As filed with the Securities and Exchange Commission on April 10, 2026.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HawkEye 360, Inc.
(Exact name of Registrant as specified in its charter)
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| Delaware | 7374 | 47-5078666 |
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification No.) |
450 Springpark Place, Suite 500
Herndon, Virginia 20170
(571) 203-0360
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
John Serafini
President and Chief Executive Officer
HawkEye 360, Inc.
450 Springpark Place, Suite 500
Herndon, Virginia 20170
(571) 203-0360
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Dave Peinsipp Charles S. Kim Mark Ballantyne Katherine Denby Cooley LLP 3 Embarcadero Center, 20th Floor San Francisco, California 94111 (415) 693-2000 | Michael S. Turner HawkEye 360, Inc. 450 Springpark Place, Suite 500 Herndon, Virginia 20170 (571) 203-0360 | Michael Kaplan Roshni Banker Cariello Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017 (212) 450-4000 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement is declared effective.
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. ☐
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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.
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| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| Non-accelerated filer | ☒ | Smaller reporting company | ☐ |
| | Emerging growth company | ☒ |
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 preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion, dated , 2026
Preliminary Prospectus
Shares
Common Stock
This is the initial public offering of shares of common stock of HawkEye 360, Inc. We are offering shares of our common stock.
Prior to this offering, there has been no public market for our common stock. It is currently estimated that the initial public offering price per share will be between $ and $ . We intend to apply for listing of our common stock on the New York Stock Exchange under the symbol “HAWK.” We believe that upon the completion of this offering, we will meet the standards for listing on the New York Stock Exchange, and the closing of this offering is contingent upon such listing.
We are an “emerging growth company” as defined under federal securities laws, and, as such, will be subject to reduced public company reporting requirements for this prospectus and future filings. See the sections titled “Risk Factors” and “Prospectus Summary—Implications of Being an Emerging Growth Company.” We will make an election to be treated as a public benefit corporation under Delaware law, to be effective upon the completion of this offering. As a public benefit corporation, we will be required to balance the financial interests of our stockholders, the best interests of those stakeholders materially affected by our conduct, and the specific public benefit of preserving the safety, security, and resilience of the American people and our allies that is set forth in our certificate of incorporation. Accordingly, our duty to balance a variety of interests may result in actions that do not maximize stockholder value. See the section titled “Prospectus Summary—Public Benefit Corporation Status.” Investing in our common stock involves risks. See the section titled “Risk Factors” beginning on page 31 to read about factors you should consider before buying shares of our common stock. 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.
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| Per Share | | Total |
Initial public offering price | $ | | $ |
Underwriting discounts and commissions (1) | $ | | $ |
Proceeds, before expenses, to us | $ | | $ |
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(1)We refer you to “Underwriting” for additional information regarding underwriting compensation. We have granted the underwriters an option for a period of 30 days to purchase up to an additional shares of our common stock.
At our request, the underwriters have reserved up to shares of our common stock, or % of the shares offered by this prospectus (excluding the additional shares that the underwriters have an option to purchase), for sale at the initial public offering price through a directed share program to certain of our directors, officers, employees and others. See the section entitled “Underwriting—Directed Share Program” for additional information. The underwriters expect to deliver the shares of common stock against payment in New York, New York on or about , 2026.
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Goldman Sachs & Co. LLC* | | Morgan Stanley* |
*(listed in alphabetical order)
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RBC Capital Markets | Jefferies | BofA Securities |
Baird | Raymond James | William Blair |
Co-Manager
Prospectus dated , 2026
TABLE OF CONTENTS
Through and including (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 is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.
Neither we nor the underwriters have authorized anyone to provide any information or to make any representations other than those contained in this prospectus or in any free writing prospectuses we have prepared. We and the underwriters take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may provide you. We are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of the common stock.
For investors outside of the United States: We have not, and the underwriters have not, 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 the United States. Persons outside of the United States who come into possession of this prospectus must inform themselves about, and observe any restrictions relating to, the offering of the shares of common stock and the distribution of this prospectus outside of the United States.
PROSPECTUS SUMMARY
This summary highlights, and is qualified in its entirety by, information contained elsewhere in this prospectus. This summary does not contain all of the information you should consider before investing in our common stock. Before making an investment decision, you should read this entire prospectus carefully, especially the sections titled “Risk Factors,” “Special Note Regarding Forward-Looking Statements,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Unaudited Pro Forma Consolidated Financial Information” and our financial statements and the related notes appearing elsewhere in this prospectus. As used in this prospectus, unless the context otherwise requires, references to “we,” “us,” “our,” “the Company,” “HawkEye” and “HawkEye 360” refer to HawkEye 360, Inc. and, where appropriate, our subsidiaries.
Our Company
Our Mission
HawkEye 360 is a trusted signals intelligence (“SIGINT”) partner of the United States and its allies, committed to advancing national interests through the use of our innovative technology. Our mission is to provide actionable, trusted, and valuable signals intelligence to the U.S. Government and allied customers.
•We make the world safer and more secure by providing mission-critical capabilities for defense and intelligence applications.
•We identify and comprehend highly complex signals intelligence.
•We apply our technology advantage to protect, preserve, and defend the national interests of the United States and its allies.
Our values are deeply embedded in service and leadership, guiding our efforts to support critical intelligence, defense, and security initiatives across the world. We are privileged to serve our nation, our allies, and our shared humanity.
Who We Are
HawkEye 360 provides secure end-to-end signals solutions which are tightly integrated into the fabric of national security architectures. As a trusted signals intelligence partner to the U.S. Government and its allies, we are the first commercial space-enabled defense technology company to disrupt electronic warfare at scale. We deliver shareable, battlefield-proven radio frequency (“RF”) intelligence that supports Warfighters during varied cycles of geopolitical volatility. We operate across the entire value chain from design and build, to data collection, to processing and analysis, delivering capabilities and insights to customers throughout our global allied defense landscape.
Where We Started
HawkEye 360 was founded in 2015 by a team of military veterans, engineers, and national security technologists. From our beginning, we have disrupted the SIGINT market that had historically been served by traditional defense providers. We identified a critical gap in unclassified RF signals intelligence across the U.S. Government and allied nations. We then developed advanced processing capabilities and an extensive space-based RF database to deliver actionable SIGINT insights to address this gap. RF signals intelligence had historically been limited to state actors until we built upon the structural tailwinds of more accessible satellite launch, satellite miniaturization, and cloud computing power to create an end-to-end unclassified analytics capability. We created a proprietary data collection system leveraging small-satellite technology to provide unprecedented commercial access to RF signal data from on-orbit sensors, delivering a new form of unclassified intelligence that was previously unavailable. In parallel, we built a signals processing platform with proprietary algorithms using our unclassified collected data to power our differentiated processing and analytics capabilities. We are continuously evolving and adding disruptive,
new capabilities – through launching additional satellites, developing new and increasingly sophisticated sensors, expanding our RF emitter database, optimizing our analytics and insights, and perfecting increasingly mission-specific algorithms in our constant effort to provide the most possible value to our customers.
ISA Acquisition
In December 2025, we completed our acquisition of Innovative Signal Analysis, Inc. (“ISA”). This acquisition enhances our existing offerings by providing critical signal processing technologies, including detection and classification across multiple domains, such as air, land, and maritime domains, while gaining access to classified architecture, thereby strengthening our relationship with the U.S. Government and the U.S. intelligence community. This acquisition allows us to combine our unclassified satellite collectors with highly trusted classified algorithms, unlocking a larger national security augmentation market. Additionally, unclassified ISA algorithms and expertise enhance our signal processing platform, allowing us to offer improved, automated capabilities to an expanded set of U.S. Government and international customers.
HawkEye 360 Today
We are disrupting the defense technology industry through our transformational strategy focused on new on-orbit capabilities, signal processing enhancements, and optimization of our artificial intelligence/machine learning (“AI/ML”) analytics algorithms using our expansive RF emitter database. Our algorithms are designed, improved, and validated on over one billion data points from our proprietary signals archive, uniquely collected by our sensor network. With over 30 satellites on orbit and additional clusters in development, we maintain a robust global operational footprint and are committed to expanding our reach, improving our revisit rate and latency, and accelerating product delivery to our customers. We are a key provider to the U.S. Government of signal processing algorithms, customized hardware, and commercial SIGINT data and information. We operate across classified and unclassified data, leveraging relationships with the U.S. Department of War (the “DoW”) and the U.S. intelligence community and the international equivalents of our allies around the globe.
Our Total Addressable Market
Our total addressable market (“TAM”) today consists of the global RF spectrum exploitation market. We estimate that this TAM represents an approximately $24 billion opportunity as of October 2025, according to a study we commissioned by Renaissance Strategic Advisors (the “Renaissance Study”). This market encompasses collection systems and associated processing and analysis services. This includes sensors, payloads, algorithms, and services that support data collection. We expect our TAM to reach approximately $34 billion by 2030, driven by the expansion in the number of sensors across domains, growth in support services, and increasing government demand for contractor-sourced RF data. Our TAM is comprised of U.S. and allied international government markets and does not yet include commercial opportunities. Our business has significant product offerings for selling to these customers. We are scaling our capabilities to capture a larger share of this rapidly growing market.
The Problem We Address
We operate in an unprecedented and increasingly unstable environment that demands an active intelligence and defense posture. Even during periods of peace, the need for ongoing surveillance of borders, maritime environments, and the aerial domain, as well as ensuring compliance with treaty provisions, drives strong demand growth for our offerings. Our customers face ongoing adversarial threats in active conflicts and require real-time situational awareness across the signal spectrum. Customers increasingly demand rapid, actionable data, edge autonomy, and cost-effective mission solutions. Traditional defense contractors have been unable to meet these rapidly evolving technological needs. Meanwhile, governments are accelerating investment in defense capabilities to address geopolitical uncertainty and to satisfy ever growing needs for valuable and timely intelligence. As a result,
the defense and intelligence communities are increasingly turning to commercial vendors such as HawkEye 360 to fulfill these needs.
What We Do
HawkEye 360 delivers a variety of tailored SIGINT capabilities across the value chain with direct integration into national security architectures for U.S. and allied governments. We developed a fully integrated RF data platform encompassing collection, end-to-end signal processing, signals library, and proprietary analytics. Our data and unclassified algorithms flow into U.S. and allied collection systems, while our classified algorithms are trusted and integrated within many U.S. SIGINT programs. As a result, we believe we are indispensable to national security architectures across the value chain. Through our partnerships, we bring decades of DoW relationships and multi-domain expertise across space, airborne, maritime, and terrestrial systems.
We are trusted to deliver mission-ready capabilities and insights to support strategic decision-making, situational awareness, and operational effectiveness across a wide range of mission needs. We fill intelligence gaps for our customers while building out their national SIGINT capabilities through training, analytics, dedicated hardware development, and customized intelligence platforms. Examples of these solutions include:
•Customized SIGINT solutions including hardware, algorithms, and software capabilities;
•Monitoring maritime activity in a customer’s regional domain;
•Tracking military radar and air defense systems;
•Tracking extremist group communications, movement, and activity;
•Maintaining border security and providing tactical Intelligence Surveillance and Reconnaissance (“ISR”) on battlefield environments;
•Ensuring navigational integrity of global navigation satellite systems (“GNSS”); and
•Core signal processing algorithms used in national government SIGINT systems.
Our offerings range from operational deployment in Ukraine to global positioning system (“GPS”) disruption monitoring in the Middle East and integration within critical classified U.S. Government processing chains. Our acquisition of ISA further enhances these offerings through critical signal processing technologies, including detection and classification across multiple domains, expanded ground processing, and trusted classified and unclassified algorithm expertise, strengthening our ability to deliver integrated SIGINT solutions across both classified and unclassified environments. These solutions are deployed in high-stakes environments where mission success, precision, technical excellence, reliability, and intelligence superiority are paramount to our customers.
Our Technology Advantage
Our vertically integrated technology stack powers the HawkEye 360 signal processing ecosystem, enabling continuous evolution and transformation to meet emerging defense and intelligence needs. We refer to this technology as the HawkEye 360 Signal Processing Platform, which can ingest data from multiple collectors, route to the appropriate foundational signal processing algorithms, and fold in high-order analytics functions per customer demand.
•Collection: We design, manufacture, own, and operate a global constellation of over 30 satellites that collect data in proprietary formations of three satellites, with broad coverage from 30 megahertz (“MHz”) to 18 gigahertz (“GHz”) and a revisit rate of less than 45 minutes globally.
•End-to-End Signal Processing: We use proprietary signal processing algorithms to detect and characterize a wide set of emitter types, including radars, jammers, beacons, and mobile radio devices. Our algorithms are used to process classified data for the U.S. Government, and separately, unclassified data within our own system. Our advantage comes from our processing and geolocation intellectual property and our unique data platform, as well as decades of operating within U.S. Government systems.
•Proprietary Analytics and Insights: Our analytics and insights capabilities operate on the outputs of our signals processing algorithms. We employ our proprietary AI-enabled algorithms to identify, track, analyze, and predict specific emitters, converting data into insights for our intelligence partners. Our insights identify patterns of life, classify and identify emitters, predict activity, detect threats, and enhance situational awareness. Our unclassified data analysis promotes greater accessibility for the United States and its allies, while our classified capabilities serve to further entrench us with our intelligence customers.
Our First-Mover Advantage
The HawkEye 360 Signal Processing Platform is built on highly complex proprietary signals algorithms, designed by signal processing experts, supported by our constellation of over 30 satellites on orbit, and developed on more than a decade of research and development (“R&D”) and capital investment. As a result, we believe our platform has collection scale, latency, geolocation accuracy, revisit rates, and technical optimization that would take years for a competitor to replicate.
Furthermore, our RF emitter database and collection data archive are built on years of contested-environment data collection and a mature processing pipeline, making it difficult for a competitor to replicate our data advantage. This data and technology feeds into our AI/ML models to create unique emitter identification, pattern of life analysis, and other insights. We believe our strength in this area, combined with our ability to fuse data from multiple sources and platforms, makes us less vulnerable to becoming commoditized, especially in comparison to other space-based intelligence collecting satellite constellations, such as electro-optical and synthetic aperture radar imagery. In addition, we are vertically integrated in our customers’ value chains, allowing us to serve customers across all their needs (e.g., specialized algorithm development or end-product analyses).
Operationally, we have recruited engineers with prior experience in premier government and defense industrial base signal processing environments, and nearly half of our personnel hold security clearances. We deploy our own capital at risk, and our nimble business model allows us to move quickly, building out capacity ahead of customer demand. We have been purpose built from inception to serve the U.S. Government and its allies, with whom we have built trusted relationships over the past decade. As a result, we have built sales infrastructure, product orientation, and program management support to serve our customers.
Serving Our Customers
We serve the world’s most demanding customers, addressing their highest-priority defense needs with precision, trustworthiness, and agility. Our customers are a diverse mix of U.S. Government defense, intelligence, and national security agencies, as well as allied international governments. For the year ended December 31, 2025, our U.S. customers, which are predominantly U.S. Government entities, accounted for 61% of our revenue, while our customers in Japan accounted for 16% of our revenue and our other non-U.S. customers, in the aggregate, accounted for 23% of our revenue. We also engage in selective minor commercial applications focused on maritime safety, security, and communications regulations compliance, although we have specifically chosen to focus initially on government centric customers and missions. Our unclassified and shareable data model enables extended use cases for end customers, enhancing interoperability and mission effectiveness.
Financial Highlights
We have demonstrated strong financial performance and scalable growth. We are focused on profitability, productivity, and return on invested capital. Our funded backlog of $302.7 million as of December 31, 2025 supports predictable revenue expansion through a recurring model. Our net income was $2.7 million and our adjusted EBITDA was $24.8 million for the year ended December 31, 2025.
We intend to continue enhancing our margins and capital efficiency. Data reusability, multi-signal capabilities, and diversification of our product offerings allow us to improve our margins by leveraging our existing fixed cost base for greater output. We make strategic investments in R&D, engineering talent, satellite infrastructure, and future capacity, investing in new capabilities while optimizing our current offerings. As the business scales, our existing fixed costs and capital investments support greater revenue generation.
Our Market Opportunity
We operate primarily in the defense technology market. Increasing global tensions and geopolitical uncertainty have heightened demand for advanced technologies to counter near-peer and asymmetric threats. In the United States, bipartisan support for robust defense spending remains evident, together with a clear policy emphasis on leveraging commercial technologies, with the DoW budget expected to reach approximately $960 billion in fiscal year 2026, compared to approximately $860 billion in fiscal year 2025, according to the Office of the Under Secretary of Defense. This shift toward defense technology is structural in both peacetime and conflict, as reliable intelligence is mission-critical for monitoring ceasefires and enforcing compliance with international law.
Outside the United States, governments are also investing heavily in sovereign defense capabilities to address regional threats, with Europe and APAC leading growth. Following an extended period of underinvestment, European North Atlantic Treaty Organization (“NATO”) defense budgets increased from $279 billion in 2019 to $564 billion in 2025, representing a compound annual growth rate (“CAGR”) of over 10%. Growth in European NATO defense spending is expected to continue, underpinned by the recent commitment of NATO members to spend 5% of GDP on defense, a significant increase from the average European defense spending level of 2% of GDP over the last three years. In response to military encroachment from China, defense spending by U.S. allies in APAC rose from $255 billion to over $307 billion during the same period.
Historical Applications of RF
RF has a long legacy in modern warfare, evolving from a basic communication platform to a critical enabler of sensing, navigation, intelligence, and coordination on the battlefield. Early examples include utilization of radio in World War II mechanized mobile divisions and radar systems that helped secure air superiority. Later in the century, GPS revolutionized maneuverability and targeting as exemplified in the First Gulf War, while airborne RF jammers tracked and disabled adversary radars. Today, massive amounts of battlefield data are available, creating the need for seamless coordination across ground/naval/aerial/space forces, drones, and platforms. As a result, RF is more integral than ever. RF sensing provides persistent, wide-area coverage that remains effective in conditions where optical sensors often fail, including mountainous terrain, poor weather, and darkness. RF signals are more difficult to mask, and serve as the best proxy for human activity, applicable beyond defense applications, including for economic activity, law enforcement, and sustainability applications, such as identifying illegal fishing or illicit mining. RF enables sensing, positioning, navigation, and timing, dramatically increasing the volume and precision of defense intelligence.
RF Utilization Across Domains
Today, global government spectrum exploitation is split among four domains – terrestrial, maritime, air, and space. Recent initiatives, such as the Golden Dome for America (the “Golden Dome”), aim to create a next-generation, layered missile defense shield for the U.S. homeland, integrating all four domain
systems into a unified architecture at an estimated cost of up to $3.6 trillion over its lifetime. Current global spending in the terrestrial domain remains the largest portion of global spending, totaling $8.9 billion from January 2025 to October 2025, according to the Renaissance Study, driven by the need to monitor continental activity. Global spending in the maritime domain was $1.5 billion from January 2025 to October 2025, according to the Renaissance Study, to effectuate the need to locate vessels in the wide ocean expanse and conduct signals intelligence offshore. Global spending in the air domain was $6.6 billion from January 2025 to October 2025, according to the Renaissance Study, primarily for intelligence collection in international airspace.
Space is widely regarded by national security experts as the most essential warfighting domain in modern warfare, with the United States framing orbital supremacy as a geopolitical imperative. Utilizing this critical domain requires space-based RF expertise to ensure the detection, characterization, and geolocation of RF emissions globally. The RF space domain ascends beyond the ground, maritime, and air domains to deliver a persistent global vantage point accessed on orbit far above national borders and territorial airspace and waters, unlocking capabilities that redefine defense intelligence. Space-based RF delivers resilient, wide-area global coverage at scale, enabling missile launch detection, air defense mapping, and orbital object tracking with insulation from adversarial threats. In an era of electronic warfare and contested environments, resilience, and precision are mission critical. As space infrastructure continues to expand, it naturally enables economies of scale. From January 2025 to October 2025, government spending on spectrum exploitation in the space domain has surged to $7.3 billion, according to the Renaissance Study.
Today’s Strategic Necessity for SIGINT
Geopolitical volatility and electronic warfare trends such as drone proliferation, widespread jamming, spoofing, and GPS interference are driving urgent demand for advanced RF intelligence and space-based SIGINT capabilities. Assured ability to communicate and synchronize people, sensors, and strategies across domains is critical. Drone proliferation amplifies the need for robust command and control, spanning secure communications, real-time data sharing, and decision-making to ensure forces can act cohesively across domains. Preserving this command-and-control advantage requires maintaining access to and denying adversaries use of the electromagnetic spectrum.
U.S. Government agencies and combatant commands are already procuring commercial solutions, while international interest is accelerating across NATO, Eastern Europe, the Middle East, and the Indo-Pacific. Recent U.S. bipartisan policy actions signal a transformative moment for defense technology such as the Standardizing Permitting and Expediting Economic Development Act (“SPEED Act”) and the Fostering Reform and Government Efficiency in Defense Act (“FoRGED Act”), which incentivize rapid integration of commercial innovations into national security programs. These measures prioritize commercial partnerships, reduce procurement friction, and unlock new funding pathways for defense technology companies, positioning the sector for accelerated growth.
Furthermore, many allies lack sovereign SIGINT capacity and require training, embedded support, and interoperable data frameworks. This demand spans direct data sales, sovereign or hybrid assets, and on-site exploitation support, reinforced by licensing models that enable lawful multi-nation sharing and monetization. We enable commercial entities to provide these services faster and to deploy new technologies quicker to allow customers to receive SIGINT capabilities rapidly. SIGINT adoption is mission critical in the face of rising adversarial threats, illegal maritime operations, and transnational crime.
Disruption of Legacy Models
Amid this procurement shift, legacy models are failing to keep pace with the realities of the modern battlefield. Traditional providers have been structured to develop and build large platforms (e.g., ships, aircraft, and tanks) over decades, but are challenged to accelerate development, scale up production, or release complex AI-enabled software at commercial industry and battlefield timelines. The DoW has
acknowledged that the traditional contracting model must adapt as the new battlefield reality evolves continuously. Defense tech disruptors prioritize mission outcomes through rapid iteration and adaptability, delivering field-ready solutions quickly. Unlike traditional contractors with long project timelines, and more cost effective than traditional defense industrial base entities, we move at the speed of the Warfighter – we commit capital and resources well in advance of user need and acquisition contracts, thereby enabling rapid response to operational changes.
Our Total Addressable Market
Our TAM today consists of the global RF spectrum exploitation market. We estimate that this TAM represents an approximately $24 billion opportunity as of October 2025, according to the Renaissance Study. This market encompasses collection systems and associated processing and analysis services. This includes sensors, payloads, algorithms, and services that support data collection. As global governments’ demand grows, we are scaling alongside their needs, helping expand the overall market and capturing a greater market share. We expect our TAM to reach approximately $34 billion by 2030, driven by the expansion in the number of sensors across domains, growth in support services and increasing government demand for contractor-sourced RF data.
Historically, the collection systems accounted for 37% of the market as of October 2025 according to the Renaissance Study. However, we expect the shift to space-based RF to fundamentally disrupt the previous customer purchase structure. As the space domain becomes increasingly critical to the United States and its allies, we see an opportunity for more customers to shift from hardware systems procurement to Data-as-a-Service, since low earth orbit (“LEO”) satellites have advantages in shareability, cost-effectiveness, speed to the Warfighter, customization, and global footprint unlike a localized drone or ship. Because a country’s own sovereign hardware system spends most of its time over other geographies, owning such a system is less appealing – making data purchases a more attractive option. We recognize that increased capture of this market will require continued investment in highly skilled personnel and software development. Our strategy is to dramatically scale RF data collection while continuously evolving our sensor network to meet growing customer demand.
Our Technology Advantage
Our vertically integrated technology stack powers the HawkEye 360 signal processing ecosystem, enabling continuous evolution and transformation to meet emerging defense and intelligence needs. Our capabilities allow us to dive deeper into the value chain where most other platforms are restricted through technical limitations. Additionally, our global coverage allows us to receive situational awareness over larger areas in a more cost-effective and time-sensitive manner than static sensors. Finally, our unique
signal recognition (“USR”), with its ability to identify and track specific emitter types, delivers considerable military value and continues to improve as our signal library expands.
Our Vertically Integrated Technology Stack
Collection
We design, manufacture, own, and operate a global constellation of over 30 satellites that collect RF data in formations of three, with fully reconfigurable software defined radar providing broad SIGINT coverage from 30 MHz to 18 GHz with a revisit rate of less than 45 minutes. The satellite’s broad beam allows us to cover more than one million square kilometers of the Earth in a single pass. We have deep expertise in designing and deploying highly capable and maneuverable small form factor payloads that integrate seamlessly onto commercial and national satellites. These payloads combine proprietary algorithms with advanced hardware – antennas and software-defined radios – creating a unique blend that delivers differentiated performance. This proven capability extends beyond our own constellation, enabling flexible deployment across multiple platforms and mission environments depending upon customer needs and the availability of other hosting platforms. Alternatives to our satellites are either highly classified or currently do not exist for most international customers lacking space capabilities.
Additionally, our broad coverage provides an advantage over more limited terrestrial collection capabilities.
