ii) use the Licensed Marks other than in connection with its Business.
6. Termination. In the event of a material breach of the terms of this Agreement by Licensee, Licensor may terminate this Agreement by providing Licensee with thirty (30) days written notice and opportunity to cure such breach.
7. Defense of Licensed Marks. Each party shall promptly notify the other of any infringement or other violation of or challenge to the Licensed Marks by any third party of which it becomes aware. Licensor shall have the sole right, but not the obligation, to initiate a lawsuit or take other action in Licensor’s sole discretion against uses by third parties that may constitute infringement or other violation of Licensor’s rights in and to the Licensed Marks, including directing and controlling any such litigation or course of action and the settlement thereof.
8. Indemnification. Licensee agrees to indemnify and hold Licensor and its employees and agents, harmless against any liability, losses, damages, penalties, claims, actions, suits, judgments or settlements of any nature or kind (including reasonable costs of investigation, reasonable attorney, accountant and expert witness fees), incurred by Licensor by reason of Licensee’s use of the Licensed Marks.
9. Notices. Notices given under this Agreement shall be in writing and delivered by first class, certified U.S. Mail or FedEx to each signatory at the address set forth below unless changed by written notice. Notices to Licensor shall be sent to: 1520 Locust Street, Suite 901, Philadelphia, Pennsylvania 19102. Notices to Licensee shall be sent to: 300 Park Avenue, 16th Floor, New York, New York 10022.
10. Assignment. Licensee may not assign this Agreement or the license granted herein without the express written consent of the Licensor.
11. Authority. Each party executing this Agreement warrants and represents that it is fully authorized to undertake the obligations set forth in this Agreement on behalf of itself and where applicable, on behalf of its affiliates and affiliate Owners.
12. Miscellaneous. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. If any provision hereof shall be held to be unenforceable such provision shall be reformed to such extent necessary to allow it to be deemed enforceable. If such reform is not possible then such provision shall be deemed severed from this Agreement and, in either case, the remainder shall remain in full force and effect. The provisions of this Agreement shall be binding upon each party’s successors and assigns and shall be governed by and in accordance with the laws of the State of Delaware without regard to its conflict of law’s provisions. The parties may execute numerous copies and/or multiple counterparts of this Agreement. In such case, each such executed copy and/or all counterparts shall have the full force and effect of an original executed instrument. This Agreement may be amended or modified only in a writing signed by both of the parties hereto, which specifically references this Agreement. In the event any dispute arises under this Agreement and litigation or arbitration proceedings are commenced, the prevailing party shall be entitled to recover from the other party all costs and expenses incurred in connection with such proceedings, including, but not limited to, reasonable attorney’s fees and costs. The parties mutually waive the right to require a trial by jury.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement intending to be legally bound thereby as of the date first written above.
| LICENSOR | LICENSEE | ||
| ELAUWIT CONNECTION, INC. | |||
| /s/ Daniel McDonough | By: | /s/ Barry Rubens | |
| Daniel McDonough, Jr. | Barry Rubens, CEO |
Exhibit 16.1
August 29, 2025
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549-7561
Dear Sirs:
We have read the statements made by Elauwit Connection, Inc. in the Registration Statement on Form S-1, and are in agreement with the statements contained therein concerning our firm in response to Item 304(a) of Regulation S-K.
Sincerely,
/s/ Freed Maxick P.C.
Freed Maxick P.C.
Buffalo, New York
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Registration Statement (No. 333-____) on Form S-1 of Elauwit Connection, Inc. of our report dated April 7, 2025, which includes an explanatory paragraph as to Elauwit Connection, Inc.’s ability to continue as a going concern, relating to the consolidated financial statements of Elauwit Connection, Inc. as of and for the years ended December 31, 2024 and 2023, appearing in the Prospectus, which is part of this Registration Statement.
We also consent to the reference to our firm under the heading "Experts" in such Prospectus.
/s/ Freed Maxick P.C.
Buffalo, New York
August 29, 2025
1