Evolution of Our Satellites Types
End-to-End Signal Processing
HawkEye 360 operates on RF signals. Unlike imagery, the RF data form is unintelligible to humans, and requires custom algorithms to convert raw data into understandable featured and actionable intelligence – “unlocking” RF signals insights using our platform. These algorithms require a deep understanding of physics, RF characteristics of emitters and receivers, and deep knowledge of the modulation, waveforms, and emissions pulses, among many technical factors. We have developed a unique set of signal processing algorithms that allow us to detect, geolocate, and characterize a wide set of emitter types, including radars, GPS jammers, and mobile radio devices and tagging, tracking, and locating beacons (TTL). Our algorithms have several decades of operational history embedded within the U.S. Government’s SIGINT architecture. In addition to the algorithms, our processing advantage comes from our unclassified data archive of five years of collections, allowing us to mine this data to improve the algorithms. The archive has enabled us to build a proprietary unclassified emitter database to help identify signals. Our algorithms are built on the data collected from our constellation but are extensible to all domains – we are the only ones able to access this data and therefore the only ones able to interpret it. As a result, we deliver exceptional performance in signal detection, latency reduction, and scalability with clear market leadership.
Signals Process & Analytics Chain
Proprietary Analytics and Insights
Our analytics and insights capabilities operate on the outputs (i.e. features) of our signals processing algorithms. We employ our proprietary AI-enabled algorithms to identify, track, analyze, and predict patterns of behaviors for specific emitters, converting data into valuable and timely insights for Warfighters, intelligence analysts, and decision makers. We use our analytics capabilities as well as third party data (e.g. Automatic Identification Systems (“AIS”) transponders, imagery) to package these insights into a wide range of end products. In an age where governments and Warfighters have access to a tremendous volume of data, our analytics enable our customers to sort through this volume more swiftly and arrive at key insights for their missions. We can identify patterns of life and predict activity, detect threats, and enhance situational awareness. Our unclassified data analysis promotes greater accessibility for the United States and its allies compared to traditional government systems, while our classified capabilities serve to further entrench us with Warfighters, intelligence analysts, and decision makers.
Our AI-enabled algorithms are proprietary to us and are internally developed. We develop these AI-enabled algorithms by leveraging our unique signals archive of years of global collection data to train our in-house machine learning models. As part of a standard quality assurance and quality control review of new algorithms, we validate their overall function by comparing a selection of outputs to other sources of information (such as satellite imagery or AIS transponder data). Our AI-enabled algorithms rely on machine learning models, rather than large language models that may experience algorithmic hallucinations.
Our Offerings
Our offerings span the SIGINT value chain, comprising hardware and software solutions, comprehensive training programs, data products, embedded analysts for spectrum exploitation, and extensive data products. Our offerings solve a breadth of mission requirements, including mission-critical defense and intelligence applications, humanitarian-oriented solutions, and sustainability-focused capabilities. Currently, a significant portion of our revenue derives from data and analytics that provide intelligence across the following applications:
Maritime Intelligence
Our maritime intelligence capabilities deliver comprehensive situational awareness across the global maritime domain without forward deployment. We detect, geolocate, identify, classify, and track vessels of
all types, from commercial ships to sanctioned, suspicious, or nefarious actors who “spoof” or silence their identification transponders. By leveraging our proprietary algorithms integrated with third-party AIS and imagery, we provide high-confidence vessel identification and advanced analytics, such as movement tracking and velocity estimates. These capabilities enable actionable insights for mission-critical maritime security and law enforcement operations.
Maritime Domain Awareness in the South China Sea
HawkEye 360 has unique ability to track all types of maritime vessels
including those which obfuscate their location
Military Radar Monitoring
We are one of the few sources of unclassified data that provides advanced military radar monitoring capabilities, enabling autonomous detection, characterization, and identification of air defense systems. Global allied nations use our platform to monitor near-peer threats via analytics that identify specific radars, track their location and movements, distinguish radar operating modes, analyze operational patterns of life, and predict and track potential threats.
GNSS Jamming Detection
We deliver advanced GNSS jamming and spoofing detection across L1, L2, and L5 bands to ensure situational awareness and secure, uninterrupted operations in contested GPS environments. We can detect and pinpoint the source of GNSS jamming, a differentiator from peers in the market. Military operations routinely face contested GPS environments, where GNSS jamming and spoofing detection ensure situational awareness and secure operations. Our algorithms identify and characterize interference sources by detecting unauthorized transmissions within relevant frequency bands. Our tri-satellite clusters enable accurate source geolocation of GPS interference across complex terrain and identify the nature of disruption. Further, the existence of GNSS jamming can be an indicator of the nearby presence of high-value targets (“HVTs”) which can be thwarted by long range targeting through our RF data combined with other complementary sources of intelligence.
Iranian GPS Disruption
Evidence of Jamming and GPS spoofing is rampant in the Arabian Gulf;
HawkEye 360 is uniquely positioned to geolocate the source
Communications Mapping
We deliver critical situational awareness in remote, contested, or difficult-to-patrol regions by illuminating patterns of radio activity commonly used by criminal networks, violent organizations, border-crossing groups, and illicit poaching operations through detecting, geolocating, and mapping networks of non-encrypted military radio systems utilized by generally unsophisticated battlefield actors. By detecting, locating, and analyzing the behavior of Push-to-Talk (“PTT”), Digital Mobile Radio (“DMR”), and Satellite Communication (“SATCOM”) devices – tools often relied upon when terrain or distance limit other technologies – we help governments understand how nefarious actors coordinate and move. Our analytics map out the structure of these radio networks, showing how devices associate, groups organize, and activity flows across channels, with technical and legal access to the demodulated signals. This enables actionable insights into group linkages, roles, and operational patterns essential for effective interdiction and order-of-battle development.
Spectrum Exploitation
We provide unique access to raw, unprocessed RF signal data collection and delivery, enabling customers to perform deep technical analysis of the spectrum and associated signals. This capability
supports highly sensitive missions where customers apply their own proprietary processing algorithms, delivering flexibility for advanced exploitation and specialized operational requirements.
Solving NOAA's GOES-R Satellite Interference
In December 2024, interference disrupted one of the data reception channels used by weather
forecasting satellites that support flood monitoring, tsunami warnings, and scientific sensors. NOAA
engaged HawkEye 360 to identify and geolocate the source of the interference and were subsequently
able to restore normal data reception
Custom SIGINT Solutions
We provide custom SIGINT solutions for the U.S. Government, built for real-time collection and processing in the most demanding environments, powering and deeply integrated into the most critical national capabilities across space and other domains. Combining proven commercial hardware with proprietary Field-Programmable Gate Array (“FPGA”) accelerated systems and mission-specific algorithms, we deliver ultra-low latency, wideband signal processing with rapid adaptability and customization. The tailored SIGINT solutions we offer to the U.S. Government reduce cost, accelerate deployment, and ensure lifecycle maintainability. By tailoring waveform signal processing and exploitation tools to each mission, we deliver scalable, intuitive platforms that are deployed into the government collection, ground processing, and tactical edge systems.
Our Customers
We serve the world’s most demanding Warfighters, intelligence analysts, and decision makers, addressing their highest-priority defense needs with precision and agility. Our diverse mix of customers, ranging from U.S. Government defense, intelligence, and national security agencies to allied international governments, create a business model with limited customer concentration and broad applicability across use cases. Furthermore, we maintain deep relationships with government agencies, a strong understanding of government procurement processes, and prioritize international customers with strong demand, clear mission fit, and large budgets. Many of our international customers do not have their own organic space-based SIGINT capabilities, which enables us to build longer-term contracted sovereign space capabilities for our allied partners. We also engage in selective minor commercial applications
focused on maritime safety, security, and communications regulations compliance, and intend to scale into broader commercial applications.
To date, the majority of our data and insights delivery has occurred through customer-tasked signal collection and analytics. A portion of our revenue also comes from selling subscriptions to data in areas of interest (for example, data relating to vessels operating in the South China Sea). These subscriptions are HawkEye 360-tasked collections that are sold to multiple subscribed customers, allowing us to improve the product features, offer better customer pricing, and increase our margins. As a result of our broad collection capabilities, each collection produces multiple outputs that can be sold to multiple customers. We can perform prescribed analytics and gather insights for different customers on a singular set of data.
Our Competitive Strengths
Scalable Hardware and Rapid Data Delivery
Our deployed constellation of more than 30 satellites – built on more than a decade of R&D and five years of continuous learning and iterative design – delivers global coverage with revisit rates of approximately 45 minutes. We have prioritized a culture of continuous improvement, expanding the capabilities of each iterative satellite cluster while identifying and implementing initiatives that reduce costs of the constellation and envisioning long-term development efforts that can revolutionize our collection and processing architectures. Equipped with advanced sensors spanning tens of GHz, our system provides robust detection, geolocation, and characterization of diverse emitters in real-world noise and interference impacted environments. Our technical expertise in miniaturizing payloads and enhancing satellite capability was developed through years of experience and substantial company intellectual property. This has resulted in over a dozen successfully deployed satellite clusters, a strong strategic advantage to be further expanded as launch and satellite costs decrease.
Unique Technology Stack and Proprietary Signals Processing Platform
While we believe our constellation provides a sustainable advantage versus the competition, it is not, by itself, sufficient to drive our success. Our greatest advantage and area of intellectual property lies in our processing and analytics software platform that exploits our data. Built on five years of proprietary data collection, contested environment testing, and iterative refinement, the HawkEye 360 Signal Processing Platform incorporates our growing unclassified emitter database that enables identification of emitter types and unique signal recognition to identify individual vessels and emitters. Our analytics layer transforms processed data into actionable, differentiated insights for defense, intelligence, humanitarian, and sustainability missions. Fully vetted for operations within classified enclaves, the HawkEye 360 Signal Processing Platform expands intelligence reach and Warfighter awareness. By housing all capability within a unified platform, as opposed to a scattered data and code base, we can rapidly field new capabilities and customer asks.
Our algorithms require a deep understanding of physics, electromagnetics, and applied mathematics – fields where there is a limited pool of talent. We have built a team that combines academic rigor with decades of operational experience to deliver unique solutions, and nearly half of which hold security clearances. Extensive satellite RF data remains a highly protected resource outside national systems, and replicating this capability would demand access to expertise, years of contested environment data collection, and a mature processing pipeline integrated with hardware. In this market, even small algorithmic and data gains drive outsized operational impact, making our intellectual property rare and defensible and our products exceptionally valuable.
Comprehensive Product Portfolio and Flexible Service Model
We have invested significant resources to build a highly capable end-to-end operating model. This includes designing, testing, and building payloads and satellites, as well as owning and operating satellite constellations, processing, analyzing, and productizing the data, and deploying custom capabilities into U.S. Government SIGINT systems. Our model enables us to serve customers across the value chain and
meet them where their needs are. This vertical integration allows us to run our system at scale and capture network effects, such as rapidly tailoring algorithms based on new signal knowledge, modifying satellite payloads to better detect new emitters, or leveraging our scale of collected data to identify new signals and further improve our products. Our nimble business model allows us to move quickly, building out capacity ahead of customer demand while controlling risk through our deep understanding of customers’ needs and operating environments.
We promote flexibility throughout our platform, engaging customers through various capacities to execute their respective missions. For those customers requiring extensive support, we provide engineers and solutions architects who work directly with customers to design and implement tailored solutions, including capabilities such as indefinite quantity (“IQ”) dedicated tasking, geolocation, and subscription packages with pricing aligned to mission requirements. For more sophisticated customers, we deliver raw RF data alongside associated processing toolkits and these customers conduct their own analysis. For customers requiring dedicated capacity and clusters, we provide service levels ranging from fixed monitoring to reserved and on-demand tasking. For customers seeking turn-key intelligence estimates and data analytics “answers”, we provide our knowledge-based products offered on a subscription basis and tailored to the customer’s area of interest. Our wide-ranging product portfolio is supported by contractual flexibility and data shareability enabled by End User Licensing Agreements (“EULAs”) across partner nations to enhance interoperability. Across all tiers, our strength in signal detection, latency reduction, and scalable analytics, combined with the ability to fuse data from multiple sources and platforms, mitigates commoditization risk and delivers differentiated insights.
Trusted Relationships
We are a trusted SIGINT partner for U.S. Government agencies, allied ministries, and international organizations. Intentionally and specifically built to serve the U.S. Government and its allies, we hold the security clearances, cyber posture, contract vehicles, partnering relationships, and export infrastructure to operate at national-security scale. We hold over 200 export licenses — a major barrier to entry for potential competitors — and maintain trusted status with sophisticated customers and partners of national importance. The U.S. Government trusts our algorithms within critical national security systems. These relationships, which include key strategic partners/investors, require considerable time and understanding of government requirements to construct the contract vehicles from which we deliver our capabilities. Our contracts with the government are distinct from traditional government procurement, representing a collaboration between a commercial entity and the government to achieve an optimal outcome for the government and the Warfighter.
On an international basis, both directly and through the U.S. Government, we maintain deep engagement with more than ten international entities and key U.S. defense branches with rapid expansion into new mission areas. Our multi-year international contracts are highly sticky, driven by proven performance, rapid innovation, and a constantly evolving constellation.
Strong Financial Profile with Significant Runway
Our growth model is driven by increased scale, margin improvements, and efficiency. Due to our historical investment in our vertically integrated signals processing platform, we can rapidly scale our products with little incremental cost. As we integrate more data, we unlock multiple monetization points, and continuously enhance our collection, processing, and signals database. Customer demand largely translates directly into profit, without requiring new constellations or more engineers. From the year ended December 31, 2022 to the year ended December 31, 2025, our revenue grew from $30.5 million to $117.7 million, and our net income was $2.7 million and our adjusted EBITDA was $24.8 million for the year ended December 31, 2025, with only modest headcount growth, while signal processing and hardware innovations in our Block 3 satellites have further reduced capital expenditures as a percentage of revenue (“capital intensity”), in some cases approaching 75% reduction in capital intensity. Our multi-year pipeline visibility and key performance indicators (“KPIs”) demonstrate our compounding business model, with increases in backlog, EBITDA growth, and improving Free Cash Flow. Growing datasets and
constant transformative iteration reinforce our lead in a market where high capital requirements and scarce domain talent keep competitors at bay.
Multi-Prong Approach to Reducing Capital Intensity
Our Growth Strategies
We have a robust growth strategy across multiple channels, which we intend to execute through organic efforts, strategic partnerships, and acquisitions for key capabilities.
Enhance RF Capability for Significant Customer Expansion
In the near term, we are focused on expanding market penetration by delivering improved RF intelligence capabilities to existing and new customers.
Our continuous organic and inorganic development strengthens our signals processing platform with advanced algorithm expertise, accelerating signal discovery, and improving analytics to deliver scalable, customized products for our customers. Our recent ISA acquisition provides a general-purpose detection engine capable of identifying and isolating signals without prior knowledge in highly congested RF environments. We believe the upgraded platform will expand what we can detect and monetize, integrate HawkEye 360 data with third-party sources (including national systems, AIS feeds, and optical imagery), and create a unified environment for correlation, geolocation, and USR to detect and characterize previously unknown emitters.
Additionally, we are developing automated analytics software to fuse multiple data streams for real-time alerts, cueing, and mission orchestration, while expanding third-party integrations to deliver richer mission insights and operational advantages to a broader base of U.S. Government customers. Within the U.S. Government, we are actively expanding within multiple intelligence community organizations, serving new departments and teams as we field new capabilities and analytics. Within the DoW, we are moving from multiple small-scale engagements and test-and-evaluation programs to full-scale deployments, creating a substantial growth runway for the capabilities we already deliver. As we demonstrate proven performance, we intend to deepen domestic market penetration and expand to additional DoW customers. Our international growth strategy centers on three layers: selling data, deploying sovereign or hybrid assets, and providing on-site exploitation support. This approach positions us to access the $2 trillion global defense market of U.S. allies and partner nations, which represents two-thirds of our overall TAM. Our proven performance with our international anchor customers in theaters such as the Western Pacific and Eastern Europe supports expansion into new adjacent missions, like blue force tracking, long-range fires support, and space domain awareness. We are transitioning from single-year, limited buys to scaled programs of record that deliver superior data products, platforms, and sovereign systems,
integrating multiple intelligence disciplines into a unified architecture. We are applying this proven service model to target new large customers, with many new potential anchor customers in the pipeline. We intend to offer these partner nations data, analytics, training, embedded personnel, and shareable data structures governed by EULAs. As foreign nations build independent capabilities, they look to HawkEye 360 as a trusted provider.
Improved Latency and Tactical Applications
We intend to transform RF intelligence into a fully automated, globally persistent, real-time capability to better serve the operational mission. By reducing end-to-end latency from hours to minutes – and ultimately to seconds – we intend to enable insights fast enough to support tactical decision-making for missions such as Warfighter support, long-range fires, tactical ISR, and Golden Dome defense systems. These ultra-low-latency capabilities and global persistence will allow direct integration with U.S. Government systems that require rapid response.
Beyond defense, we expect this real-time persistent capability will extend to commercial and security applications, including maritime and border monitoring, enforcement operations, humanitarian, sustainability, and civil uses. Growing international demand for persistent, low-latency RF systems underscores the global relevance of these advancements. Our anticipated architecture leverages multiple paths to reduce latency, including direct downlinks, satellite crosslinks, and onboard processing, to deliver latency measured in seconds, combined with scalability, resiliency, and cost efficiency. This ensures full-spectrum situational awareness for threat anticipation and precision targeting, which would significantly expand our TAM.
To deliver on this vision, we are advancing RF intelligence through our agile constellation and platform enhancements. To significantly increase capacity while improving economics, we are deploying cost-efficient Block 3 satellites that capture about 80% of signals at roughly 75% lower cost, while upgraded Block 4 satellites provide superior precision in location and frequency. Our roadmap focuses on increasing multi-signal collection per satellite cluster pass, improving satellite uptime, and moving more processing into space to reduce downlink bottlenecks. We are also enhancing our tasking capability to initiate collections within minutes when a satellite is overhead, with rapid handoffs for persistent coverage and long-term tipping and cuing with other space-based geospatial assets to create meaningful multi-modal multi-INT products. Additionally, we are leveraging RF payload capabilities to build sensors for the U.S. Government, supporting space architecture modernization, and enabling international partners seeking RF data.
Growing RF Utilization Across Domains
We are expanding beyond data delivery to become a global, multi-domain RF intelligence provider capable of providing collection from geostationary orbit to the terrestrial sensor layer and becoming the leader in commercial RF geolocation, processing, and analysis. Building on our current capabilities spanning space to the Earth’s surface, we are enhancing integration across domains to deliver deeper situational awareness, faster decision cycles, resilience against adversary countermeasures, operational flexibility, and accelerated AI-driven development. Our recent ISA acquisition expanded our multi-domain processing across sources, identification, geolocation, and data retrieval, significantly enhancing our tactical relevance for the Warfighter. In addition to expanding space-based assets through Block 3 satellites, our strategy includes expanding integration with terrestrial sensors, naval drones, and airborne SIGINT platforms. This will allow us to leverage the best-in-kind capabilities from each domain, integrate them into our comprehensive signals processing platform, and deliver fused analytics that better serve customer needs. We aim to partner for the cost-intensive domain sensors / collectors and focus our efforts on the software platform that enables tasking, integration, and delivery.
To meet rising demand for dedicated or sovereign systems, we intend to offer customized satellite clusters and bespoke algorithms for customers requiring unique configurations. These capabilities will be combined with a dedicated capacity business model that enables us to retain ownership and operational
control of the sovereign asset. We expect our model of operating and processing the data from these systems will serve as a demand driver for additional data purchases, generating incremental recurring revenue, and enable end-to-end control, security, and operational independence. We further aim to design specialized RF payloads and hardware integrated directly into national security architectures as our capabilities become increasingly relevant for addressing U.S. Government space-based SIGINT requirements. We expect key features to include low-latency payloads on our satellites, ground stations deployed within customer countries for secure operations, and full capability delivery where tasking and downlink occur entirely within the customer’s region to ensure sovereignty. We intend to engineer each satellite cluster, data product, and analytics task to meet specific mission requirements, reinforcing our role as a trusted partner in building next-generation RF infrastructure.
Mergers and Acquisitions
Acquisitions and strategic partnerships form a core pillar of our growth strategy, enabling us to accelerate capability development and expand our TAM. We target acquisitions that strengthen RF processing, AI/ML analytics, hardware capabilities, multi-domain processing, RF services, and tactical relevance while adding relationships with U.S. Government organizations and mature business systems to support scale. Our criteria focus on companies with compelling margins, profitable operations, defensible IP, strong revenue visibility, complementary mission-first corporate cultures, and clean structures that integrate seamlessly into our business. By vetting dozens of companies to identify a shortlist of high-priority targets, we seek to ensure each acquisition compounds our ability to deliver differentiated insights and maintain leadership in a market with high capital barriers and scarce domain expertise. We have demonstrated a set of business competencies with the acquisition of ISA and, earlier, Aurora Insight, Inc. (“Aurora”), and anticipate further acquisitive growth in the future.
Recent Developments
Loan and Security Agreement
In connection with the ISA acquisition noted above, on December 18, 2025, we entered into an amendment and restatement of our existing loan and security agreement (the “Loan and Security Agreement”) with Silicon Valley Bank (“SVB”) (the “2025 Loan and Security Agreement”). The 2025 Loan and Security Agreement provides for a $14.6 million term loan (the “Senior Term Loan”), which was fully funded on December 18, 2025 and matures on September 1, 2028. The Senior Term Loan bears interest at a per annum rate equal to the greater of the Wall Street Journal Prime Rate and 6.75%.
Concurrently with the execution of the 2025 Loan and Security Agreement, we entered into a Mezzanine Loan and Security Agreement (the “2025 Mezzanine Loan and Security Agreement,” and together with the 2025 Loan and Security Agreement, the “2025 Loan and Security Agreements”) with First-Citizens Bank & Trust Company, as agent, and the financial institutions party thereto as lenders. The 2025 Mezzanine Loan and Security Agreement provides for a $34.0 million term loan (the “Mezzanine Loan”), which was fully funded on December 18, 2025 and matures on December 18, 2028. The Mezzanine Loan bears interest at (i) a per annum cash-pay rate equal to the greater of the Wall Street Journal Prime Rate plus a margin of 2.10% and 9.35%, and (ii) a per annum paid-in-kind rate equal to 1.50% (compounded monthly). The 2025 Mezzanine Loan and Security Agreement also provides for a 1% commitment fee, a final payment fee of 1.95%, and a prepayment fee if the Mezzanine Loan is repaid prior to the second anniversary of the closing date (subject to certain exceptions). For a further description of the 2025 Loan and Security Agreements, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Debt” below.
Series E Preferred Stock Financing
On December 18, 2025, we entered into a Series E preferred stock purchase agreement (the “Series E Purchase Agreement”) with certain investors, including entities affiliated with a beneficial owner of greater than 5% of our capital stock. From December 2025 to February 2026, we have issued and sold 5,237,357 shares of our Series E preferred stock, par value $0.0001 per share (the “Series E Preferred
Stock”) at a purchase price of $18.86 per share (the “Series E Per Share Price”), resulting in aggregate gross proceeds of $98.8 million. In addition, we have issued 1,325,316 shares of Series E Preferred Stock to certain legacy ISA shareholders as consideration for the ISA acquisition.
Preliminary Unaudited Estimated Financial Results for the Three Months Ended March 31, 2026
We are in the process of finalizing our operating results as of and for the three months ended March 31, 2026. We have presented below ranges of certain unaudited preliminary results and estimates of selected key business metrics for the three months ended March 31, 2026, as well as the actual unaudited results for the three months ended March 31, 2025. The following information reflects our preliminary estimates with respect to such data based on currently available information and does not present all necessary information for an understanding of our financial condition for the three months ended March 31, 2026. These estimated metrics should not be viewed as a substitute for our financial statements prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) included in this prospectus.
We have prepared and provided ranges, rather than specific amounts, for the information below, primarily because our financial closing and analysis procedures are not yet completed. This financial information has been prepared by, and is the responsibility of, our management and is subject to revisions based on our procedures and controls associated with our financial reporting process. While we believe that such information and estimates are based on reasonable assumptions and management’s reasonable judgment, our actual results may vary. Accordingly, undue reliance should not be placed on these preliminary estimates. Our independent registered public accounting firm, Grant Thornton LLP, has not audited, reviewed, or performed any procedures with respect to our preliminary results or the accounting treatment thereof and does not express an opinion or any other form of assurance with respect thereto. Our actual condensed consolidated financial statements as of and for the three months ended March 31, 2026 and 2025, are not expected to be filed with the U.S. Securities and Exchange Commission (the “SEC”) until after the completion of this offering.
Factors that could cause the actual results to differ include the discovery of new information that affects accounting estimates and management’s judgments or impacts valuation methodologies underlying these estimated results; the completion of our auditors’ procedures for the audit of our consolidated financial statements; and a variety of business, economic, and competitive risks and uncertainties, many of which are not within our control, and we undertake no obligation to update this information, unless required by law. Further, our preliminary estimates below are not necessarily indicative of the metrics to be expected for any future period. This information should be read together with the sections titled “Risk Factors,” “Special Note Regarding Forward-Looking Statements,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements and the related notes which are included elsewhere in this prospectus.
| | | | | | | | | | | | | | | | | |
| Three Months Ended March 31, |
| 2026 | | 2025 |
| (Estimated) | | Actual |
($’s in thousands) | High | | Low | |
| U.S. GAAP financial measures: | | | | | |
| Revenue | $ | | $ | | $ | 23,002 | |
| Net loss | | | | | (1,591) | |
| Non-GAAP financial measures: | | | | | |
Adjusted EBITDA(1) | | | | | 3,847 |
____________
(1)See “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for the definition of Adjusted EBITDA.
For the three months ended March 31, 2026, we expect preliminary unaudited revenue to be between $ million and $ million, compared to revenue of $23.0 million for the three months ended March 31, 2025. The estimated in revenue was primarily driven by .
For the three months ended March 31, 2026, we expect preliminary unaudited net loss to be between $ million and $ million, compared to net loss of $1.6 million for the three months ended March 31, 2025. The estimated in net loss was primarily driven by .
Reconciliation of Net Loss to Adjusted EBITDA
Adjusted EBITDA is a non-GAAP (as defined below) supplemental financial measure. For further information about the limitations to the use of the non-GAAP financial measures presented in this prospectus, see “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Non-GAAP Financial Measures.”
The following table presents a reconciliation of net loss to Adjusted EBITDA for the three months ended March 31, 2026 (at the low end and high end of the estimated net loss and Adjusted EBITDA ranges set forth above) and the respective prior year period.
| | | | | | | | | | | | | | | | | |
| Three Months Ended March 31, |
| 2026 | | 2025 |
| (Estimated) | | Actual |
($’s in thousands) | High | | Low | |
| Net loss | $ | | $ | | $ | (1,591) | |
| Adjustments: | | | | | |
| Interest income | | | | | (906) | |
| Interest expense | | | | | 18 | |
| Income tax (benefit) expense | | | | | — | |
| Depreciation and amortization | | | | | 5,000 | |
One-time costs related to IPO(1) | | | | | — | |
| Non-recurring legal expenses and settlements | | | | | 75 | |
| Stock-based compensation | | | | | 830 | |
| Change in fair value of warrant liabilities | | | | | 421 | |
| Adjusted EBITDA | | | | | $ | 3,847 | |
____________
(1)Represents costs incurred related to the IPO that do not meet the direct and incremental criteria per SEC Staff Accounting Bulletin Topic 5.A to be netted against the gross proceeds of the offering and that are not expected to recur in the future.
Risk Factors Summary
Our business is subject to numerous risks that you should be aware of before making an investment decision. These risks are described more fully in the section titled “Risk Factors” and include: •We have a limited operating history in an evolving industry, which makes it difficult to forecast our revenue, plan our expenses, and evaluate our business and future prospects.
•We may not be able to generate, sustain, and manage our growth due to a variety of external factors.
•We have a history of losses, we anticipate increasing operating expenses in the future, and we may not be able to continue to achieve and maintain profitability.
•The market for our products and services is relatively novel and may not achieve the size that we expect within the time frame we expect or at all.
•Any failure of our platform to meet customer expectations, integrate into customer workflows, or perform as intended could harm our business, results of operations, and financial condition.
•Our future revenue and operating results are dependent on our ability to attract new customers, generate a sustainable order rate for our products and services, and develop new technologies to address the needs of our customers.
•Our current and future acquisitions, dispositions or strategic transactions may fail to successfully integrate with our business activities or fail to deliver the expected return on investment and could have a material adverse effect on us.
•If we are not able to maintain and enhance our brand and reputation, including as a result of news and social media coverage on any incident involving us, our competitors, or our customers, our business and results of operations may be adversely affected.
•We may not be able to convert our projects in backlog, including funded backlog, into revenue.
•We may require additional capital to support business growth, and we cannot be sure that additional financing will be available.
•Adverse global market, economic and political conditions, including military conflicts or terrorist acts, pandemics, and other catastrophic events could have a material adverse effect on us.
•The majority of our business depends on sales to the public sector, and our failure to receive and maintain government contracts or changes in policies of the public sector has adversely affected and could continue to adversely affect our business, results of operations, financial condition, and growth prospects.
•We depend on the U.S. Government for a substantial portion of our business. Changes in the U.S. Government’s priorities and spending, or delays or reductions in spending, could have a material adverse effect on us.
•Our contracts with the U.S. Government and certain international customers may be terminated by the U.S. Government and such international customers at any time, which could have a material adverse effect on us.
•Our international business exposes us to risks relating to regulation, currency fluctuations, and political or economic instability in international markets, which could have a material adverse effect on us.
•Our international sales and operations are subject to applicable laws relating to trade, including economic and trade sanctions and trade controls, the violation of which could adversely affect our operations.
•We rely on data collected from our satellites. If our satellite clusters and related technologies fail to operate as intended and we become limited in our ability to collect such data, it could have a material adverse effect on us.
•We depend on our current President and Chief Executive Officer and other executive officers, senior management team, and highly trained employees, and our inability to hire or retain key personnel could have a material adverse effect on us.
•If our information technology systems or those third parties with whom we work or our data, are or were compromised, we could experience adverse consequences resulting from such
compromise, including regulatory investigations or actions; litigation; fines and penalties; disruptions of our business operations; reputational harm; loss of revenue or profits; loss of customers; and other adverse consequences.
•We or our subsidiaries have previously been, are currently, and may in the future be party to legal proceedings, investigations, and other claims or disputes, which are costly to defend and, if determined adversely to us, could require us to pay fines or damages, undertake remedial measures or prevent us from taking certain actions, any of which could have a material adverse effect on us.
•Our business is subject to various regulatory risks that could adversely affect our operations, including a wide variety of extensive and evolving government laws and regulations.
•Our level of indebtedness could have a material adverse effect on us.
•An active trading market for our common stock may never develop or be sustained.
•As a public benefit corporation, our management of the business in a manner that balances pecuniary interests of stockholders with the interests of stakeholders and our specific public benefit, in addition to our operating in a responsible and sustainable manner, may negatively influence our financial performance.
Implications of Being an Emerging Growth Company
We qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”). For so long as we remain an emerging growth company, we may take advantage of relief from certain reporting requirements and other burdens that are otherwise applicable generally to public companies. These provisions include:
•being permitted to provide only two years of audited financial statements, in addition to any required unaudited interim financial statements with correspondingly reduced “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosure;
•an exemption from compliance with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, as amended, in the assessment of our internal control over financial reporting;
•reduced disclosure about our executive compensation arrangements in our periodic reports, proxy statements, and registration statements;
•exemptions from the requirements of holding non-binding advisory votes on executive compensation or golden parachute arrangements; and
•an exemption from compliance with the requirements of the Public Company Accounting Oversight Board (“PCAOB”) regarding the communication of critical audit matters in the auditor’s report on financial statements.
We may take advantage of these provisions until the last day of the fiscal year ending after the fifth anniversary of the completion of this offering or such earlier time that we no longer qualify as an emerging growth company. We will cease to qualify as an emerging growth company on the date that is the earliest of: (1) the last day of our fiscal year following the fifth anniversary of the date of the completion of this offering, (2) the last day of the fiscal year in which we have more than $1.235 billion in total annual gross revenues, (3) the date on which we are deemed to be a “large accelerated filer” under the rules of the SEC, or (4) the date on which we have issued more than $1.0 billion of non-convertible debt over the prior three-year period. We will be deemed to be a “large accelerated filer” at such time that we (a) have an aggregate worldwide market value of our common stock held by non-affiliates of $700 million or more as of the last business day of our most recently completed second fiscal quarter, (b) have been required to
file annual and quarterly reports under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) for a period of at least 12 months and (c) have filed at least one annual report pursuant to the Exchange Act. We may choose to take advantage of some but not all of these reduced reporting burdens. We have taken advantage of certain reduced reporting requirements in this prospectus. Accordingly, the information contained herein may be different than you might obtain from other public companies in which you hold equity interests.
In addition, under the JOBS Act, emerging growth companies can delay adopting new or revised accounting standards until such time as those standards apply to private companies. We have elected to take advantage of the extended transition period to comply with new or revised accounting standards and to adopt certain of the reduced disclosure requirements available to emerging growth companies. As a result of the accounting standards election, we will not be subject to the same implementation timing for new or revised accounting standards as other public companies that are not emerging growth companies, which may make comparison of our financials to those of other public companies more difficult. As a result of these elections, the information that we provide in this prospectus may be different than the information you may receive from other public companies in which you hold equity interests. In addition, it is possible that some investors will find our common stock less attractive as a result of these elections, which may result in a less active trading market for our common stock and higher volatility in our share price.
See “Risk Factors—Risks Related to this Offering and Ownership of our Common Stock—We are an “emerging growth company” and we cannot be certain if the reduced disclosure requirements applicable to “emerging growth companies” will make our common stock less attractive to investors.”
Channels for Disclosure of Information
Following the closing of this offering, we intend to announce material information to the public through filings with the SEC, the investor relations page on our website, press releases, public conference calls, public webcasts, our blog posts on our website, and our X (formerly Twitter) (@hawkeye360) and LinkedIn (www.linkedin.com/company/hawkeye-360/) accounts. Information contained on, or accessible through, our website and accounts is not a part of this prospectus, and the inclusion of our website and account addresses in this prospectus is only as inactive textual references.
The information disclosed through the foregoing channels could be deemed to be material information. As such, we encourage investors, the media, and others to follow the channels listed above and to review the information disclosed through such channels. Any updates to the list of disclosure channels through which we will announce information will be posted on the investor relations page on our website.
Corporate Information
We were incorporated under the laws of the State of Delaware in September 2015, and we will make an election to be treated as a public benefit corporation under Delaware law, to be effective upon the completion of this offering. Our principal executive offices are located at 450 Springpark Place, Suite 500, Herndon, Virginia 20170, and our telephone number is (571) 203-0360. Our website address is www.he360.com. The information contained on, or accessible through, our website is not incorporated by reference into this prospectus. We have included our website in this prospectus solely as an inactive textual reference.
Public Benefit Corporation Status
As a demonstration of our long-term commitment to public safety and security, and in recognition of the way our commercial activities promote the same, we will make an election to be treated as a public benefit corporation under Delaware law, to be effective upon the completion of this offering. Public benefit corporations are a class of corporations that are intended to produce a public benefit and to operate in a responsible and sustainable manner. Under Delaware law, a public benefit corporation is required to
identify in its certificate of incorporation the public benefit or benefits it will promote, and its directors have a duty to manage the affairs of the corporation in a manner that balances the pecuniary interests of the corporation’s stockholders, the best interests of those materially affected by the corporation’s conduct, and the specific public benefit or benefits identified in the corporation’s certificate of incorporation. Our public benefit, as provided in our amended and restated certificate of incorporation, is to preserve the safety, security, and resilience of the American people and our allies. See the section titled “Business—Public Benefit Corporation” for additional information.
Trademarks and Trade Names
This prospectus includes trademarks, trade names and service marks owned by us or that we license, including our logo, HawkEye 360®, and Aurora Insight®. This prospectus also includes trademarks, tradenames, and service marks that are the property of other organizations. Solely for convenience, our trademarks and tradenames referred to in this prospectus appear without the ® and ™ symbol, but those references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights, or the right of the applicable licensor to these trademarks and tradenames.
Non-GAAP Financial Measures
This prospectus contains certain financial measures, including Adjusted EBITDA and Free Cash Flow, which are financial measures that are not calculated and presented in accordance with U.S. GAAP. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for our definitions of these non-GAAP measures, information about how and why we use these non-GAAP measures and a reconciliation of each of these non-GAAP measures to its most directly comparable financial measure calculated in accordance with U.S. GAAP.
THE OFFERING
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Common stock offered by us in this offering | shares. |
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Underwriters’ option to purchase additional shares of common stock | We have granted the underwriters an option for a period of 30 days to purchase up to additional shares of common stock. |
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Common stock to be outstanding immediately after this offering | shares (or shares if the underwriters exercise in full their option to purchase additional shares of common stock). |
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Use of proceeds | We estimate that the net proceeds from this offering will be approximately $ million (or approximately $ million if the underwriters exercise in full their option to purchase up to additional shares of common stock), assuming an initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after deducting the underwriting discounts and commissions and estimated offering expenses payable by us. The principal purposes of this offering are to increase financial flexibility, create a public market for our common stock and enable access to the public equity markets for us and our stockholders. We intend to use $ of the net proceeds from this offering to repay all of our outstanding borrowings under the 2025 Loan and Security Agreement and the 2025 Mezzanine Loan and Security Agreement (each as defined herein), together with accrued interest. As of December 31, 2025, we had an aggregate of $14.6 million outstanding under the Senior Term Loan (as defined herein) and $34.0 million outstanding under the Mezzanine Loan (as defined herein). We also expect to use up to $15.0 million of the net proceeds from this offering to make the deferred payment included in the total consideration for the ISA Acquisition. |
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| We expect to use any remaining net proceeds from this offering for working capital and other general corporate purposes. See the section titled “Use of Proceeds” beginning on page 92 for additional information. |
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Directed share program | At our request, the underwriters have reserved up to 5% of the shares of common stock offered hereby (excluding the additional shares that the underwriters have an option to purchase), at the initial public offering price, to offer to certain of our directors, officers, employees and others. The sales will be made at our direction by Morgan Stanley & Co. LLC and its affiliates through a directed share program. The number of shares of common stock available for sale to the general public will be reduced to the extent these individuals purchase such reserved shares. Any reserved shares that are not so purchased will be offered by the underwriters to the general public on the same terms as the other shares offered by this prospectus. Except for any shares acquired by our directors or officers, shares purchased pursuant to the directed share program will not be subject to lock-up agreements with the underwriters. See the section titled “Underwriting—Directed Share Program” for additional information. |
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Risk factors | You should read the section titled “Risk Factors” for a discussion of factors you should consider carefully, together with all the other information included in this prospectus, before deciding to invest in our common stock. |
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Proposed listing and symbol | We intend to apply for listing of our common stock on the New York Stock Exchange under the symbol “HAWK.” |
The number of shares of our common stock to be outstanding after this offering is based on shares of our common stock outstanding as of December 31, 2025, after giving effect to the automatic conversion of all outstanding shares of our convertible preferred stock (including shares of Series E Preferred Stock issued from December 2025 to February 2026) into an aggregate of 68,987,988 shares of common stock upon the closing of this offering and the Warrant Net Exercises (as defined below), and excludes:
•14,675,271 shares of our common stock issuable upon the exercise of options outstanding as of December 31, 2025 under our 2015 Stock Incentive Plan (the “2015 Plan”), at a weighted-average exercise price of $2.73 per share;
•182,786 shares of our common stock subject to restricted stock units (“RSUs”) outstanding as of December 31, 2025 under the 2015 Plan;
•3,966,977 shares of our common stock available for future issuance as of December 31, 2025 under our 2015 Plan, which shares will cease to be available for issuance under the 2015 Plan at the time our 2026 Equity Incentive Plan (the “2026 Plan”), becomes effective and will be added to, and become available for issuance under, the 2026 Plan;
•5,304,255 shares of our common stock issuable upon the exercise of common stock warrants outstanding as of December 31, 2025, with a weighted-average exercise price of $0.94 per share (other than the Warrant Net Exercises);
•an additional shares of our common stock reserved for future issuance under our 2026 Plan, which will become effective upon the execution and delivery of the underwriting agreement for this offering, as well as any automatic increases in the number of shares of common stock reserved for future issuance under the 2026 Plan and any additional shares of our common stock
that may become available under the 2026 Plan, as more fully described in “Executive Compensation—Equity Benefit Plans—2026 Equity Incentive Plan”; and
• shares of our common stock reserved for future issuance under our 2026 Employee Stock Purchase Plan (the “ESPP”), which will become effective upon the execution and delivery of the underwriting agreement for this offering, as well as any automatic increases in the number of shares of common stock reserved for future issuance under the ESPP, as more fully described in “Executive Compensation—Equity Benefit Plans—2026 Employee Stock Purchase Plan”.
Unless otherwise indicated, all information contained in this prospectus, including the number of shares of common stock that will be outstanding after this offering, assumes or gives effect to:
•the conversion of all outstanding shares of our convertible preferred stock into 67,992,679 shares of our common stock, which will occur upon the closing of this offering;
•the net issuance of shares of our common stock issuable upon the cashless exercise of warrants issued in connection with our preferred stock financings at a weighted average exercise price of $ per share, based on an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus (the “Warrant Net Exercises”);
•the filing and effectiveness of our amended and restated certificate of incorporation upon the closing of this offering;
•no exercise of the outstanding options or warrants referred to above after December 31, 2025 (other than the Warrant Net Exercises);
•no settlement of the outstanding RSUs described above;
•no exercise by the underwriters of their option to purchase additional shares of our common stock; and
•no purchase of shares of our common stock by our directors, officers, employees and others through the directed share program described in the section titled “Underwriting—Directed Share Program.”
For illustrative purposes, the table below shows the number of shares of common stock to be issued upon the Warrant Net Exercises, based on an initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus and increase (decrease) in $1.00 increments, and, in each case, assuming the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same.
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Initial Offering Price | | Common Stock to be Issued Upon the Warrant Net Exercises | | Common Stock to be Outstanding Immediately Following the Completion of this Offering |
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SUMMARY CONSOLIDATED FINANCIAL AND OTHER DATA
The following tables set forth our summary consolidated financial data. The summary consolidated statements of operations data for the years ended December 31, 2025 and 2024 and the summary consolidated balance sheet data as of December 31, 2025, have been derived from our audited consolidated financial statements included elsewhere in this prospectus. Our historical results are not necessarily indicative of the results that may be expected in the future.
You should read the following summary unaudited consolidated financial data in conjunction with the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements and related notes included elsewhere in this prospectus. The summary consolidated financial data in this section are not intended to replace, and are qualified in their entirety by, the audited consolidated financial statements and related notes.
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| Years Ended December 31, |
| 2025 | | 2024 |
($ in thousands, except share and per share data) | | | |
Revenue | $ | 98,743 | | $ | 49,835 | |
Revenue from related parties | 18,917 | | | 17,724 | |
Total revenue | 117,660 | | | 67,559 | |
Operating expenses: |
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Direct cost of sales, excluding depreciation and amortization | 21,687 | | | 18,927 | |
Indirect cost of sales and other expenses, excluding depreciation and amortization | 2,092 | | | 1,421 | |
Selling, general and administrative | 46,291 | | | 31,919 | |
Research and development | 28,913 | | | 24,793 | |
Depreciation and amortization | 23,568 | | | 25,185 | |
Total operating expenses | 122,551 | | | 102,245 | |
Loss from operations | 4,891 | | | (34,686) | |
Other income (expense): |
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Interest income | 3,409 | | | 5,799 | |
Interest expense | (304) | | | (177) | |
Other (expense) income, net | (2,274) | | | 67 | |
Total other income, net | 831 | | | 5,689 | |
Loss before income taxes | (4,060) | | | (28,997) | |
Income tax benefit | 6,733 | | | — | |
Net income (loss) | $ | 2,673 | | | $ | (28,997) | |
Preferred stock dividend | (2,224) | | | (2,224) | |
Income allocated to participating securities | (401) | | | — | |
Net income (loss) attributable to common shareholders | $ | 48 | | $ | (31,221) | |
Net income (loss) per share of common stock, basic and diluted(1) | $ | 0.01 | | $ | (5.00) | |
Weighted-average shares outstanding, basic(1) | 7,511,429 | | | 6,249,867 | |
Weighted-average shares outstanding, diluted(1) | 13,812,329 | | | 6,249,867 | |
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(1)See Note 18 to our audited consolidated financial statements appearing at the end of this prospectus for details on the calculation of basic and diluted net income (loss) per share attributable to common stockholders.
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($ in thousands, except share and per share data) | Year Ended December 31, 2025 |
Pro forma net income per share, basic(1) | $ |
Pro forma net income per share, diluted(1) | $ |
Pro forma weighted-average shares outstanding, basic(1) |
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Pro forma weighted-average shares outstanding, diluted(1) |
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(1)Pro forma basic and diluted net income per share has been prepared to give effect to adjustments to our capital structure arising in connection with the completion of this offering and is calculated by dividing pro forma net income attributable to common stockholders by the pro forma weighted-average common shares outstanding for the period. The unaudited pro forma net income used in the calculation of unaudited pro forma basic and diluted net income (loss) per share is equal to net income attributable to common stockholders. The unaudited pro forma basic and diluted weighted-average common shares outstanding used in the calculation of unaudited pro forma basic and diluted net income (loss) per share for the year ended December 31, 2025 have been prepared to reflect the adjustments described in the section titled “Unaudited Pro Forma Condensed Combined Financial Information”. See that section for details of the adjustments made to arrive at pro forma basic and diluted net income per share and weighted-average shares outstanding.
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| As of December 31, 2025 |
| (in thousands) | Actual | | Pro Forma(1) | | Pro Forma as Adjusted(2)(3) |
| Consolidated Balance Sheet Data: | | | | | |
Cash and cash equivalents | $ | 92,686 | | | | | |
Restricted cash | 4,587 | | | | | |
Working capital(4) | 127,878 | | | | | |
Total assets | 489,940 | | | | | |
Total liabilities | 148,857 | | | | | |
Redeemable preferred stock | 447,586 | | | | | |
Common stock | 2 | | | | | |
Additional paid-in-capital | 39,336 | | | | | |
Accumulated deficit | (145,841) | | | | | |
Total stockholders’ deficit | (106,503) | | | | | |
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(1)The pro forma column above reflects:
•the issuance of 995,309 shares of Series E Preferred Stock for net proceeds of $ million subsequent to December 31, 2025;
•the automatic conversion of all outstanding shares of our convertible preferred stock (including shares of Series E Preferred Stock issued subsequent to December 31, 2025) into 68,987,988 shares of our common stock in connection with the closing of this offering; and
•the issuance of shares of our common stock in connection with the Warrant Net Exercises (based on the assumed initial public offering price of $ per share, the midpoint of the price range set forth on the cover page of this prospectus).
(2)The pro forma as adjusted column above gives effect to:
•the pro forma adjustments set forth above; and
•the sale and issuance by us of shares of our common stock in this offering, based upon the assumed initial public offering price of $ per share, which is the midpoint of the offering price range set forth on the cover page of this prospectus, after deducting underwriting discounts and commissions and estimated offering expenses payable by us; and
•the repayment of indebtedness as described in “Use of Proceeds”.
(3)Each $1.00 increase (decrease) in the assumed initial public offering price of $ per share, which is the midpoint of the offering price range set forth on the cover page of this prospectus, would increase (decrease) the amount of our pro forma as adjusted cash and cash equivalents, working capital, total assets, and total stockholders’ (deficit) equity by $ million, assuming that the number of shares of our common stock
offered by us, as set forth on the cover page of this prospectus, remains the same, after deducting underwriting discounts and commissions. An increase (decrease) of 1.0 million shares in the number of shares offered by us would increase (decrease), as applicable, the amount of our pro forma as adjusted cash and cash equivalents, working capital, total assets, and total stockholders’ (deficit) equity by $ million, assuming the assumed initial public offering price remains the same, and after deducting underwriting discounts and commissions. Pro forma adjustments in the footnotes above and the related information in the balance sheet data are illustrative only and may differ from actual amounts based on, among other things, the actual initial public offering price and other terms of this offering determined at pricing.
(4)Working capital is defined as current assets less current liabilities.
Key Performance Indicators and Non-GAAP Financial Measures
We review a number of operating and financial metrics, including the following key performance indicators and non-GAAP financial measures to evaluate our business, measure our performance, identify trends affecting our business, formulate financial projections, and make strategic decisions. See the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Key Performance Indicators and Non-GAAP Financial Measures” for additional information regarding our key business metrics and for additional information and reconciliations of our non-GAAP financial measures to the most directly comparable financial measures prepared in accordance with GAAP.
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| ($ in thousands) | As of and for the Year ended December 31, 2025 | | As of and for the Year ended December 31, 2024 |
Backlog(1) | $ | 302,719 | | | $ | 44,098 | |
Net Income (Loss) | 2,673 | | | (28,997) | |
Adjusted EBITDA(2) | 24,768 | | | (6,349) | |
Net Cash (Used In) Provided by Operating Activities | (17,339) | | | 11,966 | |
Free Cash Flow(2) | (28,406) | | | (23,785) | |
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(1)Our backlog represents the portion of legally binding contracts that are expected to result in future revenue. Backlog may also include change orders for any contracts that have been formally contracted. This includes firm contracts that contain remaining performance obligations, including the cancellable portion of the contract value for contracts that provide the customer with a right to terminate for convenience without incurring a substantive termination penalty. Backlog also can include up to the remaining ceiling on single award IDIQ contracts where no task orders have been issued. Backlog excludes the value of unexercised options to extend contracts, the value of multi-award IDIQ contracts, and the value of any contracts, or a portion thereof, where management deems execution to be unlikely to result in revenue due to customer-specific or other factors.
(2)Adjusted EBITDA and Free Cash Flow are non-GAAP financial measures.
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should carefully consider the risks and uncertainties described below, together with all of the other information contained in this prospectus, including our consolidated financial statements and related notes included elsewhere in this prospectus and the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” before making an investment decision. The risks described below are not the only ones we face. Additional risks and uncertainties that we are unaware of, or that we currently believe are not material, may also become important factors that affect us. If any of the following risks are realized, our business, financial condition, results of operations and prospects could be materially and adversely affected. In that event, the price of our common stock could decline and you could lose part or all of your investment.
Risks Related to Our Business and Industry
We have a limited operating history in an evolving industry, which makes it difficult to forecast our revenue, plan our expenses, and evaluate our business and future prospects.
We have a limited operating history in a rapidly evolving industry that may not continue to develop in a manner that we expect or that otherwise would be favorable to our business. For example, we are the first commercial provider of space-based SIGINT, and we deliver capabilities once limited to classified domains. While our business has grown rapidly, and much of that growth has occurred in recent periods, including through acquisitions, the global RF exploitation market may not continue to develop in a manner that we expect or that otherwise would be favorable to our business. As a result of our limited operating history and ongoing changes in our rapidly evolving industry, including evolving demand for our products and services from government and commercial customers, our ability to forecast our future results of operations and plan for and model future growth is limited and subject to a number of uncertainties.
We have encountered and expect to continue to encounter risks and uncertainties frequently experienced by growing companies in rapidly evolving industries, such as the risks and uncertainties described herein. Accordingly, we may be unable to prepare accurate internal financial forecasts or replace anticipated revenue that we do not receive, and our results of operations in future reporting periods may be below the expectations of investors or analysts. If we do not address these risks successfully, our results of operations could differ materially from our estimates and forecasts or the expectations of investors or analysts, causing our business to suffer and our common stock price to decline.
We may not be able to generate, sustain, and manage our growth due to a variety of external factors.
Since our founding in 2015, we have experienced rapid growth, which has placed, and may continue to place, significant demands on our management, sales and marketing, administrative, financial, research and development, and other resources. Additionally, our organizational structure is becoming more complex as we scale our operational, financial, and management controls, as well as our reporting systems and procedures. We may not be able to maintain or accelerate our growth rate, manage our expanding operations effectively or achieve planned growth on a timely or profitable basis. Failure to manage our anticipated growth could negatively affect our reputation and harm our ability to attract new customers and to grow our business.
We intend to scale and expand our operations significantly with the aim of continuously launching new satellites, developing new algorithms, and expanding our emitter database. To properly manage our growth, we will need to hire and retain additional personnel, upgrade our existing operational management and financial and reporting systems, and improve our business processes and controls. If our operations continue to grow as planned, we will need to expand our sales and marketing, research and development, customer and commercial strategy, products and services, supply, manufacturing, information technology, and security functions. We will also need to continue to leverage our operational
systems and processes, and there is no guarantee that we will be able to scale the business as currently planned or within the planned timeframe. The continued expansion of our business may also require additional manufacturing and operational facilities, as well as space for administrative support. Additionally, our continued growth could increase the strain on our resources and we could experience operating difficulties, including difficulties in hiring, training and managing an increasing number of employees. These difficulties may result in the erosion of our brand image, divert the attention of management and key employees, and impact financial and operational results. If we are unable to drive commensurate growth, these costs could result in decreased margins, which could have a material adverse effect on our business, financial condition, and results of operations.
Our success and revenue growth depend on several factors, many of which are out of our control.
We believe our success and revenue growth depends on several factors, many of which are out of our control, including our ability to:
•negotiate and execute contracts with our U.S. Government and allied international government customers;
•identify and complete acquisitions and integrate acquired companies, including personnel, systems, and business processes;
•scale our revenue and achieve the operating efficiencies necessary to achieve and maintain profitability;
•anticipate and respond to changing customer requirements;
•anticipate and respond to macroeconomic changes, including changes in U.S. foreign affairs, global security, relationships between the United States and its allies, and changes in the markets for items related to our services and products generally;
•improve and expand our operations and information systems;
•successfully compete against existing competitors and the status quo;
•manage and improve our business processes in response to changing business needs;
•effectively scale our operations while maintaining high customer satisfaction;
•hire, train, and retain talented employees at all levels of our business;
•avoid or manage interruptions in our business from information technology downtime, cybersecurity breaches, and other factors affecting our physical and digital infrastructure;
•adapt to changing conditions in our industry;
•comply with stringent and evolving regulations applicable to our business;
•develop new technologies;
•control expenses and investments in anticipation of expanded operations;
•upgrade the existing operational management and financial reporting systems and team to comply with requirements as a public company; and
•implement and enhance administrative infrastructure, systems, and processes.
If we are unable to accomplish any of these tasks, our revenue growth will be harmed. We also expect our operating expenses to increase in future periods, and if our revenue growth does not increase
to offset these anticipated increases in our operating expenses, our business, results of operations, and financial condition will be harmed, and we may not be able to achieve or maintain profitability.
We have a history of losses, we anticipate increasing operating expenses in the future, and we may not be able to continue to achieve and maintain profitability.
Prior to the year ended December 31, 2025, we had experienced net losses in each year since our founding in 2015. We may not continue to achieve or maintain profitability in the future. Because the markets in which we operate are evolving, it is difficult for us to predict our future results of operations. As we continue to develop our business, we expect our operating expenses to significantly increase as we make investments or acquisitions, expand our operations and infrastructure, develop and introduce new technologies, and hire additional personnel. These efforts may be more costly than we expect and may not result in revenue growth or increased efficiency. When we become a public company, we will incur additional significant legal, accounting, and other expenses that we did not incur as a private company. We may also encounter unforeseen or unpredictable factors, including adverse macroeconomic conditions, unforeseen operating expenses, or other complications or delays, which may result in increased costs, or cause us to generate less revenue from our customers than we anticipated. If our revenue does not increase to offset these expected increases in our operating expenses, we will not be profitable in future periods. Any of the foregoing could have a material adverse effect on us. We cannot make any assurances that we will ever achieve or sustain profitability and may continue to incur significant losses going forward. Any failure by us to achieve or sustain profitability on a consistent basis could cause the value of our common stock to decline.
The market for our products and services is relatively novel and may not achieve the size that we expect within the time frame we expect or at all.
The market for our products and services has not been established with precision, as the commercialization of SIGINT and RF spectrum exploitation is a relatively recent development and continues to evolve rapidly. Our estimates of TAM are based on the Renaissance Study and reflect a variety of assumptions which include, among other things, expected growth in the number and deployment of sensors across domains, expansion of support services, and significant government demand, each of which is inherently uncertain and subject to change. Such assumptions may prove to be inaccurate, incomplete or overly optimistic. These estimates may be materially overstated, may not develop as projected or may not be indicative of revenue growth or future demand. Any failure of the market to grow as anticipated, or of our business to capture or maintain a share of that market, could materially and adversely affect our business, financial condition, results of operations, and prospects.
Any failure of our platform to meet customer expectations, integrate into customer workflows, or perform as intended could harm our business, results of operations, and financial condition.
Our business depends on the performance and improvement of our proprietary signals processing platform, algorithms, and analytics capabilities. Maintaining the ability to detect and locate known emitters, as well as finding new emitters our customers need, can be a complex and challenging development activity. Inability to meet the unique needs of our customers may result in customer dissatisfaction and/or damage to our reputation, which could materially harm our business. The potential commercial applications of our platform may be more limited than we anticipate. Further, the proper use of our platforms may require training of the customer and the initial or ongoing services of our engineers and solutions architects over the contract term. If training and/or ongoing services require more of our expenditures than we originally estimated, our margins may be lower than projected. If our customers are not well trained in the use of our platform, customers may defer the deployment of our platform and services, may deploy them in a more limited manner than originally anticipated, or may not deploy them at all, which could negatively impact our business, results of operations, and growth prospects.
In addition, if our customers do not use our platforms correctly or as intended, inadequate performance or outcomes may result. It is possible that our platform may also be intentionally misused or
abused by customers or third parties who obtain access and use of our platform. Because our customers rely on our platform and services to provide mission-critical capabilities for defense and intelligence applications, the incorrect or improper use or configuration of our platform, failure to properly train customers on how to efficiently and effectively use our platform, or failure to properly provide implementation or analytical or maintenance services to our customers may result in contract terminations or non-renewals, reduced customer payments, negative publicity, or legal claims against us, which could adversely affect our business, results of operations, and financial condition.
Our future revenue and operating results are dependent on our ability to attract new customers, generate a sustainable order rate for our products and services, and develop new technologies to address the needs of our customers.
Our financial performance is dependent on our ability to attract new customers and generate sustainable demand for our products and services. This can be challenging and may fluctuate on an annual basis. For example, some of our U.S. Government contracts are IDIQ contracts, which do not guarantee revenue. While these contracts define the period of performance and scope of work, they do not guarantee that we will receive any specific volume of task orders. If we are unsuccessful in receiving individual orders, our financial results could be materially adversely affected. In addition, our customers’ requirements change and evolve rapidly. If we are unable to attract new customers or execute existing contracts as expected, our business, results of operations and financial position could be further adversely affected.
The markets in which we operate are characterized by changing technology and evolving industry standards, and we may not be successful in identifying, developing, and marketing products and services that respond to rapid technological change, evolving technical standards and systems developed by others. Our competitors may develop technology that better meets the needs of our customers. Failure to respond in a timely and cost-effective way to these technological developments would result in serious harm to our business and operating results. For example, certain U.S. Government systems demand ultra-low latency, and as such we are developing our real-time, tactical SIGINT product to reduce end-to-end latency from hours to minutes. If we are unable to deliver favorable economics, scalability, ultra-low latency, and high resilience, our ability to meet the needs of our customers may be adversely affected, which could have a negative impact on our business. If we fail to develop, manufacture, and market innovative technologies or services that meet customers’ requirements or our technologies and services fail to achieve market acceptance more rapidly as compared to our competitors, our ability to attract new users or procure new contracts could be negatively impacted, our business may not continue to grow in line with historical rates or at all and our business, financial condition, and results of operations could be materially and adversely affected.
As we seek to meet rising demand for dedicated or sovereign systems by offering customized satellite clusters, bespoke algorithms, and specialized RF payloads, we may face significant technical, operational, and integration challenges that could delay or prevent successful deployment. Our ability to deliver these purpose-built systems, often requiring secure ground infrastructure, low-latency payloads and end-to-end capability within a customer’s region, depends on complex engineering, supply chain performance and alignment with national security architectures. If we are unable to design, deliver, or operate these systems as intended, anticipated demand for our offerings, including expected incremental recurring revenue from dedicated-capacity models, may not materialize and our growth prospects could be adversely affected.
Moreover, AI technologies have rapidly developed, and our business may be adversely affected if we cannot continue to successfully integrate AI into our platform and optimize our AI analytics algorithms in a timely, cost-effective, compliant, and responsible manner. In addition, our competitors may more successfully integrate AI technology in a way that better meets the needs of our potential customers. Moreover, if we were to use AI and the content, analyses, or recommendations that AI applications assist in producing are or are alleged to be deficient, inaccurate, or biased, our business, financial condition and results of operations may be adversely affected. The rapid evolution of AI, including potential government
regulation of AI, will require significant resources to develop, test, and maintain our platform, offerings, services, and features to help us implement AI ethically to minimize unintended, harmful impact.
In addition, we believe that, in order to remain competitive in the future, we will need to continue to invest significant financial resources to develop new offerings and technologies or to adapt or modify our existing offerings and technologies, including through internal research and development, acquisitions and joint ventures, or other teaming arrangements. These expenditures could divert our attention and resources from other projects, and we cannot be sure that these expenditures will ultimately lead to the timely development of new offerings and technologies or identification of and expansion into new markets.
Our current and future acquisitions, dispositions or strategic transactions may fail to successfully integrate with our business activities or fail to deliver the expected return on investment and could have a material adverse effect on us.
The success of our acquisitions will depend, in part, on our ability to realize the anticipated benefits from integrating their business with ours. On December 15, 2023, we acquired 100% of the outstanding shares of capital stock of Aurora, which thereafter became a wholly-owned subsidiary of HawkEye 360, Inc. Additionally, on December 18, 2025, we acquired 100% of the outstanding shares of capital stock of ISA, which thereafter became a wholly-owned subsidiary of HawkEye 360, Inc. The success of these acquisitions will depend on our ability to expand our product capabilities to provide an integrated SIGINT solutions platform, apply new analytics capabilities to our satellites and expand our processing capabilities to support existing unclassified capabilities and unlock access to classified programs for dedicated systems for the U.S. Government. We have devoted and continue to devote substantial management attention and resources to the integration of business practices and operations so that we can fully realize the anticipated benefits of acquisitions, including cost and revenue synergies. Nonetheless, difficulties may arise that could impede our ability to achieve such synergies, including the loss of key talent that may be difficult to replace. As a result, the anticipated benefits of acquisitions may take longer to realize, may not be fully realized, or may cost more than expected, which could materially and adversely affect our business, results of operations or financial condition, as well as adversely impact our share price.
We also expect to make additional acquisitions in the future. The acquisition of businesses, offerings, technologies or talent that we believe could complement or expand our business platform, enhance our technical capabilities, or offer growth opportunities may not occur as planned. In addition, such acquisitions may divert the attention of management and cause unexpected expenses related to identifying, investigating and pursuing suitable acquisitions, whether or not they are consummated. Furthermore, there are inherent risks in integrating and managing acquisitions, and we may not be able to assimilate or integrate the acquired personnel, operations, solutions, and technologies successfully, or effectively manage the combined business following the acquisition. Additionally, we may not achieve the anticipated benefits or synergies from the acquired business due to a number of factors, including, without limitation:
•unanticipated costs or liabilities associated with the acquisition, including claims related to the acquired company, its offerings, existing contractual arrangements, or technology;
•incurrence of acquisition-related expenses, which would be recognized as a current period expense;
•inability to generate sufficient revenue to offset acquisition or investment costs;
•inability to maintain relationships with customers and partners of the acquired business;
•challenges with incorporating acquired technology and intellectual property or other proprietary rights into our platform and maintaining quality and security standards consistent with our brand;
•inability to identify security vulnerabilities in acquired technology prior to integration with our technology and platform;
•inability to achieve anticipated synergies or unanticipated difficulty with integration into our corporate culture;
•delays in customer purchases due to uncertainty related to any acquisition;
•the need to integrate or implement additional controls, procedures and policies;
•challenges caused by distance, language, and cultural differences;
•harm to our existing business relationships with business partners and customers as a result of the acquisition;
•potential loss of key employees;
•use of resources that are needed in other parts of our business and diversion of management and employee resources;
•inability to recognize acquired deferred revenue in accordance with our revenue recognition policies; and
•use of substantial portions of our available cash or the incurrence of debt to consummate the acquisition.
Acquisitions also increase the risk of unforeseen legal liability, including for potential violations of applicable law or industry rules and regulations, arising from prior or ongoing acts or omissions by the acquired businesses that are not discovered by due diligence during the acquisition process. We may have to pay cash, incur debt or issue equity or equity-linked securities to pay for any future acquisitions, each of which could adversely affect our financial condition or the market price of our stock. The sale of equity or issuance of equity-linked debt to finance any future acquisitions could result in dilution to stockholders. The incurrence of indebtedness would result in increased fixed obligations and could also include covenants or other restrictions that would impede our ability to manage our operations. Any of the foregoing could have a material adverse effect on us.
Our sales cycles can be long and unpredictable, and our sales efforts require considerable time and expense, which contribute to the unpredictability and variability of our financial performance and may adversely affect our profitability.
The timing of our sales and related revenue recognition is difficult to predict because of the length and unpredictability of the sales cycle for our products and services. We are often required to spend significant time and resources to better educate and familiarize potential customers with the value proposition of our products and services. Decisions to purchase a license for access to and use of our data and information products and services are often subject to a variety of other considerations that may extend the length of our sales cycle, including timing of our customers’ budget cycles and approval processes, budget constraints, extended negotiations, user surveys, administrative processing, development and publication of competitive procurement solicitations and adjudication to award, and other delays. In particular, government departments and agencies, both in the U.S. and in other countries, generally evaluate our products for critical, strategic applications. As a result, the piloting, testing, and evaluation process can be extensive, and orders are often dependent on the availability of sufficient budgeted funds.
The length of our sales cycle, from initial demonstration to sale of our products and services, tends to be long and varies substantially from customer to customer. In the United States, our sales cycles may be extended if the U.S. Government is required to operate on funding levels equivalent to its prior fiscal year pursuant to a “continuing resolution.” Our international government customers have varying degrees of
procurement administration resources and maturity of their procurement administrations, and capacity building is sometimes necessary to bridge gaps for emerging partners, which can make the sales cycle a long and resource intensive exercise as compared to U.S. enterprise standards. In addition, because decisions to purchase our platforms involve significant financial commitments, potential customers generally evaluate our platforms at multiple levels within their organization, each of which often have specific requirements, and typically involve their senior management. Additionally, changes in government officials may result in us losing project champions and requiring us to re-start the engagement cycle with new officials. As a result, it is difficult to predict when or if a sale to a potential customer will occur. All of these factors can contribute to fluctuations in our financial performance and increase the likelihood that our operating results in a particular quarter will fall below investor expectations. If we are unsuccessful in closing sales after expending significant resources, or if we experience delays for any of the reasons discussed above, our future revenue and operating expenses may be materially adversely affected.
If our existing customers do not make subsequent purchases from us or renew their contracts with us, or if our relationships with our largest customers are impaired or terminated, our revenue could decline, and our results of operations could be adversely impacted.
We derive a significant portion of our revenue from existing customers that expand their relationships with us. Our contracts typically begin with a “test and evaluate” phase and then expand to operational contracts for a subset of products, before expanding to additional products and a greater scope of analytics. Increasing the size and number of our existing customers is a major part of our growth strategy. We may not be effective in executing this or any other aspect of our growth strategy. Additionally, our customers may choose to reduce their spend with us or terminate their agreements with us, which would reduce our anticipated future payments or revenue from these customers and could require us to refund previously paid amounts to these customers.
Our contract terms with our customers vary significantly in length and in certain cases require the customer to opt-in to extend the term due to procurement requirements. Our customers have no obligation to renew, upgrade, or expand their contracts with us after the terms of their existing contracts have expired. In addition, many of our customer contracts permit the customer to terminate their contracts with us with notice periods of varying lengths, and our contracts with U.S. Government customers may be terminated for convenience. If one or more of our customers terminate their contracts with us, whether for convenience, for default in the event of a breach by us, or for other reasons specified in our contracts, as applicable; if our customers elect not to renew their contracts with us; if our customers renew their contractual arrangements with us for shorter contract lengths or for a reduced scope; or if our customers otherwise seek to renegotiate terms of their existing contracts on terms less favorable to us, our business and results of operations could be adversely affected. This adverse impact would be even more pronounced for customers that represent a material portion of our revenue or business operations.
Our ability to renew or expand our customer relationships may decrease or vary as a result of a number of factors, including our customers’ satisfaction or dissatisfaction with our products and services, the frequency and severity of errors or disruptions in our products and services, our pricing, the effects of general economic conditions, competitive offerings or alternatives, reductions in our customers’ spending levels, or the impact of regulatory restrictions. Our business, financial condition, and results of operations would be adversely affected if we face difficulty collecting our accounts receivable from our customers or if we are required to refund customer deposits. Achieving renewal or expansion of customer relationships may require us to increasingly engage in sophisticated and costly sales efforts that may not result in additional sales. In addition, our customers’ decisions to expand the use of our products and services depends on a number of factors, including general economic conditions, the quality of our products and services, and our customers’ satisfaction with our products and services. If our efforts to expand within our existing customer base are not successful, our business may suffer.
We may experience losses from fixed-price contracts.
We generate revenue from single and multi-year fixed-price contracts with some of our customers, pursuant to which we have agreed to perform the work for a fixed price and, accordingly, realize all of the profit or loss resulting from variations in the costs of performing the contract. These contracts carry the risk of potential cost overruns because we assume the entire cost burden. As a result, we assume greater financial risk on fixed-price contracts than on other types of contracts because if we do not estimate costs accurately or control costs during performance of a fixed-price contract, it may significantly reduce our net profit or cause a loss on the contract. Unforeseen events, such as technological difficulties, fluctuations in the price of raw materials, significant increases in or sustained periods of increased inflation, or problems with our suppliers and cost overruns, can result in the contractual price becoming less favorable or even unprofitable to us over time. Under our fixed-price contracts, we commit to delivering a specified number of customer-tasked signal collections. If any of these collections fail, we may be required to re-process such collections at our own expense. We cannot assure you that our estimates will be adequate or that substantial losses on fixed-price contracts will not occur in the future. Further, certain of our contracts do not permit us to recover increases in raw material prices, taxes, or labor costs, which could further decrease our profitability with respect to such contracts.
Our customers also may seek to negotiate non-traditional contract provisions or contract types. These risks may cause us not to bid on certain future programs, which could adversely affect our future growth prospects and financial performance. In addition, even if we effectively manage program life-cycle and sustainment costs and meet customer affordability targets, our customers may elect to recompete programs at the end of existing contracts, which may result in a lost business opportunity or reduce operating margins. From time to time, the U.S. Government also has proposed contract terms, imposed internal policies, or taken positions that represent fundamental changes from historical practices. Any of the risks described above could materially and adversely affect us.
We operate in competitive industries.
We operate in highly competitive industries that are evolving, and many of our competitors and potential competitors are larger and have substantially greater resources than we have. Our products and services compete with satellite and data collection, processing and analytics products and services offered by a range of private and government providers, including our customers’ existing internal systems. Our current or future competitors may have significant advantages, including, among other things, strong customer relationships, more experience with regulatory compliance, greater financial and management resources, and access to technologies not available to us. Our current and future competitors may be able to adapt more quickly to changing technology or market conditions or may be able to devote greater resources to the development, promotion, and sale of their products. Such competitors may also have ready access to capital to fund their activities, which could provide a competitive advantage relative to us, as we will need financing to fund our development activities. In addition, competition may increase and intensify as more or larger competitor companies, including those formed through joint ventures, or consolidation, enter our markets. Additionally, we may be required to make substantial additional investments in our research, development, services, marketing, and sales functions in order to respond to competition and maintain and expand our market share, and there can be no assurance that we will be able to compete successfully in the future.
Further, many of our contracts and task orders with the federal government are awarded through a competitive bidding process, which is complex and sometimes lengthy. To the extent there is any reduction in the overall number of government contracts, as a result of shifting government priorities or otherwise, we may face increased competition. Additionally, due to competitive pricing pressures, such as new product introductions by us or our competitors, the selling price of our products and services may decrease. If we are unable to offset decreases in our average selling prices by increasing our sales volumes or by adjusting our product mix, our revenue and operating margins may decline and our financial position may be harmed.
The U.S. Government and international governments may develop, construct, launch and operate their own satellites with SIGINT capacity and other capabilities comparable or similar to ours, which could reduce their need to rely on us and other commercial suppliers. In addition, such governments could sell or provide free of charge data from their satellites and thereby compete with our products and services.
In addition, our international competitors currently may benefit from protective measures by their home countries where governments are providing financial support, including significant investments in the development of new technologies or the imposition of trade restrictions. Government support of this nature greatly reduces the commercial risks associated with technology development activities for these competitors.
Some of our competitors have made or could make acquisitions of businesses that allow them to offer more competitive and comprehensive solutions. As a result of such acquisitions, our current or potential competitors may be able to accelerate the adoption of new technologies that better address customer needs, devote greater resources to bring these products and services to market, initiate or withstand substantial price competition, or develop and expand their product and service offerings more quickly than we do. These competitive pressures in our market or our failure to compete effectively may result in fewer orders, reduced revenue and margins, and loss of market share. If we are unable to compete successfully, or if competing successfully requires us to take costly actions in response to the actions of our competitors, our business, financial condition, and results of operations could be adversely affected.
If we are not able to maintain and enhance our brand and reputation, including as a result of news and social media coverage on any incident involving us, our competitors, or our customers, our business and results of operations may be adversely affected.
Our business depends on our reputation as a trusted SIGINT partner to U.S. Government defense, intelligence, and national security agencies and allied international government customers. To continue to be successful, we must maintain and enhance our brand identity and reputation. The successful promotion of our brand depends upon our ability to continue to offer high-quality products and services, maintain strong relationships with our U.S. and international government customers, and others, while differentiating our platform from those of our competitors.
Unfavorable media coverage may adversely affect our brand and reputation. We are at risk of adverse publicity stemming from any public incident involving us, our employees, our competitors or customers. Even an isolated incident or the aggregate effect of individually insignificant incidents can erode trust and confidence, particularly if such incident or incidents result in adverse publicity, governmental investigations, or litigation. Any reputational harm to our business or industry could tarnish our brand or cause customers with existing contracts with us to cancel their contracts, and lead to a material adverse effect on our business, and financial condition and results of operations. The insurance we carry may be inapplicable or inadequate to cover any such incident, accident, or catastrophe. In the event that our insurance is inapplicable or not adequate, we may be forced to bear substantial losses from such incident, adverse media, or accident.
Additionally, publicly available information regarding our business has historically been limited, in part due to the sensitivity of our work with customers or contractual requirements limiting or preventing public disclosure of certain aspects of our work or relationships with certain customers. As our business grows, we may attract attention from news and social media outlets, including unfavorable coverage and public criticism, including from political and social activists. If such news or social media coverage presents, or relies on, inaccurate, misleading, incomplete, or otherwise damaging information regarding us or our leadership, such coverage could damage our reputation in the industry and with current and potential customers, employees, and investors, and our business, financial condition, results of operations, and growth prospects could be adversely affected. Due to the sensitive nature of our work and our confidentiality obligations, we may be unable to or limited in our ability to respond to such harmful coverage. Actions we may take in response to media coverage, activism, or to protect from security risks, may divert resources and our management’s attention, increase certain operating expenses, and further
affect our public perception. Any harm to our reputation could cause certain customers to cease doing business with us or impair our ability to attract new customers, diminish our ability to recruit, hire, or retain employees; undermine our standing in professional communities to which we contribute and from which we receive expert knowledge; or prompt us to cease doing business with certain customers. Any of these factors could adversely impact our business, financial condition, and results of operations.
We have limited experience with respect to determining the optimal prices and pricing structures for our products and services.
We have in the past changed, and expect that we may need to, in the future, change our pricing model from time to time, including as a result of competition, global economic conditions, reductions in our customers’ spending levels generally, changes in product mix, pricing studies or changes in how information technology infrastructure is broadly consumed. Similarly, as we introduce new products and services, or as a result of the evolution of our existing products and services, we may have difficulty determining the appropriate price structure for our products and services. In addition, as new and existing competitors introduce new products or services that compete with ours, or revise their pricing structures, we may be unable to attract new customers at the same price or based on the same pricing model as we have used historically. Moreover, as we continue to target selling our products and services to larger organizations, these larger organizations may demand substantial price concessions. As a result, we may be required from time to time to revise our pricing structure or reduce our prices, which could adversely affect our business, financial condition, and results of operations.
At times, we rely on a single vendor or a limited number of vendors to provide certain key products or services and the inability of these key vendors to meet our needs could have a material adverse effect on our business.
Historically, we have contracted with a single vendor or a limited number of vendors to provide certain key products or services, such as computing infrastructure, launch services, satellite components, ground network services and low-latency broadband connectivity. In addition, our manufacturing operations depend on specific technologies and companies for which there may be a limited number of vendors. Our business, financial position, and results of operations may be adversely affected if these vendors are unable to meet our needs because they fail to perform adequately, are unable to satisfy new technological requirements, or are unable to dedicate engineering and other resources necessary to provide the contracted services. While alternative sources for these products, services, and technologies may exist, we may not be able to develop these alternative sources quickly and cost effectively, resulting in unfavorable pricing and delivery timelines, which could materially impair our ability to operate our business. Furthermore, these vendors may request changes in pricing, payment terms or other contractual obligations, which could cause us to make substantial additional investments.
We may not be able to convert our projects in backlog, including funded backlog, into revenue.
Our backlog is comprised of legally binding contracts that are expected to result in future revenue, and include contracts that have been formally contracted, firm contracts that contain remaining performance obligations, including the cancellable portion of the contract value for contracts that provide the customer with a right to terminate for convenience without incurring a substantive termination penalty, and sole source award IDIQ contracts. Backlog includes both single and multi-year awards, and fluctuations in backlog are driven primarily by the timing of large program wins. Our backlog may also include, as of any date of estimation, change orders for any project that have been confirmed, either in writing or verbally, or formally contracted. Change orders may increase or decrease the amount we ultimately bill for a particular project, causing us to realize more or less revenue from a project than was reflected in our backlog as of the date of estimation. Additionally, prior to categorizing a project as part of our backlog, we maintain a running list of projects that are in an advanced stage of active bidding and discussion, including potential change orders for current projects, but for which the customer has not yet confirmed the commercial terms, the value of the contract and/or the scope of our work. These projects
are tracked for project planning and budgeting of the business. Once the terms of these projects are further progressed in line with our backlog criteria, they are recorded in our backlog.
In general, our customers have the right to cancel their contracts under termination for convenience clauses. If a customer cancels a contract before the full exercise of the agreement, we may not receive the full revenue from these orders, but would recognize revenue under the agreement of our cost basis with reasonable margin to the extent of progress performed on the contract. In addition, our backlog is typically subject to large variations from quarter to quarter and comparisons of backlog from period to period are not necessarily indicative of future revenues. Some contracts comprising the backlog, including funded backlog, are for programs scheduled many years in the future, and the economic viability of contractual counterparties is not guaranteed over time. Moreover, changes in the defense priorities of government customers could cause funding to be reallocated to address other emerging threats. As a result, the contracts comprising our backlog may not result in actual revenue in any particular period, or at all, and the actual revenue from such contracts may differ from our backlog estimates. The timing of receipt of revenues, if any, on projects included in both the funded and unfunded backlog could change because many factors and adjustments to contracts may also occur. The failure to realize some portion of our backlog could adversely affect our financial performance.
In addition, our backlog is subject to meaningful customer concentration risk. As of December 31, 2025, the top ten customers in our backlog represented approximately 96% of the total dollar value of our backlog. Any disruption in our business with those customers, whether as a result of changes in such customers’ demand for products or services, adverse changes in the customer’s industry generally or other challenges in securing or renewing contracts, could have a material adverse impact on us.
We may require additional capital to support business growth, and we cannot be sure that additional financing will be available.
We intend to continue to make investments to support our business growth and may require additional funds to support this growth and respond to business challenges or opportunities, including the need to develop our services, expand our inventory, enhance our operating infrastructure, expand the markets in which we operate and acquire complementary businesses and technologies. We expect to need to engage in equity or debt financings to secure additional funds in the future. If we raise additional funds through further issuances of equity or convertible debt securities, our existing stockholders could suffer significant dilution and any new equity securities we issue could have rights, preferences, and privileges superior to those of holders of our common stock. Any debt financing secured by us in the future could involve restrictive covenants relating to our capital-raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities. In addition, we may not be able to obtain additional financing on terms favorable to us, if at all, including for reasons outside our control such as negative economic conditions. If we are unable to obtain adequate financing or financing on terms satisfactory to us when we require it, our ability to continue to support our business growth and to respond to business challenges could be significantly limited and our business and prospects could fail or be adversely affected.
Adverse global market, economic and political conditions, including military conflicts or terrorist acts, pandemics, and other catastrophic events could have a material adverse effect on us.
Our results of operations are materially affected by market, economic, political conditions, pandemics, and other catastrophic events in the United States and internationally, including inflation, deflation, interest rates, supply chain disruptions, tariffs and trade wars, extended government shutdowns, global political and economic uncertainty, geopolitical tensions, availability of capital, energy and commodity prices, and the effects of governmental initiatives to manage economic conditions. Current or potential customers may delay or decrease spending on our products and services as their business and/or budgets are impacted by economic conditions. The inability of current and potential customers to pay us for our products and services may adversely affect our earnings and cash flows.
Terrorist attacks, actual or threatened acts of war or the escalation of current hostilities, such as the ongoing conflicts between Russia and Ukraine and in the Middle East, rising tensions in the South China Sea, or any other military or trade disruptions impacting our domestic or foreign suppliers or customers, may create volatility and disruption in the United States and global businesses and markets. Although certain aspects of the effects of these conflicts may provide potential new opportunities for our business, we cannot guarantee that the net impact of any such events will not be materially negative or have an adverse impact on our results of operations. In particular, these or other conflicts have led and could lead to further regional instability, market disruptions, embargoes, economic sanctions, geopolitical shifts and adverse effects on macroeconomic conditions, security conditions, currency exchange rates, and the supply chain, which could create or exacerbate risks facing our business, including making it more difficult for us to raise capital.
Moreover, to the extent challenging macroeconomic conditions adversely affect our business, financial condition, and results of operations, these events, alone or in combination, may also have the effect of heightening many of the other risks described in this “Risk Factors” section. Changes in tax laws, effective tax rates or adverse outcomes from examinations of our income or other tax returns could adversely affect our results of operations and financial condition.
Tax laws are complex and subject to subjective evaluations and interpretative decisions, and we may be subject in the future to tax audits with respect to our compliance with direct and indirect taxes. Changes in tax laws and policies and any changes in our effective tax rates or tax liabilities may materially and adversely affect our financial condition, results of operations and cash flows. Our future effective tax rates could be subject to volatility or adversely affected by a number of factors including:
•changes in the valuation of our deferred tax assets and liabilities;
•expected timing and amount of the release of any tax valuation allowances;
•expansion into or future activities in various jurisdictions;
•the availability of tax deductions, credits, exemptions, refunds and other benefits to reduce tax liabilities;
•tax effects of share-based compensation; and
•changes in tax laws, tax regulations, accounting principles, or interpretations or applications thereof.
Many countries have recently enacted, or are actively considering changes to existing tax laws that, if enacted, could increase our tax obligations and compliance costs. For example, legislation commonly referred to as the One Big Beautiful Bill Act, enacted in 2025 (the “OBBBA”), along with other recent U.S. federal tax reform legislation, has resulted in significant changes to the taxation of business entities, including, among other changes, changes to the taxation of income derived from international operations, changes in the deduction and amortization of research and development expenditures, and limitations on the deductibility of business interest. The Organisation for Economic Co-operation and Development (the “OECD”) has introduced significant changes to the international tax law framework through the Pillar Two rules. These rules were established to create a 15% minimum tax rate for certain multinational enterprises. Many countries to whom we license our data and intelligence products have enacted, or are in the process of enacting, core elements of the Pillar Two rules, and further elements are expected to be enacted in future in these jurisdictions and elsewhere. In August 2022, the Inflation Reduction Act (the “IRA”) was signed into law in the United States. The IRA made a number of changes to U.S. tax laws, including adding a 15% minimum tax on adjusted financial statement income of certain large companies with average book income in excess of $1 billion (the “CAMT”).
While we are not currently within the scope of Pillar Two or the CAMT, we may in future be subject to either or both of them, and therefore suffer higher effective tax rates, potential tax disputes, and adverse impacts to our cash flows, tax liabilities, operating results, compliance costs, and financial position. In addition, legislative and other authorities both in the United States and in other countries regularly consider and may adopt changes to tax law, rules and policies, and we are not able to predict if or when any such changes will be made.
We often rely on generally available interpretations of applicable tax laws and regulations. We cannot be certain that the relevant tax authorities agree with our interpretation of these laws, or with the positions we have taken or intend to take on tax laws applicable to our regular business activities and extraordinary transactions. If our tax positions are challenged by relevant tax authorities, we could face long tax proceedings and the imposition of additional taxes, penalties and interest or the denial of tax benefits, which could require us to pay taxes that we currently do not collect or pay or increase the cost of our services to track and collect such taxes. Any of these risks could increase our cost of operations or our effective tax rate and have a negative effect on our business, financial condition, operating results, and cash flows.
International trade policies, including tariffs, sanctions, and trade barriers may adversely affect our business, financial condition, results of operations and prospects.
Substantial new tariffs, and other restrictive trade policies have created a dynamic and unpredictable trade landscape, which may adversely impact our business.
Current or future tariffs, embargoes, or other restrictive trade measures may significantly raise the costs of raw materials, components or finished goods, which may adversely impact both our product offerings and our operational expenses. Such cost increases may reduce our margins and require us to increase prices, which could harm our competitive position, reduce customer demand and damage customer relationships. Our manufacturers, suppliers, and distribution channels are also affected by the current trade environment, and we may experience supply chain disruptions as a result of increased costs and uncertainty, as well as risks to the long-term viability of key vendors, which may impact our ability to meet customer demand or manage inventory efficiently. Tariff and other trade-related cost pressures and supply chain disruptions may lead to reputational harm if we are unable to deliver products or services on expected timelines or if any price increases are poorly received by customers or business partners. In addition, our customers may be impacted by trade policies, which may result in decreased demand for our products or extended sales cycles as customers assess the impact of evolving trade policies on their operations and face increased costs or decreased revenue due to tariffs and trade restrictions.
Trade disputes, trade restrictions, tariffs, embargoes, sanctions, and other geopolitical tensions between the U.S. and other countries may also exacerbate unfavorable macroeconomic conditions including inflationary pressures, foreign exchange volatility, financial market instability, and economic recessions or downturns, which may also negatively impact customer demand for our products or services, delay purchases or renewals, limit expansion opportunities with customers, limit our access to capital, or otherwise negatively impact our business and operations. Ongoing tariff, trade restrictions and macroeconomic uncertainty has and may continue to contribute to volatility in the price of our common stock.
The complexity of announced or future tariffs may also increase the risk that we or our customers or suppliers may be subject to civil or criminal enforcement actions in the U.S. or foreign jurisdictions related to compliance with trade regulations. In addition, retaliatory trade policies or anti-U.S. sentiment in certain regions, including with our allies, whether driven by trade tensions, political disagreements, or regulatory concerns may make customers, foreign governments, and investors more hesitant to engage with, purchase from or invest in U.S. firms. This may lead to increased preference for local competitors, changes to government procurement policies, heightened regulatory scrutiny, decreased intellectual property protections, delays in regulatory approvals or other retaliatory regulatory non-tariff policies, which
may result in heightened international legal and operational risks and difficulties in attracting and retaining non-U.S. customers, suppliers, employees, partners, and investors.
Ongoing uncertainty regarding trade policies may also complicate our short- and long-term strategic planning, and that of our partners and customers, including decisions regarding hiring, product strategy, capital investment, supply chain design, and geographic expansion.
While we continue to monitor trade developments, the ultimate impact of these risks remains uncertain and any prolonged economic downturn, escalation in trade tensions, or deterioration in international perception of U.S.-based companies could materially and adversely affect our business, results of operations, financial condition and prospects. In addition, tariffs, and other trade developments have and may continue to heighten the risks related to the other risk factors described elsewhere in this prospectus.
We may not enter into relationships with potential customers if we consider their activities to be inconsistent with our organizational mission or values.
We do not enter into business with customers or governments whose positions or actions we consider inconsistent with our mission or values as a partner of the United States and its allies, committed to advancing national interests. Our decisions to not enter into these relationships may not produce the long-term financial benefits and results that we expect, in which case our growth prospects, business, and results of operations could be harmed. Although we endeavor to do business with customers and governments that are aligned with our mission and values, we cannot predict how the activities and values of our government and private sector customers will evolve over time, and they may evolve in a manner inconsistent with our mission and/or the national interests of the United States and its allies.
Subscription-based revenues may increase variability and reduce the predictability of our results.
We are increasingly offering our data and analytics through subscription-based arrangements, rather than on a customer-tasked basis. While subscriptions are intended to provide more predictable and recurring revenues over time, our results will depend on our ability to attract new subscribers and retain and renew existing subscriptions at anticipated levels. Subscribers may choose not to renew, may cancel or downgrade their subscriptions or may reduce usage in response to budgetary constraints, changes in mission requirements, procurement cycles or perceptions of the value of our offerings relative to alternative data sources.
In addition, subscription contracts may be subject to termination for convenience, non-appropriation or similar rights, particularly in the case of government or government-adjacent customers, and may involve fixed pricing or usage limitations that constrain our ability to offset cost increases or fluctuations in demand. If we are unable to maintain high renewal rates, effectively manage churn or successfully transition customers from task-based purchases to subscription models, our revenue, cash flows and operating results could become more volatile and could be adversely affected.
Risks Related to Our Government Contracts
The majority of our business depends on sales to the public sector, and our failure to receive and maintain government contracts or changes in policies of the public sector has adversely affected and could continue to adversely affect our business, results of operations, financial condition, and growth prospects.
We derive the majority of our revenue from contracts with U.S. and international governments and government agencies, and we believe that the success and growth of our business will continue to depend on our successful procurement of government contracts. Our actual or perceived relationship with the U.S. Government could adversely affect our business prospects in certain non-U.S. geographies or with certain non-U.S. Governments, agencies or other customers, including as a result of geopolitical tensions, changes in U.S. foreign policy or national security priorities, or efforts by the U.S. Government
to restrict our foreign business activities. Sales to such government agencies are subject to a number of challenges and risks. Selling to government agencies can be highly competitive, expensive, and time-consuming, often requiring significant upfront time and expense without any assurance that these efforts will generate a sale. We also must comply with laws and regulations relating to the formation, administration, and performance of contracts, which provide public sector customers rights, many of which are not typically found in commercial contracts. Accordingly, our business, financial condition, results of operations, and growth prospects may be adversely affected by certain events or activities, including:
•changes in fiscal or contracting policies or decreases in available government funding, including as a result of efforts by the federal government to analyze and enhance its operational efficiency;
•changes in government programs or applicable requirements;
•restrictions in the grant of personnel security clearances to our employees;
•ability to achieve or maintain facility clearances required to perform on classified contracts for U.S. federal government and non-U.S. government agencies;
•government investigations and inquiries, which could result in fines and penalties;
•ability to achieve or maintain one or more government certifications;
•changes in the political environment, including before or after a change to the leadership within the government administration, or due to ongoing conflicts such as the Russia-Ukraine conflict and related economic sanctions, the ongoing conflict and regional instability in the Middle East, rising tensions in the South China Sea, and any resulting uncertainty or changes in policy or priorities and resultant funding;
•changes in the government’s attitude towards the capabilities that we provide;
•changes in the government’s attitude towards us as a company or our platforms as viable or acceptable software solutions;
•appeals, disputes, or litigation relating to government procurement, including bid protests by unsuccessful bidders on potential or actual awards of contracts to us or our partners by the government;
•the adoption of new laws or regulations or changes to existing laws or regulations, including as may relate to the implementation of AI by federal agencies;
•budgetary constraints, including automatic reductions as a result of “sequestration” or similar measures and constraints imposed by any lapses in appropriations for the federal government or certain of its departments and agencies, for example in connection with an extended federal government shutdown;
•influence by, or competition from, third parties with respect to pending, new, or existing contracts with government customers;
•changes in political or social attitudes with respect to security or data privacy issues;
•potential delays or changes in the government appropriations or procurement processes, including as a result of events such as war, incidents of terrorism, natural disasters, and public health concerns or epidemics; and
•increased or unexpected costs or unanticipated delays caused by other factors outside of our control.
Such events or activities, among others, have caused and could continue to cause governments and governmental agencies to delay or refrain from purchasing our platforms and services in the future, reduce the size or payment amounts of purchases from existing or new government customers, or otherwise have an adverse effect on our business, results of operations, financial condition, and growth prospects.
We depend on the U.S. Government for a substantial portion of our business. Changes in the U.S. Government’s priorities and spending, or delays or reductions in spending, could have a material adverse effect on us.
During the year ended December 31, 2025, 61% of our revenue was derived from contracts with the U.S. Government and its agencies or from subcontracts with other U.S. Government contractors. We cannot predict the impact on existing, follow-on, replacement or future programs from potential changes in the threat and global security environment, defense spending levels, government and budgetary priorities, political leadership, procurement practices and strategy, inflation and other macroeconomic trends, military strategy, or broader changes in social, economic, security, or political demands and priorities.
A significant shift in government priorities, programs, strategies or delays or reductions in spending could have a material adverse effect on us. A significant decline in government expenditures, a shift of expenditures away from programs that support the industry in which we operate or related industries or a change in federal government contracting policies could cause federal government agencies to reduce their purchases under contracts, to exercise their right to terminate contracts at any time without penalty or not to exercise options to renew contracts, any of which could result in decreased sales of our products, and could adversely impact the trading price of our common stock. In addition, if government budgets are not approved in a timely fashion, our U.S. Government customers may not be able to start new programs and may not have adequate funding for existing programs, which could impact the progress in achieving certain milestones under our contracts and our business, results of operations, and financial condition.
Any disruptions in federal government operations could have a material adverse effect on our revenues, earnings, and cash flows. A prolonged failure to maintain significant U.S. Government operations, particularly those pertaining to our business, could materially and adversely affect us. Continued uncertainty related to recent and future extended government shutdowns, the budget and/or the failure of the government to enact annual appropriations, such as long-term funding under a “continuing resolution”, could have a material adverse effect on us. Additionally, disruptions in government operations may negatively impact regulatory approvals and guidance that are important to our operations.
We are subject to certain other unique business risks as a result of supplying services to the U.S. Government.
Companies engaged in supplying intelligence and defense-related services to U.S. Government agencies are subject to business risks specific to such industries. The U.S. Government has continued to reduce the percentage of contracted services in favor of more federal employees through an initiative called “in-sourcing.” U.S. Government in-sourcing could result in loss of business opportunities and personnel. Over time, in-sourcing could have an adverse effect on our business, financial condition, and results of operations. Specifically, as a result of in-sourcing, government procurements for services could be fewer and smaller in the future. In addition, work we currently perform could be in-sourced by the federal government and, as a result, our revenues could be reduced. Moreover, our employees could also be hired by the government. This loss of our employees would necessitate the need to retain and train new employees. Accordingly, the effect of in-sourcing or the continuation of in-sourcing at a faster-than-expected rate could have a material adverse effect on our business, financial condition, and results of operations. Moreover, U.S. Government purchasing regulations contain a number of operational requirements that apply to entities engaged in government contracting. Failure to comply with such
government contracting requirements could result in civil and criminal penalties that could have a material adverse effect on our business, financial condition, and results of operations.
If a government inquiry or investigation uncovers improper or illegal activities, we could be subject to civil or criminal penalties or administrative sanctions, including contract termination, fines, forfeiture of fees, suspension of payment, U.S. False Claims Act allegations (which can include civil penalties and treble damages) and suspension or debarment from doing business with U.S. Government agencies, any of which could materially adversely affect our reputation, business, financial condition, and results of operations. The U.S. False Claims Act prohibits, among other things, any person or entity from knowingly presenting, or causing to be presented, a false or fraudulent claim for payment or approval to the federal government or knowingly making, using, or causing to be made or used a false record or statement material to a false or fraudulent claim to the federal government. A claim includes “any request or demand” for money or property presented to the U.S. Government. Intent to deceive is not required to establish liability under the U.S. False Claims Act. In addition, the U.S. False Claims Act includes a whistleblower provision that allows private citizens to bring claims on behalf of the U.S. Government alleging violations of the law. Whistleblowers may be entitled to up to as much as thirty percent (30%) of the government’s financial recovery resulting from such claims. This incentivizes potential whistleblowers to file complaints in federal court, which complaints are relied upon heavily by the government to investigate and prosecute allegations of violations of the U.S. False Claims Act. U.S. enforcement authorities or private whistleblowers acting on behalf of the U.S. Government may file complaints under the U.S. False Claims Act alleging that we have submitted false claims or caused one or more of our customers to submit false claims due to alleged provision of false or misleading information to our customers or other third parties. For example, in September 2025, our subsidiary, ISA, received a civil investigative demand (the “CID”) from the U.S. Department of Justice, Civil Division, in connection with an investigation under the federal U.S. False Claims Act (the “Investigation”). The CID requests information and documents focused on ISA’s compliance with cybersecurity requirements of the U.S. Government in the performance of certain of ISA’s government contracts. We are cooperating with the Investigation. No assurance can be given as to the timing or outcome of the Investigation. Depending on the outcome of the Investigation, there may be a material impact on our business, results of operations, financial condition, or cash flows.
Our contracts with the U.S. Government and certain international customers may be terminated by the U.S. Government and such international customers at any time, which could have a material adverse effect on us.
Government contract laws and regulations can impose terms or obligations that are different than those typically found in commercial transactions. For instance, the U.S. Government may unilaterally:
•suspend us from receiving new contracts based on alleged violations of procurement laws or regulations;
•terminate existing contracts for any reason or no reason at all;
•revoke or refuse to issue required security clearances;
•reduce the value of existing contracts; and
•audit our contract-related costs and fees, including allocated indirect costs.
U.S. Government contracts can be terminated by the U.S. Government at its convenience without notice, and generally, prime contractors have a similar right under subcontracts related to government contracts. Upon termination for convenience of a fixed-price contract, we are usually entitled to receive the purchase price for delivered items. If we enter into cost-reimbursable contracts in the future, upon termination for convenience of such contracts, we would usually be entitled to a portion of the fee plus reimbursement of allowable costs, which would include our cost to terminate agreements with our suppliers and subcontractors. However, U.S. Government programs do not always have sufficient funds
appropriated to cover the termination costs if the government were to terminate for convenience. Under such circumstances, the U.S. Government could assert that it is not required to appropriate additional funding, which would negatively affect our expected profit and cash flows.
In the case of our termination for default, the U.S. Government could make claims to reduce the contract value or recover its procurement costs and could assess other special penalties. In addition, a termination arising out of our default may expose us to liability and have a material adverse effect on our ability to compete for future contracts and orders.
Our U.S. Government programs often operate for periods of time under Undefinitized Contract Actions (“UCAs”), which means that we begin performing our obligations before the parties agree to terms, specifications and price. The U.S. Government has (and has exercised in the past) the ability to unilaterally definitize contracts which, absent a successful appeal, obligates us to perform under terms and conditions imposed by the U.S. Government. This can affect our ability to negotiate mutually agreeable contract terms and, if a contract is unilaterally imposed upon us, it may impose burdensome terms and negatively affect our expected profit and cash flows on a program.
Certain of our U.S. Government contracts span one or more base years and include multiple option years. The U.S. Government may decide not to exercise option periods, which could result in a loss of expected sales or profits. In addition, the U.S. Government may decide to exercise option periods for contracts under which it is expected that our costs may exceed the contract price or ceiling, which could result in losses or unreimbursed costs.
In addition to the U.S. Government, many of our contacts with international customers can be terminated at their convenience without notice. The termination of contracts by the U.S. Government or international customers could have a material adverse effect on our business.
U.S. Government contracts subject to a competitive bidding process can consume significant resources without generating any revenue.
We derive significant revenue from U.S. Government contracts that were awarded through a competitive bidding process. Much of the business that we expect to seek in the foreseeable future likely will be awarded through competitive bidding. Competitive bidding presents a number of risks, including the need to bid on programs in advance of the completion of their design, which may result in unforeseen technological difficulties and cost overruns, the substantial cost spent to prepare bids and proposals for contracts that may not be awarded to us; the need to estimate accurately the resources and cost structure that will be required to service any contract we are awarded; and the expense and delay that may arise if our competitors protest or challenge contract awards made to us pursuant to competitive bidding. We may not be provided the opportunity to bid on contracts that are held by other companies and are scheduled to expire if the government extends the existing contract. If we are unable to win contracts that are awarded through a competitive bidding process, our business, results of operations, prospects, and financial condition will be materially adversely affected.
The U.S. Government may procure non-commercial developmental services rather than commercial products, which could materially impact our future U.S. Government business and revenue.
U.S. Government agencies, including our customers, often award large developmental item and service contracts to build custom satellite systems rather than firm fixed-price contracts for commercial products. We sell commercial items and services and do not typically contract for non-commercial developmental services. The U.S. Government is required to procure commercial items and services to the maximum extent practicable in accordance with FASA, 10 U.S.C. § 2377; 41 U.S.C. § 3307, and the U.S. Government may instead decide to procure non-commercial developmental items and services if commercial items and services are not practicable. In order to challenge a government decision to procure developmental items and services instead of commercial items and services, we would be required to file a bid protest at the agency level and/or with the Government Accountability Office. This
can result in contentious communications with government agency legal and contracting offices, and may escalate to litigation in federal court. The results of any future challenges or potential litigation cannot be predicted with certainty, however, and any dispute or litigation with the U.S. Government may not be resolved in our favor; moreover, whether or not it is resolved in our favor, such disputes or litigation could result in significant expense and divert the efforts of our technical and management personnel. These proceedings could adversely affect our reputation and relationship with government customers and could also result in negative publicity, which could harm customer and public perception of our business. The enforcement of FASA has resulted in a significant increase in our business with the U.S. federal government. Any change in or repeal of FASA, or a contrary interpretation of FASA by a court of competent jurisdiction, would adversely affect our competitive position for U.S. federal government contracts.
We are subject to procurement laws and regulations, including those that enable the U.S. Government to terminate contracts for any reason or no reason at all. Our business and reputation could be materially and adversely affected if we or those we do business with fail to comply with these laws.
We must comply with laws and regulations relating to the award, administration and performance of U.S. Government contracts. In particular, we are subject to the procurement policies and procedures set forth in the FAR and its agency-specific supplemental regulations. The FAR and its supplements govern aspects of U.S. Government contracting, including contractor qualifications, acquisition procedures, solicitation provisions and contract terms. These and other requirements specific to U.S. Government contracts must be complied with for a contract to be awarded and the FAR provides for audits and reviews of contract procurement, performance and administration. A violation of these laws and regulations by us, our employees or others working on our behalf, a supplier or a joint venture partner could harm our reputation and result in negative consequences, including the imposition of fines and penalties, the termination of our contracts, suspension or debarment from bidding on or being awarded contracts, loss of our ability to export products or perform services and civil or criminal investigations or proceedings. In addition, costs to comply with new government regulations can increase our costs, reduce our margins and affect our competitiveness.
In addition, the U.S. Government could implement procurement policies that negatively impact our profitability or the ability to win new business. Changes in procurement policy favoring more incentive-based fee arrangements, different award fee criteria or government contract negotiation offers based upon the customer’s view of what our costs should be (as compared to our actual costs) may affect the predictability of our profit rates or make it more difficult to compete on certain types of programs.
Our business may be dependent upon our employees obtaining and maintaining required security clearances, as well as our ability to obtain security clearances for the facilities in which we perform sensitive government work.
Certain of our U.S. Government contracts require our employees to maintain various levels of security clearances, and we are required to maintain certain facility security clearances complying with government contracts requirements. The relevant government agencies have strict security clearance requirements for personnel who work on classified programs. Obtaining and maintaining security clearances for employees involves a lengthy process, and it is difficult to identify, recruit, and retain employees who already hold security clearances. If our employees are unable to obtain security clearances in a timely manner, or at all, or if our employees who hold security clearances are unable to maintain the clearances or terminate employment with us, then a customer requiring classified work could terminate the contract or decide not to renew it upon its expiration. In addition, certain contracts we currently hold, and we expect that many of the contracts on which we will bid, will require us to demonstrate our ability to obtain and maintain facility security clearances and employ personnel with specified types of security clearances. To the extent that we are not able to obtain and maintain facility security clearances or engage employees with the required security clearances for a particular contract, we may not be able to bid on or win new contracts, or effectively rebid on expiring contracts.
Some of our contracts with the U.S. Government are classified or contain sensitive non-shareable information, which may limit investor insight into portions of our business.
We derive a portion of our revenues from U.S. Government programs that are subject to security restrictions (e.g., contracts involving classified information, classified contracts, contracts containing sensitive non-shareable information, and classified programs) that preclude the dissemination of information that is classified for national security purposes. In the event of a security incident involving classified information, technology, facilities, or programs or personnel holding clearances, we may be subject to legal, financial, operational, and reputational harm. We are limited in our ability to provide details about these classified programs, their risks or any disputes or claims relating to such programs and may not disclose such information pursuant to SEC rules permitting confidential treatment of certain information. As a result, investors and others might have less insight into our classified programs than our other businesses and, therefore, less ability to fully evaluate the risks related to our classified business.
Some of our contracts with the U.S. Government allow it to use technical data developed under the contracts and to disclose technical data to third parties, which could harm our ability to compete.
Some of our contracts allow the U.S. Government to use, royalty-free, or have others use, collection data and technical data developed under those contracts on behalf of the government. Some of the contracts allow the federal government to disclose collection data, technical data, or computer software developed in the performance of the agreement or delivered to the government during the performance of the agreement without constraining the recipient on how that collection data, technical data, or computer software is used. The ability of third parties to use collection data, technical data, or computer software (for any purposes) and patents for government purposes creates the possibility that the government could attempt to establish alternative suppliers or to negotiate with us to reduce our prices. The potential that the government may release some of the collection data, technical data, or computer software without constraint creates the possibility that third parties may be able to use this technical data or computer software to compete with us, which could have a material adverse effect on our business, financial condition, and results of operations.
The U.S. Government’s budget deficit and the national debt, as well as any inability of the U.S. Government to complete its budget process for any government fiscal year could have an adverse impact on our business, financial condition, and results of operations.
The U.S. Government’s budget deficit and the national debt, as well as any inability of the U.S. Government to complete its budget process for any government fiscal year and consequently having to shut down or operate on funding levels equivalent to its prior fiscal year pursuant to a “continuing resolution,” could have an adverse impact on our business, financial condition, and results of operations. Government spending on spectrum exploitation in the space domain has surged in recent years, but considerable uncertainty exists regarding how future budget and program decisions will unfold, including the defense spending priorities of the U.S. Government, what challenges budget reductions will present for the defense industry and whether annual appropriations bills for all agencies will be enacted in future years due to many factors, including changes in the political environment, including before or after a change to the leadership within the government administration, and any resulting uncertainty or changes in policy or priorities and resultant funding. Any future shutdown of the federal government or failure to enact annual appropriations would have a material adverse impact on our liquidity, results of operations and financial condition.
The U.S. Government’s budget deficit and the national debt could have an adverse impact on our business, financial condition, and results of operations in a number of ways, including the following:
•The U.S. Government could reduce or delay its spending on, reprioritize its spending away from, or decline to provide funding for the government programs in which we participate, which could result in lower utilization of our services, additional price pressure or loss of our U.S. Government contracts;
•U.S. Government spending could be impacted by alternate arrangements to sequestration, which increases the uncertainty as to, and the difficulty in predicting, U.S. Government spending priorities and levels;
•Any U.S. Government default on its debt could have broad macroeconomic effects that could, among other things, raise our borrowing costs; and
•We may experience declines in revenue, profitability, and cash flows as a result of reduced or delayed orders or payments or other factors caused by economic difficulties of our customers and prospective customers, including U.S. federal, state, and local governments.
Furthermore, we believe continued budget pressures could have serious negative consequences for the security of the U.S., the defense industrial base and the customers, employees, suppliers, investors, and communities that rely on companies in the defense industrial base. Budget and program decisions made in this environment would have long-term implications for us and the entire defense industry.
Risks Related to Our International Operations
Our international business exposes us to risks relating to regulation, currency fluctuations, and political or economic instability in international markets, which could have a material adverse effect on us.
We conduct business internationally and intend to significantly expand our international business. International operations are subject to certain risks, such as unexpected changes in laws, policies, and regulatory requirements, including regulations related to trade controls; increased cost of localizing systems in foreign countries; increased sales and marketing and research and development expenses; availability of suitable export financing; timing and availability of export licenses; imposition or increases of taxes, tariffs, embargoes, and other trade barriers; political and economic instability; issues related to the political relationship between the United States and other countries; effects of austerity programs or similar significant budget reduction programs; potential preferences by prospective customers to purchase from local (non-U.S.) sources; and fluctuations in currency exchange rates, foreign exchange controls and restrictions on cash repatriation; compliance with international laws and U.S. laws affecting the activities of U.S. companies abroad; challenges in staffing and managing foreign operations; difficulties in managing distributors; requirements for additional liquidity to fund our international operations; difficulties in obtaining or enforcing judgments in foreign jurisdictions; ineffective legal protection of our intellectual property rights in certain countries; potentially adverse tax consequences; potential difficulty in making adequate payment arrangements; and potential difficulty in collecting accounts receivable. As a result of these and other risks, we may be unsuccessful in implementing our business plan for our SIGINT services business internationally, or we may not be able to achieve the revenues that we expect. In addition, some of our customer purchase agreements are governed by foreign laws, which may differ significantly from U.S. laws. We may be limited in our ability to enforce our rights under these agreements and to collect damages, if awarded. Any of the risks described above could materially harm our business and impair the value of our common stock.
Geopolitical tensions could reduce demand from U.S. allies and adversely affect our business.
Our business depends in part on defense and intelligence spending by the United States and its allies. Heightened geopolitical tensions, shifts in U.S. foreign policy or strains in relationships between the United States and its allies may lead to reduced military assistance or changes in procurement priorities for those partner nations. Any resulting decrease in defense budgets, delays in funding or reprioritization of resources by U.S. allies could reduce demand for our solutions, which could materially adversely affect our business, prospects, financial condition, and results of operations. In addition, shifting alliances among international customers or potential customers due to geopolitical conflict and regional instability could adversely affect our business, financial condition, and results of operations, including through loss of sales channels or limits on our ability to do business with certain allied governments as a result of performing services for other potentially adverse allied governments.
Our international sales and operations are subject to applicable laws relating to trade, including economic and trade sanctions and trade controls, the violation of which could adversely affect our operations.
We must comply with all applicable trade control laws and regulations of the United States and other countries, including the Arms Export Control Act, the International Traffic in Arms Regulations (the “ITAR”), the Export Administration Regulations (the “EAR”), and the economic and trade sanctions laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Trade Controls”). Export from the United States of our data products and services is regulated by the Directorate of Defense Trade Controls (“DDTC”) of the U.S. Department of State (“State”) as “defense services” that are subject to the strict export restrictions of the ITAR, which implement the Arms Export Control Act (the “AECA”).
Applicable Trade Controls restrict our ability to export our products and services to, or otherwise transact or deal with, certain countries, territories, and persons. For instance, our marketing to foreign customers, to the extent such marketing constitutes a “defense service,” and the delivery of our data and derivative products and information must be approved by DDTC pursuant to the requirements of the ITAR. Failure to obtain authorizations or to comply with the requirements of the authorizations or of the ITAR, or changes in U.S. export regulatory policy, particularly changes in the foreign policy or national security relationship between the U.S. and any of our export customers, could result in the imposition of restrictions on existing or future authorizations of export sales (including possible revocation of existing authorizations), which could adversely affect our business. Additionally, exports of our hardware and technology may be exported outside of the United States only with the required export authorizations, which may include license requirements in some circumstances. Our hardware, software, and technology are and may in the future be classified as dual-use items subject to the EAR or as defense articles subject to the ITAR. Our satellite payload software has been classified under the ITAR. Our satellite payload hardware, without payload software, has been classified under the EAR, and with our payload software, has been classified under the ITAR, and the services we provide may be subject to restrictions under both the EAR and ITAR. Our completely integrated satellites have been classified as subject to the EAR. While the launch of our satellites is not an export, provided that the satellites remain under our control, any transfer of title or control of our satellites to a foreign customer is subject to the export control of the EAR and may require a license. In addition, any item that currently is regulated for export pursuant to the EAR may, in the future, be reclassified as an article subject to the export control of the ITAR.
While we have implemented controls designed to promote and achieve compliance with applicable Trade Controls, in the past we have inadvertently exported certain defense services in violation of the ITAR, and there can be no guarantee that we will not inadvertently export certain defense services (or otherwise violate applicable Trade Controls) in the future. For example, we submitted the final reports of two voluntary self-disclosures concerning these activities to DDTC on March 18, 2022 and June 17, 2025, respectively. On March 25, 2025, DDTC issued a letter resolving the first voluntary self-disclosure without pursuing any civil monetary penalty against us. The second voluntary self-disclosure submitted to DDTC currently remains under review, and it is possible that DDTC may assess administrative fines or other penalties against us at the conclusion of its review.
Detecting, investigating, and resolving actual or alleged violations of Trade Controls can require a significant diversion of time, resources, and attention from senior management. In addition, noncompliance with these laws or regulations could result in significant fines, more onerous compliance requirements, more extensive debarments from export privileges, loss of export-related authorizations, reputational harm, adverse media coverage, and other collateral consequences. A violation or even an allegation of a violation of Trade Controls could have a material adverse effect on us.
Seeking to enforce an international contract through foreign courts may take significant amounts of time and expense with no certainty of success.
Our business could be adversely affected if we are required to enforce international contracts through foreign courts and we are unsuccessful or incur significant amounts of time and expenses seeking to do so. High litigation costs and long delays make resolving commercial disputes in foreign courts time consuming and expensive. Such costs can be difficult to calculate with certainty. In addition, in certain jurisdictions in which we currently conduct business or may seek to conduct business in the future, there can be uncertainty regarding the interpretation and application of laws and regulations relating to the enforceability of contractual rights.
Our international operations may subject us to potential adverse tax consequences.
We have international operations and intend to significantly expand our international business. Our corporate structure and associated transfer pricing policies consider the functions, risks, and assets of the various entities involved in our intercompany transactions. The amount of taxes we pay in different jurisdictions may depend on: the application of the tax laws of the various jurisdictions, including the United States, to our international business activities; changes in tax rates; new or revised tax laws or interpretations of existing tax laws, international standards and policies; and our ability to operate our business in a manner consistent with our corporate structure and intercompany arrangements. The taxing authorities of the jurisdictions in which we operate may challenge our methodologies for pricing intercompany transactions pursuant to our intercompany arrangements or disagree with our determinations as to the income and expenses attributable to specific jurisdictions. If such a challenge or disagreement were to occur, and our position was not sustained, we could be required to pay additional taxes, interest, and penalties, which could result in one-time tax charges, higher effective tax rates, reduced cash flows, and lower overall profitability of our operations. Our financial statements could fail to reflect adequate reserves to cover such a contingency.
Risks Related to Our Satellites
We rely on data collected from our satellites. If our satellite clusters and related technologies fail to operate as intended and we become limited in our ability to collect such data, it could have a material adverse effect on us.
If our satellite constellation, ground infrastructure, or HawkEye 360 Signal Processing Platform fail to operate as intended, our ability to collect and process SIGINT data could be materially impaired. Our products and services require advanced hardware and sensors that are exposed to severe launch and space environmental stresses that have affected, and may in the future continue to affect the performance of our products and their ability to collect data. Hardware component problems in space could lead to deterioration in performance or loss of functionality of our technology. In addition, human operators may execute improper commands that may negatively impact the technology’s performance. Exposure of our technology to an unanticipated catastrophic event, such as a meteor shower or a collision with space debris, could reduce the performance of, or completely destroy, the affected technology and have an adverse impact on our ability to collect data.
We cannot provide assurances that our satellite clusters will continue to operate successfully in space throughout their expected operational lifetimes, as a result of technical deficiencies or anomalies. We may experience other problems with our technology that may reduce its performance. If any one of our technologies is not fully operational, we may lose most or all of the revenue that otherwise would have been derived during such period. When our products fail to perform adequately, some of our contracts may require us to forfeit a portion of our expected profit, receive reduced payments, provide a replacement product or service, pay liquidated damages or penalty amounts to the customer, or reduce the price of subsequent sales to the same customer. Performance penalties may also be imposed when we fail to meet delivery schedules or other measures of contract performance. We do not generally insure against potential costs resulting from any required remedial actions or costs or loss of sales due to
postponement or cancellation of scheduled operations or product deliveries. Long-lived assets, including goodwill and intangible assets, are tested annually for impairment in the fourth quarter or whenever there is an indication that an asset may be impaired. Our inability to repair or replace a defective technology, or correct any other technical problem, in a timely manner could result in a significant loss of revenue or expose us to products liability. If any technology becomes impaired or is no longer functional, it would significantly impact our business, prospects, reputation, and profitability.
Any technology or hardware intended for use in space may be delayed, damaged or destroyed during launch or operations, which could materially and adversely affect our operations.
Launch delays are common and can result from manufacturing or supply chain delays, natural or man-made disasters, adverse weather conditions, facility issues, extended product development programs, delays relating to launch suppliers, delays in obtaining required regulatory approvals, unexpected national priority events, launch failures, and unexpected events or disruptions that occur during transportation of equipment to the launch payload processing facility. Our business operations are highly dependent on our ability to timely design, build, and launch new or replacement satellites on a regular schedule from launch service providers located in the United States and internationally. We have previously experienced, and may experience in the future, delays or other complications in the design, development, manufacture, launch, production, delivery, or servicing ramp of our satellites. Damage or destruction during pre-launch operations, launch delays or failures, delays in the manufacturing of space infrastructure technology, or incorrect orbital placement during execution of a space mission could have a material adverse effect on us. Any launch delay, including a delay that affects the deployment of new satellites needed to expand or refresh our constellation, launch failure, underperformance, delay or perceived delay could have a material adverse effect on our business, financial condition, and results of operations.
Any interference with our satellite operations that impairs the performance of our satellites, whether intentional or unintentional, could materially and adversely affect our operations.
Intentional or unintentional electromagnetic or RF interference, including by nation state actors or their agents could result in a failure of our ability to deliver satellite services to our customers. A failure at any of our facilities or in the communications links between our facilities or interference with our satellite signal could cause our revenue to decline materially and could adversely affect our ability to market our services and harm our business, prospects, financial condition, and results of operations. Adverse actions by nation states or other organizations against the space environment or other satellites, such as anti-satellite attacks and kinetic or energy-based weapons, could degrade the orbital environment in ways that impair the operation of our constellation or satellites, in part or in whole, on a temporary or permanent basis. In addition, adverse actions by nation states or other organizations against the terrestrial communications links between our facilities or those of our suppliers could cause our revenue to decline materially and could adversely affect our ability to market our services. As a result, our business, prospects, financial condition and results of operations could be adversely affected.
Space is a harsh and unpredictable environment where our products and service offerings are exposed to a wide and unique range of environmental risks, including, among others, coronal mass ejections, solar flares, and other extreme space weather events and potential collision with space debris or another spacecraft, which could adversely affect our technology and spacecraft performance.
Space weather, including coronal mass ejections and solar flares, has the potential to impact the performance and controllability of our in-orbit technology, including completely disabling our communications or mechanical capabilities. Although we have some ability to actively maneuver our clusters to avoid potential collisions with space debris or other spacecraft, this ability is limited by, among other factors, uncertainties, and inaccuracies in the projected orbit location of objects tracked and cataloged by the U.S. Government. Additionally, some space debris is too small to be tracked and therefore its orbital location is completely unknown; nevertheless, this debris is still large enough to
potentially cause severe damage or a failure of our technologies in space should a collision occur. The failure of our technology in space may cause perceptions or direct degradation of performance, and ultimately impact our business, results of operations and financial position.
Our business involves significant risks and uncertainties that may not be covered by insurance.
A portion of our business relates to designing, developing, and manufacturing advanced space-based technology products and services. New technologies may be untested or unproven and the failure of our products and services could result in extensive damage. Accordingly, we may incur liabilities that are unique to our products and services.
The amount of insurance coverage that we maintain may not be adequate to cover all claims or liabilities. Existing coverage may be canceled while we remain exposed to the risk and it is not possible to obtain insurance to protect against all operational risks, natural hazards, and liabilities. We generally obtain insurance for damage to our satellites during launch, orbital insertion, in-orbit checkout and, in certain instances, limited time of operation under standard policies available for Launch and Early Orbit Phase coverage. We typically do not maintain in-orbit insurance. Proving that an insurable loss event has occurred in orbit can be difficult and recovery under the policy may not compensate for all the consequential harms to our business. If a significant accident or event occurs that is not fully insured, if we fail to recover all anticipated insurance proceeds for significant accidents or events for which we are insured, or if we fail to replace or repair products or services damaged by such accidents or events, our operations and financial condition could be harmed. Even if we are fully insured as it relates to a claim, the claim could nevertheless diminish our brand and divert management’s attention and resources, which could have a negative impact on our business, financial condition, and results of operations.
Generally, liability to third parties in connection with our launch activities is insured against by the relevant launch services providers in an amount required by law, and the U.S. Government typically pays claims for third-party damages to the extent they exceed such insurance coverage, depending on a government appropriation and subject to a statutory limit. In addition, this insurance will not protect us against our own losses, including for technologies supporting a launch complex and technology operating in outer space.
The price and availability of insurance fluctuates significantly. Insurance market conditions or factors outside our control, such as failure of our infrastructure technology, could cause premiums to be significantly higher than current estimates and could reduce amounts of available coverage. The cost of our insurance has been increasing and may continue to increase. Higher premiums on insurance policies will reduce our operating income by the amount of such increased premiums. If the terms of insurance policies become less favorable than those currently available, there may be limits on the amount of coverage that we can obtain or we may not be able to obtain insurance at all.
In addition, any disruption of our ability to operate our business could result in a material decrease in our revenues or significant additional costs to replace, repair, or insure our assets, which could have a material adverse impact on our financial condition and results of operations.
Interruption or failure of our infrastructure could hurt our ability to effectively perform our daily operations and provide and produce our products and services, which could damage our reputation and harm our operating results.
We and our systems are vulnerable to natural disasters and significant disruptions including tsunamis, hurricanes, floods, earthquakes, fires, water shortages, other extreme weather conditions, epidemics or pandemics, acts of terrorism, disruptive political events, power shortages, and blackouts, aging infrastructures, cyberattacks, computer viruses, computer denial of service attacks or other attempts to harm our systems, and telecommunications failures. In the event of such a natural disaster or other disruption, we could experience disruptions to our operations or the operations of suppliers, subcontractors, distributors or customers, destruction of facilities, and/or loss of life. In certain cases,
some events may not excuse us from performing our obligations pursuant to agreements with third parties and therefore may expose us to liability.
The availability of many of our products and services depends on the continuing operation of our information technology and communications systems. Any downtime, damage to, or failure of our systems or those of the third parties with which we work could result in interruptions in our operations and services, which could reduce our revenue and profits. For example, we rely on the technology, infrastructure, and software applications, including software-as-a-service offerings, of certain third parties, such as Amazon Web Services, Microsoft Azure, and our ground station providers, in order to operate some or all of certain key features or functions of our business. Any failure in our infrastructure could result in errors or defects in the delivery of our products and services, the destruction of satellites and satellite components, manufacturing delays, exposure to legal or contractual liability, increased costs, and difficulties managing our operations. Terrorist attacks, actual or threatened acts of war or the escalation of current hostilities, or any other military or trade disruptions impacting our suppliers of components of our products, may impact our operations by, among other things, causing supply chain disruptions and increases in commodity prices, which could adversely affect our raw materials or transportation costs. In addition, because we participate in the defense and national security industries, we could ourselves become the target of such an attack or disruption. Such events could also impact one or more of our suppliers or contractors. The occurrence of any of the foregoing could result in lengthy interruptions in our operations and services and/or damage our reputation, which could have a material adverse effect on our business, financial condition, and results of operations.
Disruptions in the supply of key raw materials or components and difficulties in the supplier qualification process, as well as increases in prices of raw materials, could adversely impact us.
Key raw materials and components used in our operations include electronic, electro-mechanical, and mechanical components, subassemblies, and subsystems that are integrated with the manufactured parts for final assembly into finished products and systems. We are impacted by increases in the prices of raw materials used in production on fixed-price business. We monitor sources of supply to attempt to assure that adequate raw materials and other components and supplies needed in manufacturing processes are available. However, our ability to manage inventory and meet delivery requirements may be constrained by our suppliers’ inability to scale production and adjust delivery of long-lead time products during times of volatile demand. Our inability to fill our supply needs would jeopardize our ability to fulfill obligations under our contracts, which could, in turn, result in reduced sales and profits, contract penalties or terminations and damage to customer relationships, and could have a material adverse effect on us. Prolonged disruptions in the supply of any of our key raw materials or components, difficulty completing qualification of new sources of supply, implementing use of replacement materials, components or new sources of supply, or a continuing increase in the prices of raw materials, energy, or components could have a material adverse effect on us.
Risks Related to Our Employees and the Workforce
We depend on our current President and Chief Executive Officer and other executive officers, senior management team, and highly trained employees, and our inability to hire or retain key personnel could have a material adverse effect on us.
Our ability to compete in the highly competitive technology industry depends upon our ability to attract, motivate, and retain qualified personnel. We are highly dependent on the continued contributions and relationships of our management, and particularly on the services of John Serafini, our President and Chief Executive Officer. Mr. Serafini was part of our founding team and has been integral to our growth since our founding. The relationships and reputation that Mr. Serafini and other members of our senior management team have established and maintain with U.S. Government agencies and personnel contribute to our ability to maintain strong customer relationships and to identify new business opportunities. The loss of any member of our senior management could impair our ability to identify and secure new contracts, to maintain good customer relations, and to otherwise manage our business.
In addition, Mr. Serafini is a Venture Partner and a member of the Investment Committee at Shield Capital, as well as a member of the Advisory Board of the National Security Space Association, a member of the Board of Governors of the Middle East Institute, and a member of the Board of Trustees of the INSA Foundation. Such involvement in other businesses and organizations has the potential to present a conflict of interest regarding decisions Mr. Serafini makes for us or with respect to his time. For example, these outside roles could result in the diversion of his attention from our business, the allocation of his time to matters unrelated to us, or his recusal from, or inability to participate fully in, certain discussions, negotiations or decisions involving actual or perceived competing interests. If any such conflict of interest is not identified or managed effectively, then it could adversely affect our strategic decision-making, delay a corporate action or create reputational, governance or other risks for us. To the extent any conflict of interest arises due to Mr. Serafini’s roles with such businesses and organizations, we cannot guarantee how such conflict of interest will be resolved or that any resolution will be in our best interest.
We depend on key technical employees as well as our ability to identify, attract, and retain highly skilled technical, managerial, finance, and other personnel. All of our executive officers and many key personnel are at-will employees and may terminate their employment relationship with us at any time. Our operating performance is also dependent upon personnel who hold security clearances and receive substantial training to work on certain programs or tasks and can be difficult to replace on a timely basis if we experience unplanned attrition. The loss of any of our key personnel, the inability to attract or retain qualified personnel, or delays in hiring required personnel, particularly in engineering and sales, may seriously harm our business, financial condition, and results of operations.
We face intense competition for qualified individuals, including those with prior experience in premier government signal processing environments and those holding high-level clearances. Our competitors, which include companies, government agencies and academic institutions, may have greater resources than we do. Often, significant amounts of time and resources are required to train technical, sales and other personnel. Qualified individuals with a deep understanding of physics, electromagnetics, and applied mathematics are in high demand and we may incur significant costs to attract and retain them. Further, significant amounts of time and resources are required to train technical, sales, and other personnel, and we may lose new employees to our competitors or other companies before we realize the benefit of our investment in recruiting and training them. We may be unable to attract and retain suitably qualified individuals who can meet our growing technical, operational and managerial requirements, on a timely basis or at all, and we may be required to pay increased compensation in order to do so. Also, to the extent we hire personnel from competitors, we may be subject to allegations that they have been improperly solicited or divulged proprietary or other confidential information. Moreover, many of our qualified specialists have reserve status in the U.S. armed forces and may be recalled into service unexpectedly.
In addition, potential employees may request to work entirely or partially remotely. For example, though many of our current employees have returned to their offices following the COVID-19 pandemic, some continue to work remotely. There is no guarantee that we will realize any anticipated benefits to our business from this model, including cost savings, operational efficiencies, or productivity. It is also possible that remote work arrangements may have a negative impact on our ability to recruit, train, manage, and retain employees; our operations; our information, data security, and cybersecurity; consumer privacy and the risk of fraud; the execution of our business plans; our ability to maintain and strengthen our culture; the productivity and availability of key personnel and other employees necessary to conduct our business; and on third-party service providers who perform critical services for us, or otherwise cause operational failures due to changes in our normal business practices.
If we are unable to attract and retain the qualified personnel we need to succeed, our business would suffer.
A significant portion of our management team has limited experience managing a public company.
Most members of our management team have limited experience managing a publicly traded company, interacting with public company investors, and complying with the increasingly complex laws pertaining to public companies. Our management team may not successfully or efficiently manage our transition to being a public company that is subject to significant regulatory oversight and reporting obligations under the federal securities laws and the continuous scrutiny of securities analysts and investors. These new obligations and constituents will require significant attention from our senior management and could divert their attention away from the day-to-day management of our business, which could harm our business, financial condition, and results of operations.
Labor-related matters, including labor disputes, may adversely affect our operations.
None of our employees are currently represented by a union. If our employees decide to form or affiliate with a union, we cannot predict the effects such future organizational activities will have on our business and operations. If we were to become subject to work stoppages, we could experience disruption in our operations, including delays in manufacturing and operations, and increases in our labor costs, which could harm our business, results of operations, and financial condition.
In addition, we could face a variety of employee claims against us, including general discrimination, privacy, wage and hour, labor and employment, Employee Retirement Income Security Act, and disability claims. Any claims could also result in litigation or regulatory proceedings being brought against us by various government agencies that regulate our business, including the U.S. Equal Employment Opportunity Commission. Often these cases raise complex factual and legal issues and create risks and uncertainties. If we were to become subject to such labor disputes, it could have a negative effect on our business, financial condition, and results of operations.
Risks Related to Information Technology, Cybersecurity, Data Privacy and Intellectual Property
If our information technology systems or those third parties with whom we work or our data, are or were compromised, we could experience adverse consequences resulting from such compromise, including regulatory investigations or actions; litigation; fines and penalties; disruptions of our business operations; reputational harm; loss of revenue or profits; loss of customers; and other adverse consequences.
Our success depends in part on our ability to protect and maintain the operation of our technology platforms and services, and we rely on information technology networks and systems to securely collect, receive, store, process, generate, use, transfer, disclose, make accessible, protect, secure, dispose of, transmit, and share (collectively, “process”) electronic information. Our platforms and services process and analyze large data sets that often contain confidential and/or sensitive information (including in some instances personal or identifying information, information relating to our customers, government classified information, intellectual property, trade secrets, information subject to government controls, such as controlled unclassified information, and other information subject to regulatory or statutory control or requirements (collectively, “sensitive information”)). Because of our industry and customer base, our software and information systems are likely to be perceived as attractive targets for attacks by computer hackers, including nation states and nation state sponsored hackers, or others seeking unauthorized access, and our software and information systems face threats of unauthorized exposure, exfiltration, alteration, deletion, loss, or unavailability of data. Additionally, because many of our customers use our platforms to complete certain critical tasks, we believe they have a lower risk tolerance for security vulnerabilities in our platforms and services than for vulnerabilities in other, less critical, software products and services, which increases the contractual risks associated with our cybersecurity program.
Cyber-attacks, malicious internet-based activity, online and offline fraud, and other similar activities threaten the confidentiality, integrity, and availability of our sensitive information and information technology systems, and those of the third parties with whom we work. Such threats are prevalent and continue to rise, are increasingly difficult to detect, and come from a variety of sources, including
traditional computer “hackers,” threat actors, “hacktivists,” organized criminal threat actors, personnel (such as through theft or misuse), sophisticated nation states, and nation-state-supported actors. Some actors now engage and are expected to continue to engage in cyber-attacks, including without limitation nation-state actors for geopolitical reasons and in conjunction with military conflicts and defense activities. During times of war and other major conflicts, we, the third parties with whom we work, and our customers may be vulnerable to a heightened risk of these attacks, including retaliatory cyber-attacks, that could materially disrupt our systems and operations, supply chain, and ability to produce, sell and distribute our goods and services. For example, we and certain of our customers have operations and third parties with whom we work to support our business in unstable regions and regions experiencing (or expected to experience) geopolitical or other conflicts, including Ukraine and the Middle East. We and the third parties with whom we work are subject to a variety of evolving threats, including social-engineering attacks (including through deep fakes, which may be increasingly more difficult to identify as fake, and phishing attacks), malicious code (such as viruses and worms), malware (including as a result of advanced persistent threat intrusions), denial-of-service attacks, credential stuffing attacks, credential harvesting, personnel misconduct or error, ransomware attacks, supply-chain attacks, software bugs, server malfunctions, software or hardware failures, loss of data or other information technology assets, adware, telecommunications failures, earthquakes, fires, floods, attacks enhanced or facilitated by AI, signals interference including RF interference or global positioning system interference, and other similar threats. In particular, severe ransomware attacks are becoming increasingly prevalent and can lead to significant interruptions in our operations, ability to provide our products or services, loss of sensitive data and income, reputational harm, and diversion of funds. Extortion payments may alleviate the negative impact of a ransomware attack, but we may be unwilling or unable to make such payments due to, for example, applicable laws or regulations prohibiting such payments.
It may be difficult and/or costly to detect, investigate, mitigate, contain, and remediate a security incident. Our efforts to do so may not be successful. Actions taken by us or the third parties with whom we work to detect, investigate, mitigate, contain, and remediate a security incident could result in outages, data losses, and disruptions of our business. Threat actors may also gain access to other networks and systems after a compromise of our networks and systems.
Future or past business transactions (such as acquisitions or integrations) could expose us to additional cybersecurity risks and vulnerabilities, as our systems could be negatively affected by vulnerabilities present in acquired or integrated entities’ systems and technologies. Furthermore, we may discover security issues that were not found during due diligence of such acquired or integrated entities, and it may be difficult to integrate companies into our information technology environment and security program.
We rely on third parties to operate critical business systems to process sensitive information in a variety of contexts, including, without limitation, ground station providers, cloud-based infrastructure (including cloud-based infrastructure designed to meet the regulatory and security requirements specific to the processing of classified and other sensitive or controlled government information), data center facilities, encryption and authentication technology, employee email, content delivery to customers, and other functions. Our ability to monitor these third parties’ information security practices is limited, and these third parties may not have adequate information security measures in place. If the third parties with whom we work experience a security incident or other interruption, we could experience adverse consequences. While we may be entitled to damages if the third parties with whom we work fail to satisfy their privacy or security-related obligations to us, any award may be insufficient to cover our damages, or we may be unable to recover such award. In addition, supply-chain attacks and interruptions have increased in frequency and severity, and we cannot guarantee that third parties’ infrastructure in our supply chain or that of the third parties with whom we work have not been compromised or will not be subject to interruptions.
Further, our third-party data centers and cloud computing providers have experienced, and may in the future experience, interruptions, delays and outages in service and availability from time to time due to a variety of factors, including infrastructure changes, human or software errors, website hosting disruptions
and capacity constraints. Consequently, we may be subject to service disruptions, as well as failures to provide adequate support, for reasons that are outside of our direct control. Such service disruptions could result in interruptions to our services to customers or damage to, or loss or compromise of, our data and our customers’ data, including personal data. Any impairment of our or our customers’ data or interruptions in the functioning of our services due to interruptions, delays or outages in service from our third-party data centers and cloud computing providers may reduce our revenue, increase our operations costs, result in significant fines, cause us to issue credits or pay penalties, subject us to claims for indemnification and other claims, litigation or disputes, result in regulatory investigations or other inquiries, cause our customers to terminate their subscriptions and adversely affect our reputation, renewal rates and our ability to attract new business opportunities.
While we have implemented security measures designed to protect against security incidents, there can be no assurance that these measures will be effective. We take steps designed to detect, mitigate, and remediate vulnerabilities in our information systems (such as our hardware and/or software, including that of third parties with whom we work). We may not, however, detect and remediate all such vulnerabilities including on a timely basis. Further, we may experience delays in developing and deploying remedial measures and patches designed to address identified vulnerabilities. Vulnerabilities could be exploited and result in a security incident.
Any of the previously identified or similar threats may cause a security incident or other interruption that have in the past and may in the future result in unauthorized, unlawful, or accidental acquisition, modification, destruction, loss, alteration, encryption, disclosure of, or access to our sensitive information or our information technology systems, or those of the third parties with whom we work. A security incident or other interruption could disrupt our ability (and that of third parties with whom we work) to provide our platform/products/services. A cybersecurity incident that involves classified or other sensitive or controlled government information or certain controlled technical information could subject us to civil or criminal penalties and could result in loss of security clearances and other accreditations, loss of our government contracts, loss of access to classified information, loss of export privileges, and/or suspension or debarment as a government contractor.
We may expend significant resources or modify our business activities to try to protect against security incidents. Certain data privacy and security obligations have required us to implement and maintain specific security measures or industry-standard or reasonable security measures to protect our information technology systems and sensitive information.
Applicable data privacy and security obligations may require us, or we may voluntarily choose, to notify relevant stakeholders, including affected individuals, customers, regulators, and investors, of security incidents, or to take other actions, such as providing credit monitoring and identity theft protection services, and we have done so in the past. Such disclosures and related actions can be costly, and the disclosure or the failure to comply with such applicable requirements could lead to adverse consequences. If we (or a third party with whom we work) experience a security incident or are perceived to have experienced a security incident, we may experience material adverse consequences, such as government enforcement actions (for example, investigations, fines, penalties, audits, and inspections); additional reporting requirements and/or oversight; restrictions on processing sensitive information (including personal data); litigation (including class claims); indemnification obligations; negative publicity; reputational harm; monetary fund diversions; diversion of management attention; interruptions in our operations (including availability of data); financial loss; and other similar harms. Security incidents and attendant material consequences may prevent or cause customers to stop using our services, deter new customers from using our services, and negatively impact our ability to grow and operate our business.
Our contracts may not contain limitations of liability, and even where they do, there can be no assurance that limitations of liability in our contracts are sufficient to protect us from liabilities, damages, or claims related to our data privacy and security obligations. We cannot be sure that our insurance coverage will be adequate or sufficient to protect us from or to mitigate liabilities arising out of our privacy
and security practices, that such coverage will continue to be available on commercially reasonable terms or at all, or that such coverage will pay future claims.
In addition to experiencing a security incident, third parties may gather, collect, or infer sensitive information about us from public sources, data brokers, or other means that reveals competitively sensitive details about our organization, operations, or customers or other sensitive information. This information could be used to undermine our competitive advantage or market position. Such an incident could lead to adverse consequences, including reputational harm and loss of customers.
We and the third parties with whom we work are subject to stringent and evolving U.S. and international laws, regulations, and rules, contractual obligations, industry standards, policies, and other obligations related to data privacy and security, including in relation to our contracts with government customers. Our (or the third parties with whom we work) actual or perceived failure to comply with such obligations could lead to regulatory investigations or actions; litigation (including class claims) and mass arbitration demands; fines and penalties; disruptions of our business operations; reputational harm; loss of revenue or profits; loss of customers; and other adverse business consequences.
In the ordinary course of business, we process personal data and other sensitive information. Our data processing activities subject us to numerous data privacy and security obligations, such as various laws, regulations, guidance, industry standards, external and internal data privacy and security policies, contractual requirements, and other obligations relating to data privacy and security.
In the United States, federal, state, and local governments have enacted numerous data privacy and security laws, including data breach notification laws, personal data privacy laws, consumer protection laws (e.g., Section 5 of the Federal Trade Commission Act), and other similar laws (e.g., wiretapping laws). We sense and measure the observable physical attributes of electromagnetic signals and process the resulting data to derive information for our customers. The basis for processing such information is our interpretation of U.S. laws and regulatory regimes, including the Electronic Communications Privacy Act and the Communications Act of 1934. Changes to these laws or regulators’ and courts’ interpretations of these laws could adversely impact our business and ability to meet customer demands.
Outside the United States, an increasing number of laws, regulations, and industry standards govern data privacy and security. Certain foreign laws, rules, regulations and industry standards impose stricter requirements for processing personal data, and failure to comply with the requirements of such laws, rules, regulations, and industry standards may result in fines and other administrative penalties, as well as the imposition of litigation or government enforcement actions. Additionally, the Network and Information Security Directive (“NIS2”) came into force in January 2023, amending the rules of security of network and information systems in the European Union. NIS2 regulates resilience and incident response capabilities of entities operating in a number of sectors, including the space sector. Non-compliance with NIS2 may lead up to administrative fines of at least the greater of 10 million Euros or up to 2% of the total worldwide revenue of the preceding fiscal year.
In addition to data privacy and security laws, rules, regulations and industry standards, as a contractor that provides support to a number of U.S. federal agencies, including the DoW, we are contractually subject to cybersecurity standards and clauses adopted or required by our government customers and/or industry groups and, we are, and may become in the future, subject to such obligations. These include contractual requirements related to safeguarding of sensitive Controlled Unclassified Information (“CUI”) on our information systems as specified in NIST SP 800-171 and the Cybersecurity Maturity Model Certification (“CMMC”). Responsibilities include providing adequate security on information systems, completing and reporting system compliance assessments, reporting security breaches, and prohibiting the acquisition and use of covered defense telecommunications equipment or services.
Should we fail, or be perceived to fail, to comply with these requirements, we could face significant adverse consequences, including termination of customer agreements, regulatory investigations, fines, penalties, exclusion from bidding on certain new U.S. Government contracts or follow-on awards for existing work, ineligibility to receive option awards under existing contracts, or suspension or debarment, in addition to costs for remediation of any failures or perceived failures to comply. This could adversely impact our revenue and profitability. For example, our subsidiary, ISA, is subject to the Investigation under the federal U.S. False Claims Act as more fully described above. In addition, our subcontractors, and in some cases our vendors, may also be required to adhere to NIST 800-171, CMMC, or other flow-down cybersecurity requirements. Should our or any provider or service in our supply chain fail to meet compliance requirements, this may adversely affect our ability to receive awards or execute on relevant government programs or contracts. In addition, any obligations that may be imposed on us under our government contracts or the CMMC may be different from or in addition to those otherwise required by applicable laws and regulations, which may cause additional expenses for compliance.
We are also bound by contractual obligations related to data privacy and security, and our efforts to comply with such obligations may not be successful. We publish privacy policies, marketing materials, whitepapers, and other statements, such as statements related to compliance with certain certifications or self-regulatory principles, concerning data privacy, security, and AI. Regulators in the United States are increasingly scrutinizing these statements, and if these policies, materials or statements are found to be deficient, lacking in transparency, deceptive, unfair, misleading, or misrepresentative of our practices, we may be subject to investigation, enforcement actions by regulators or other adverse consequences.
Future or past business transactions (such as acquisitions or integrations) could expose us to additional risks related to non-compliance with applicable data privacy and security laws, regulations, rules, contractual obligations, industry standards, policies and other obligations related to data privacy and security, including in relation to our government contracts with government customers.
Obligations related to data privacy and security (and consumers’ data privacy and security expectations) are quickly changing, becoming increasingly stringent, and creating uncertainty. Additionally, these obligations may be subject to differing applications and interpretations, which may be inconsistent or conflict among jurisdictions. Preparing for and complying with these obligations requires us to devote significant resources, which may necessitate changes to our services, information technologies, systems, and practices and to those of any third parties that process personal data on our behalf.
We may at times fail (or be perceived to have failed) in our efforts to comply with our data privacy and security obligations. Moreover, despite our efforts, our personnel or third parties with whom we work may fail to comply with such obligations, which could negatively impact our business operations. If we or the third parties with whom we work fail, or are perceived to have failed, to address or comply with applicable data privacy and security obligations, we could face significant consequences, including: government enforcement actions (e.g., investigations, fines, penalties, audits, inspections, and similar); litigation (including class-action claims) and mass arbitration demands; additional reporting requirements and/or oversight; bans or restrictions on processing personal data; orders to destroy or not use personal data; and imprisonment of company officials. In particular, plaintiffs have become increasingly more active in bringing data privacy and security-related claims against companies, including class claims and mass arbitration demands. Some of these claims allow for the recovery of statutory damages on a per violation basis, and, if viable, carry the potential for monumental statutory damages, depending on the volume of data and the number of violations.
Any of these events could have a material adverse effect on our reputation, business, or financial condition, including: loss of customers; interruptions or stoppages in our business operations; inability to process personal data or to operate in certain jurisdictions; limited ability to develop or commercialize our products; expenditure of time and resources to defend any claim or inquiry; adverse publicity; or substantial changes to our business model or operations.
Our use of AI/ML technologies could adversely affect our products and services, harm our reputation, or cause us to incur liability resulting from harm to individuals or violation of laws and regulations or contracts to which we are a party.
We use internally developed, and may in the future use third-party developed, AI/ML technologies throughout our business, and are dedicating resources and efforts to continuously improve our use of such technologies. For example, we are developing AI powered-edge computing units to operate across Earth and space, delivering versatile, real-time intelligence capabilities for defense and national security applications as well as for commercial use. As with many technological innovations, there are significant risks and challenges involved in developing, maintaining and deploying these technologies and there can be no assurance that the usage of such technologies will always enhance our solutions or be beneficial to our business, including our efficiency or profitability. Our proprietary AI-enabled algorithms rely on machine learning models, rather than large language models that may experience algorithmic hallucinations, but our algorithms nonetheless remain subject to other risks, such as design, data quality, performance, and operational risks.
In particular, if the models underlying the AI/ML technologies that we develop or use are or are perceived to be: (i) incorrectly designed or implemented; (ii) trained or reliant on incomplete, inadequate, inaccurate, biased or otherwise poor quality data, or on data to which we do not have sufficient rights or in relation to which we and/or the providers of such data have not implemented sufficient legal compliance measures (including with respect to the processing and protection of such data); (iii) used without sufficient oversight and governance to ensure their responsible and ethical use; and/or (iv) adversely impacted by unforeseen defects, technical challenges, cybersecurity threats or material performance issues, the performance of our products, services and business, as well as our reputation and the reputations of our customers and business partners, could suffer or we could incur liability resulting from harm to individuals, civil claims or the violation of laws or contracts to which we are a party. In addition, the use of AI applications may result in incomplete, inadequate, inaccurate, biased or otherwise poor quality output data leakage or unauthorized exposure of data, including confidential business information, the personal data of end users, or other sensitive information. Such leakage or unauthorized exposure of data related to the use of AI applications could result in legal claims or liability or otherwise adversely affect our reputation and operating results.
The development and use of AI present various data privacy and security risks that may impact our business. AI is subject to data privacy and security laws, as well as increasing regulation and scrutiny. Additionally, certain privacy laws extend rights to consumers (such as the right to delete certain personal data), which may be incompatible with our use of AI. Further, we may become bound by contractual obligations restricting to the use or development of AI in the course of performing contracts for our government customers, and/or we may face restrictions regarding information subject to government controls, such as controlled unclassified information and the use of AI tools. These obligations may make it harder for us to conduct our business using AI, lead to litigation, regulatory fines or penalties, require us to change our business practices, retrain our AI, or prevent or limit our use of AI. If we cannot use AI or that use is restricted, our business may be less efficient, or we may be at a competitive disadvantage. Additionally, sensitive information of the Company could be leaked, disclosed, or revealed as a result of or in connection with our employees’, personnel’s, or vendors’ use of AI technologies.
As a result of the complexity and rapid development of AI, it is also the subject of evolving review by various U.S. Governmental and regulatory agencies, and other foreign jurisdictions are applying, or are considering applying, their platform moderation, intellectual property, cybersecurity, and data protection laws to AI and/or are considering general legal frameworks on AI. For example, the European Union Artificial Intelligence Act (“EU AI Act”) establishes obligations on the use of AI based on the type of AI and its potential risks to society. Further, in the United States, federal and state legislatures and agencies have passed and continue to introduce legal frameworks and rules governing AI, such as the California Bot Disclosure Law, the Utah Artificial Intelligence Policy Act, and the Colorado Artificial Intelligence Act. As a result of the rapidly evolving regulatory landscape, implementation standards, enforcement practices, and available scope of protection are likely to remain uncertain for the foreseeable future, and
we cannot yet determine the impact future laws, regulations, or standards may have on our business (including our positioning with respect to our competition) and may not always be able to anticipate how to respond to these laws or regulations. We may also have to expend resources to adjust our product or service offerings in certain jurisdictions if the legal frameworks governing the use of AI are not consistent across jurisdictions. Further, the cost to comply with such laws, regulations, or decisions and/or guidance interpreting existing laws, could be significant and would increase our operating expenses (such as by imposing additional reporting obligations regarding our use of AI technologies). Such an increase in operating expenses, as well as any actual or perceived failure to comply with such laws and regulations, could adversely affect our business, operating results, and financial condition.
If we cannot successfully establish, maintain, protect, and enforce our intellectual property, our business could suffer.
Our success depends on our ability to establish, maintain, protect, and enforce our intellectual property and other proprietary rights, including trade secrets, with respect to our products and technology and to operate our business without infringing, misappropriating, or otherwise violating the intellectual property rights of others. We may not be able to prevent unauthorized use of our intellectual property. We rely on a combination of intellectual property rights afforded by patent, copyright, trademark, and trade secret laws in the United States and internationally, as well as license agreements and contractual protections and other practices to protect our proprietary information, technologies, and processes, including the operations systems and technologies we use throughout our businesses both in our enabling functions and infrastructure development functions, as well as our brand. While it is our policy to maintain, protect and enforce our intellectual property rights, we cannot be sure that the actions we have taken will be adequate to protect us, and if our existing intellectual property rights are rendered invalid or unenforceable, or narrowed in scope, the protection such rights afford our products, services, and brands could be impaired. We may be required to spend significant resources to monitor and protect our intellectual property rights and the efforts we take to protect our proprietary rights may not be sufficient. Our failure to maintain adequate protection of our intellectual property rights for any reason could negatively affect our competitive position, impede our ability to commercialize our products and services and harm our business and operating results.
We currently own certain patents and have applied for and may continue to apply for patent protection relating to certain proprietary aspects of existing and proposed products, processes and services. We cannot guarantee that any of our patent applications will issue into patents and the patents we own could be challenged, invalidated or circumvented by others and may not be of sufficient scope or strength to provide us with any meaningful protection or commercial advantage. Some patent applications in the United States are maintained in secrecy for a period of time after they are filed and since publication of discoveries in the scientific or patent literature tends to lag behind actual discoveries by several months, we cannot be certain that we will be the first creator of inventions covered by any patent application we make or the first to file patent applications on such inventions. The patenting process is expensive and time-consuming, and we may not be able to file and/or prosecute all necessary or desirable patent applications at a reasonable cost or in a timely manner or pursue or obtain patent protection in all relevant markets. Further, we cannot assure you that competitors will not infringe our patents or that we will have adequate resources to enforce our patents.
We rely in part on trade secrets, proprietary know-how and other proprietary and confidential information to maintain our competitive position. However, trade secret protection is risky and uncertain, and the disclosure or independent development by third parties of our proprietary technology could have a material adverse impact on our business and results of operations. Although our policy is to enter into confidentiality and invention assignment agreements with our employees and consultants and enter into confidentiality agreements with the parties with whom we have strategic and business relationships, no assurance can be given that these agreements will be effective in controlling access to, and distribution of, our proprietary or confidential information or will provide us with effective remedies in the event of a breach. Enforcing a claim that a party illegally disclosed or misappropriated a trade secret is difficult, expensive and time-consuming, and a favorable outcome is not guaranteed. Further, these agreements
do not prevent our competitors from independently developing technologies that are substantially equivalent or superior to our technologies, which may allow them to provide products and services similar to ours and thereby harm our competitive position. In addition, while we intend to put in place policies and procedures with respect to the use of AI to mitigate risks to our proprietary and confidential information in connection with our anticipated adoption of such technologies, the use of certain AI tools may pose risks to our proprietary and confidential information, including the inadvertent disclosure of such information into publicly available third-party training sets.
We also rely on our trademarks to distinguish our products and services from those of our competitors and have registered or applied to register many of these trademarks. If our trademarks are not adequately protected, we may be unable to maintain or build name recognition in our target markets and our business may be adversely affected. We cannot guarantee that our trademark applications will be approved and third parties may oppose our trademark applications or otherwise challenge our use of our trademarks. In the event that our trademarks are successfully challenged, we could be forced to rebrand our services or solutions, which could result in loss of brand recognition and could require us to devote resources to develop, advertise and market new brands. If we are unable to successfully register our trademarks and establish name recognition based on our trademarks, we may not be able to compete effectively and our business may be adversely affected. In addition, competitors or other third parties have in the past adopted, and may in the future adopt, trademarks similar to ours, which may impede our ability to build brand identity, possibly leading to market confusion and potentially requiring us to pursue legal action.
Significant resources may be required to monitor and protect our intellectual property rights, and despite such efforts, we may not be able to detect infringement, misappropriation, or other violations of our intellectual property rights by third parties. Litigation may be necessary in the future to enforce or protect our intellectual property rights. Such litigation could be costly, time-consuming, unpredictable and distracting to management and could result in the impairment or loss of portions of our intellectual property. Furthermore, our efforts to enforce our intellectual property rights may be met with defenses, counterclaims, and countersuits attacking the ownership, scope, validity and enforceability of our intellectual property rights. Third parties may also separately challenge the validity and enforceability of our intellectual property in administrative and other legal proceedings. An adverse determination of any litigation proceedings could put our intellectual property at risk of being invalidated, deemed unenforceable or reduced in scope. Furthermore, because of the substantial amount of discovery that may be required in connection with intellectual property litigation, there is a risk that some of our proprietary or confidential information could be compromised by disclosure during this type of litigation. Our inability to protect our proprietary technology and other intellectual property against infringement, misappropriation, or other violations, as well as any costly litigation or diversion of our management’s attention and resources, could allow competitors to develop and commercialize services or products similar to ours and thereby reduce demand for our offerings, could delay future sales and introductions of new capabilities, result in our substituting inferior or more costly technologies into our business, or injure our reputation.
Additionally, we have licensed, and may license in the future, intellectual property rights from third parties, and the licenses we receive to such intellectual property rights may not provide exclusive or unrestricted rights in all fields of use and in all territories in which we may wish to develop or commercialize our products in the future and may restrict our rights to offer certain products in certain markets or impose other obligations on us in exchange for our rights to the licensed intellectual property. If we violated the terms of any of our license agreements, such as by failing to make specified royalty payments or failing to comply with quality control standards, a licensor may have the right to terminate our license. Even if we comply with all the terms of a license agreement, we cannot guarantee that we will be able to renew an agreement when it expires even if we desire to do so. The failure to maintain or renew our material license agreements could result in a loss of revenue and negatively impact our results of operations. In addition, we may be required to license additional technology from third parties to develop and market new capabilities, and we cannot assure you that we could license that technology on
commercially reasonable terms or at all, and our inability to license this technology could harm our ability to compete. We also grant licenses to third parties which allow third parties the right to use certain of our intellectual property in a restricted capacity. Further, a government, including the U.S. Government, or a prime contractor customer could require us to relinquish intellectual property and data rights in connection with performing work on a government contract, which could lead to a loss of valuable rights in technology and intellectual property as a condition for participating in a government program. While we attempt to ensure that our intellectual property rights are protected when entering into business relationships, third parties may take actions that could materially and adversely affect our rights in or the value of our intellectual property rights.
Additionally, our intellectual property rights may not be protected in some jurisdictions to the same extent that they are protected in the United States, increasing the potential for infringement. It may be more difficult for us to successfully challenge the use of our intellectual property by other parties in these countries, which could diminish the value of our technologies, products, and services and cause our competitive position and growth to suffer. In addition, filing prosecuting and defending our intellectual property in all countries throughout the world where we operate may be prohibitively expensive. The lack of adequate legal protections of intellectual property or adequate legal remedies for infringement, misappropriation, and other violations of intellectual property in jurisdictions outside of the United States could have an adverse effect on our business, results of operations, and financial condition.
Third parties may allege that we are infringing, misappropriating, or otherwise violating their intellectual property rights, which could involve substantial costs and adversely impact our business.
Our success in part depends on our ability to develop, manufacture, market, and sell our technologies without infringing, misappropriating, or otherwise violating the intellectual property rights of third parties. However, we may not be aware that our technologies are infringing, misappropriating, or otherwise violating third-party intellectual property rights and such third parties may bring claims alleging such infringement, misappropriation, or violation. Because of technological changes in our industry, current patent coverage and the rapid rate of issuance of new patents, our current or future technologies may infringe, misappropriate, or otherwise violate existing or future patents or intellectual property rights of other parties. Further, because some patent applications are maintained in secrecy for a period of time, there is a risk that we could develop a product or technology without knowledge of a pending patent application, which product or technology would infringe a third-party patent once that patent is issued.
We or our vendors have been, and may in the future be, subject to claims by third parties alleging that we or our vendors have infringed, misappropriated, or otherwise violated their intellectual property rights. Any such claims, even those without merit, can be expensive and time-consuming to defend and may divert management’s attention and resources, and an adverse result in any proceeding could put our ability to produce, market, and sell our technologies in jeopardy. The outcome of any litigation is inherently uncertain, and there can be no assurances that favorable final outcomes will be obtained in all cases. We may be required to spend significant resources to defend against such claims, pay significant money damages, cease using certain processes, technologies, trademarks or other intellectual property, cease making, offering and selling certain technologies, obtain a license (which may not be available on commercially reasonable terms or at all) or redesign all or a portion of our technologies or change our branding (which could be costly, time-consuming, or impossible). While no such claims have been material to date, there is no guarantee that future claims would not have a material effect on our business.
The defense costs and settlements for intellectual property infringement lawsuits may not be covered by insurance, and may not be adequate to indemnify us for all liability that may be imposed. Intellectual property infringement lawsuits can take years to resolve. We cannot predict the outcome of lawsuits and cannot ensure that the results of any such actions will not have an adverse effect on our business, financial condition or results of operations. If we are not successful in our defenses or are not successful in obtaining dismissals of any such lawsuit, legal fees or settlement costs could have an adverse effect on
our operations and financial position. Even if resolved in our favor, the volume of intellectual-property-related claims and the mere specter of threatened litigation or other legal proceedings may cause us to incur significant expenses and could distract our personnel from day-to-day responsibilities. The direct and indirect costs of addressing these actual and threatened disputes may have an adverse effect on our operations, reputation, and financial performance.
In addition, some of our agreements with third parties require us to indemnify them for certain intellectual property claims against them, which could require us to incur considerable costs in defending such claims, and may require us to pay significant damages in the event of an adverse ruling, pay significant amounts to obtain a license to use such intellectual property, or incur significant costs delivering a non-infringing replacement. Such third-party partners may also discontinue their relationships with us as a result of injunctions or otherwise, which could result in loss of revenue and adversely impact our business operations.
Intellectual property rights discovered through government-funded programs may be subject to federal regulations such as “march-in” rights, certain reporting requirements and a preference for U.S.-based companies and compliance with such regulations may limit our intellectual property rights.
We may develop, acquire, or license intellectual property rights that have been generated with U.S. Government funding or grants. Pursuant to the Bayh-Dole Act of 1980, the U.S. Government may have certain rights in inventions developed with government funding. These U.S. Government rights may include a non-exclusive, non-transferable, irrevocable worldwide license to use inventions for any governmental purpose. In addition, the U.S. Government may have the right, under certain limited circumstances, to require us to grant exclusive, partially exclusive or non-exclusive licenses to any of these inventions to a third-party if the U.S. Government determines that: (1) adequate steps have not been taken to commercialize the invention; (2) government action is necessary to meet public health or safety needs; or (3) government action is necessary to meet requirements for public use under federal regulations (also referred to as “march-in” rights). Such “march-in” rights would apply to new subject matter arising from the use of such government funding or grants and would not extend to pre-existing subject matter or subject matter arising from funds unrelated to the government funding or grants. If the U.S. Government exercised its march-in rights in our intellectual property rights that have been generated through the use of U.S. Government funding or grants, we could be forced to license or sublicense intellectual property we developed or that we license on terms unfavorable to us, and there can be no assurance that we would receive compensation from the U.S. Government for the exercise of such rights. The U.S. Government may also have the right to take title to these inventions if a funding or grant recipient fails to disclose the invention to the government or fails to file an application to register the intellectual property within specified time limits. Intellectual property generated under a government-funded program is also subject to certain reporting requirements, compliance with which may require us to expend substantial resources. In addition, the U.S. Government prohibits granting the exclusive right to use or sell these inventions in the United States unless the licensee agrees that products embodying or produced through the inventions will be manufactured substantially in the United States. This preference for U.S. industry may be waived by the federal agency that provided the funding if the owner of the intellectual property rights can show that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States or that under the circumstances domestic manufacture is not commercially feasible. This preference for U.S. industry may limit our ability to contract with non-U.S. product manufacturers for products covered by such intellectual property rights. To the extent any of our owned or licensed future intellectual property is also generated through the use of U.S. Government funding, the provisions of the Bayh-Dole Act may similarly apply.
Our use of open source software could compromise the proprietary nature of our software and expose us to other legal liabilities and technological risks.
Some of our proprietary software utilizes and incorporates open source software and we expect to continue to use open source software in our business in the future. Open source software is freely accessible, usable and modifiable, in each case, subject to the terms of the applicable open source software license. Open source software is licensed by its authors or other third parties under open source licenses, which in some instances may subject us to certain unfavorable conditions. For example, certain open source licenses may give rise to requirements to disclose or license our proprietary source code or make available any derivative works or modifications of the open source code on unfavorable terms or at no cost, and we may be subject to such terms if such open source software is combined, linked or otherwise integrated with our proprietary software in certain ways. We have not yet implemented any formal written policies relating to our use of open source software that are designed to mitigate the risk of subjecting our proprietary code to these restrictions and requirements. We cannot guarantee that all open source software is reviewed prior to use in our platform or that our developers have not incorporated open source software into our products that we are unaware of or that they will not do so in the future. As such, we may be subject to certain requirements, including requirements that we offer our software that incorporates or links to the open source software at reduced cost or for free, or that we make available the proprietary source code for such software to the general public.
Furthermore, there are an increasing number of “open source” software license types, almost none of which have been interpreted by U.S. or foreign courts, resulting in a dearth of guidance regarding the proper legal interpretation of such licenses. As a result, there is a risk that these licenses could be construed in a manner that could impose unanticipated conditions or restrictions on our ability to commercialize our products and services. If a third-party were to allege that we had not complied with the conditions of one or more of these licenses, we could be required to incur significant legal expenses defending against such allegations and could be subject to significant damages and required to comply with onerous conditions or restrictions on the use of our proprietary software. In any of these events, we could be required to seek licenses from third parties and pay royalties in order to continue using the open source software necessary to operate our business or we could be required to discontinue use of our software in the event re-engineering cannot be accomplished on a timely basis, or at all. Any of the foregoing could require us to devote additional research and development resources to re-engineer our software, could result in customer dissatisfaction, could allow our competitors to create similar platforms with lower development effort and time and could have a material adverse effect on us. In addition, the use of open source software may entail greater technical and legal risks than those associated with the use of third-party commercial software, as open source licensors generally do not provide support, warranties, controls on origin of the software, indemnification or other contractual protections regarding infringement claims or the quality of the code, including the existence of security vulnerabilities. We cannot ensure that the authors of such open source software will implement or push updates to address security risks or will not abandon further development and maintenance. Many of the risks associated with usage of open source software, such as the lack of warranties or assurance of title, cannot be eliminated and could, if not properly addressed, negatively affect our business. To the extent that our technologies and other business operations depend upon the successful and secure operation of the open source software we use, any undetected errors or defects in this open source software could prevent the deployment or impair the functionality of our software, delay the introduction of new technological capabilities, result in a failure of our technologies, and injure our reputation. For example, undetected errors or defects in open source software could render it vulnerable to breaches or security attacks and make our systems more vulnerable to data breaches or security attacks. In addition, the public availability of such software may make it easier for others to compromise our platform. Any of the foregoing would have a negative effect on our business, financial condition, and results of operations.
Legal and Regulatory Risks
We or our subsidiaries have previously been, are currently, and may in the future be party to legal proceedings, investigations, and other claims or disputes, which are costly to defend and, if determined adversely to us, could require us to pay fines or damages, undertake remedial measures or prevent us from taking certain actions, any of which could have a material adverse effect on us.
We or our subsidiaries have previously been, are currently, and may in the future be party to legal proceedings, investigations, and other claims or disputes, which may relate to subjects including commercial transactions, government contracts, intellectual property, securities, employee relations or compliance with applicable laws and regulations. These legal proceedings could result in substantial costs and diversion of management’s attention and resources and could harm our stock price, business, prospects, results of operations and financial condition. These and other legal proceedings and investigations are inherently uncertain and we cannot predict their duration, scope, outcome or consequences. There can be no assurance that these or any such matters that have been or may in the future be brought against us will be resolved favorably. In connection with any government investigations, we may be required to pay substantial fines or civil and criminal penalties and/or be subject to equitable remedies, including disgorgement or injunctive relief or suspension or debarment from government contracting, in the event the government takes action against us or the parties resolve or settle the matter. Other legal or regulatory proceedings, including lawsuits filed by private litigants, may also follow as a consequence. These matters are likely to be expensive and time-consuming to defend, settle and/or resolve and may require us to implement certain remedial measures that could prove costly or disruptive to our business and operations. Furthermore, if we accrue a loss contingency for pending litigation and determine that it is probable, any disclosures, estimates, and reserves we reflect in our financial statements with regard to these matters may not reflect the ultimate disposition or financial impact of litigation or other such matters. These proceedings could also result in negative publicity, which could harm customer and public perception of our business, regardless of whether the allegations are valid or whether we are ultimately found liable. The unfavorable resolution of one or more of these matters could have a material adverse effect on our business.
Our business is subject to various regulatory risks that could adversely affect our operations, including a wide variety of extensive and evolving government laws and regulations.
The environment in which we operate is highly regulated due to the sensitive nature of our complex and technologically advanced systems, in addition to regulations broadly applicable to publicly traded corporations. We are subject to a wide variety of laws and regulations relating to various aspects of our business, and there are numerous regulatory risks that could adversely affect operations, including:
•Changes in laws and regulations: Our ability to pursue our business activities is regulated by various agencies and departments of the U.S. Government and, in certain circumstances, the governments of other countries. For instance, our in-orbit RF sensing activities are not currently regulated by any single U.S. regulatory agency, unlike electro-optical satellite remote sensing, which is highly regulated by the Commercial Remote Sensing Agency (“CRSA”) of the U.S. Department of Commerce. Statutory changes providing new authority to an executive agency to regulate in-space activities could result in the imposition of new operating requirements or restrictions on operations that could adversely affect our business. A portion of our revenue is generated outside of the United States and that portion is likely to increase in the future. There may be a material adverse effect on our financial condition and results of operations if we are required to alter our business to comply with changes in both domestic and foreign regulations, tariffs, or taxes, and other trade barriers that reduce or restrict our ability to sell our products and services on a global basis, or by political and economic instability in the countries in which we conduct business. For example, on June 25, 2025, the European Commission released a proposal for a regulation on the safety, resilience, and sustainability of space activities in the European Union, which would significantly reshape the regulatory landscape governing access to
the EU space services market, introducing new requirements in areas such as licensing, environmental compliance, cybersecurity, and orbital debris mitigation. In addition, we are also subject to extensive and evolving local, state, and federal government laws and regulations with respect to employment and labor, health care, tax, data privacy and security, health and safety, and environmental issues. Any failure to comply with such regulatory requirements could also subject us to various penalties or sanctions.
•Import and Export Restrictions: Our business is subject to stringent Trade Controls. We are required to import and export our products, software, technology, and services, as well as run our operations in the United States, in full compliance with Trade Controls. Certain of our technologies require the implementation or acquisition of products or technologies from third parties and affiliates, including those in other jurisdictions, and may be required to be forwarded, imported, or exported to other jurisdictions. If the use of such technologies can be viewed by the jurisdiction in which that supplier, subcontractor or affiliate resides as being subject to import or export constraints or restrictions relating to national security, we may not be able to obtain the technologies and products that we require from subcontractors and suppliers who would otherwise be our preferred choice or may not be able to obtain the export permits necessary to transfer or export our technology. The inability to obtain or maintain export approvals and export restrictions or changes during contract execution or non-compliance by our suppliers, subcontractors, and customers, could have an adverse effect on our revenues and margins. Additionally, export from the United States of our data products and services are regulated by the DDTC as “defense services” that are subject to the strict export restrictions of the ITAR, which implement the AECA. Our marketing to foreign customers, to the extent such marketing constitutes a “defense service,” and the delivery of our data and derivative products and information must be approved by DDTC pursuant to the requirements of the ITAR. Failure to obtain authorizations or to comply with the requirements of the authorizations or of the ITAR, or changes in U.S. export regulatory policy, particularly changes in the foreign policy or national security relationship between the U.S. and any of our export customers, could result in the imposition of restrictions on existing or future authorizations of export sales (including possible revocation of existing authorizations), which could adversely affect our business.
•U.S. Government Approval Requirements: For certain aspects of our business operations, we are required to obtain U.S. Government licenses and approvals and to enter into agreements with various government bodies to provide data and insights to foreign persons. The delayed receipt of or the failure to obtain the necessary U.S. Government licenses, approvals, and agreements may prohibit entry into or interrupt the completion of contracts which could lead to a customer’s termination of a contract for default or monetary penalties, which could materially adversely affect our financial condition and results of operations. The Federal Communications Commission (“FCC”) requires licenses for the use of RF spectrum for communications to and from our satellites and associated ground stations to operate and control our satellites, and for operation of data relays from the satellites to the ground stations or other satellites. We must also file and receive approval from the FCC of an orbital debris mitigation plan covering the launch, in-orbit operation, and end-of life deorbiting of our satellite constellation. Changes in FCC regulatory policy, including possible restrictions on radio frequencies currently used by us, could increase our capital expenditures, decrease revenue, or both, which would adversely affect our business. Some programs require that we and certain of our employees maintain appropriate security clearances. Radio communications for spacecraft operations also require frequency coordination with the International Telecommunication Union. We also require export licenses from State, the U.S. Department of Commerce (“Commerce”) and, occasionally, the governments of other countries with respect to transactions we have with international customers or international subcontractors. In addition, any payload that is to be launched to the space domain will require licenses from the U.S. Department of Transportation and the Federal Aviation Administration, including a positive payload review determination by the U.S. Government. If we are unable to obtain or maintain required licenses, security clearances and/or approvals, or are otherwise
restricted by the regulatory agencies that our businesses are subject to, it could have a material adverse effect on us.
•Competitive Impact of U.S. Regulations: Export and import control, economic sanction, and trade embargo laws and regulations, including those administered by the Commerce Bureau of Industry and Security, the DDTC, and OFAC, including the ITAR and the EAR, may limit certain business opportunities or delay or restrict our ability to contract with potential international customers or suppliers. To the extent that our non-U.S. competitors are not currently or in the future subject to similar export and import controls, economic sanctions, and trade embargo laws and regulations, they may enjoy a competitive advantage with international customers, and it could become increasingly difficult for us to recapture this lost market share.
•Anti-Corruption Laws: As part of the regulatory and legal environments in which we operate, we are subject to domestic and international anti-corruption laws that prohibit improper payments directly or indirectly to government officials, authorities or persons defined in those anti-corruption laws in order to obtain or retain business or other improper advantages in the conduct of business. Our policies mandate compliance with anti-corruption laws. Failure by our employees, agents, subcontractors, suppliers and/or existing or future partners to comply with anti-corruption laws and our policies could impact us in various ways that include, but are not limited to, criminal, civil and administrative fines and/or legal sanctions and the inability to bid for or enter into contracts with certain entities, all of which could have a significant adverse effect on our reputation, operations, and financial results.
Failure to comply with these laws may result in civil penalties or private lawsuits, or the suspension or revocation of licenses, certificates, authorizations or permits, which would prevent us from operating our business. Moreover, the regulatory approaches of different jurisdictions may be multi-layered and may be in conflict with one another, and our compliance could require alteration of our manufacturing processes or operational parameters which may adversely impact our business. We may not be in complete compliance with all such requirements at all times and, even when we believe we are in complete compliance, a regulatory agency may determine that we are not. In addition, the actions of third parties may cause us to fail to comply with certain requirements. Our failure to obtain the licenses necessary to support our business, or any delays that present in our interactions with regulatory authorities, could impact our ability to grow our business, could delay our ability to execute on our existing and future customer contracts and could adversely affect our business, financial condition, and results of operations.
We are routinely subject to audit by our customers on government contracts and the results of those audits could have an adverse effect on our business, reputation, and results of operations.
U.S. Government agencies, including the Defense Contract Audit Agency, the Defense Contract Management Agency, and Offices of Inspectors General, routinely audit and investigate government contractors. These agencies review a contractor’s performance under its contracts, its cost structure, its business systems and its compliance with applicable laws, regulations, and standards. The U.S. Government can decrease or withhold certain payments when it deems systems subject to its review to be inadequate. Additionally, any costs found to be misclassified may be subject to repayment and from time to time we may have substantial disagreements with government auditors regarding the allowability of costs incurred by us under government contracts, which delays payments even if we are correct in our positions. We may have unaudited or unsettled incurred cost claims related to past years, which limits our ability to issue final billings on contracts for which authorized and appropriated funds may be expiring or can result in delays in final billings and our ability to close out a contract.
If an audit or investigation uncovers improper or illegal activities, we may be subject to civil or criminal penalties and administrative sanctions, including reductions of the value of contracts, contract modifications or terminations, forfeiture of profits, suspension of payments, or penalties, fines, suspension or prohibition from doing business with the U.S. Government. In addition, we could suffer serious
reputational harm if allegations of impropriety were made against us. Similar government oversight and risks to our business and reputation exist in most other countries where we conduct business.
The U.S. Government’s determination to award a future contract or contract option may be challenged by an interested party, and, if that challenge is successful, that future contract or option may be terminated.
The laws and regulations governing procurements by the U.S. Government provide procedures by which other bidders and interested parties may challenge the award of a government contract at the U.S. Government Accountability Office (“GAO”) or in federal court. If we are awarded a government contract, such challenges or protests could be filed even if there are not any valid legal grounds on which to base the challenge or protest. If any such challenges or protests are filed, the government agency may decide to suspend our performance under the contract while such protests are being considered by the GAO or the applicable federal court, thus potentially delaying delivery of payment. In addition, we could be forced to expend significant funds to defend any potential award. If a challenge or protest is successful, the government agency may be ordered to terminate any one or more of our contracts and reselect bids. The government agencies with which we have contracts could even be directed to award a potential contract to one of the other bidders. Finally, the government agency, in its discretion, may elect to take corrective action to resolve a pending bid protest which could result in the government agency reevaluating bidders, or asking bidders to re-compete for the contract, and the selection of a new bidder.
Current U.S. Government policy encourages the U.S. Government’s use of commercial data and space infrastructure providers to support U.S. national security objectives.
We are considered by the U.S. Government to be a commercial data provider. U.S. Government policy is subject to change and any change in policy away from supporting the use of commercial data and space infrastructure providers to meet U.S. Government space-based intelligence, surveillance, reconnaissance missions, and space infrastructure needs, or any material delay or cancellation of planned U.S. Government programs, could adversely affect our revenue and our ability to achieve our growth objectives.
Failure to comply with the requirements of the National Industrial Security Program Operating Manual could result in interruption, delay, or suspension of our ability to provide our products and services, and could result in loss of current and future business with the U.S. Government.
Certain contracts with the U.S. Government may require us to be issued facility security clearances under the National Industrial Security Program. The National Industrial Security Program requires that a corporation maintaining a facility security clearance be effectively insulated from foreign ownership, control, or influence (“FOCI”). Failure to maintain an agreement with the U.S. Defense Counterintelligence and Security Agency regarding the appropriate FOCI mitigation arrangement could result in invalidation or termination of the facility security clearances, which in turn would limit our ability to enter into future contracts with the U.S. Government requiring facility security clearances and may result in the loss of our ability to complete existing contracts with the U.S. Government.
Our operations are subject to governmental law and regulations relating to environmental matters, which may expose us to significant costs and liabilities that could negatively impact our financial condition.
Our operations are subject to and affected by various federal, state, local, and foreign environmental laws, and regulations, including the discharge, treatment, storage, disposal, and remediation of hazardous substances and wastes, which can frequently be expanded, changed, or enforced differently over time. Compliance with these existing and evolving environmental laws and regulations requires and is expected to continue to require significant operating and capital costs. We could incur substantial costs, including cleanup costs, fines and civil or criminal sanctions, as well as third-party claims for property damage or personal injury, if we were to violate or become liable under environmental laws or regulations. In addition, new laws and regulations, more stringent enforcement of existing laws and regulations, or the
discovery of previously unknown contamination could result in material obligations and costs. Permits issued pursuant to certain environmental laws are required for our operations or the operations of our key suppliers, and these permits are subject to renewal, modification and, in some cases, revocation.
In addition, under environmental laws, ordinances or regulations, a current or previous owner or operator of property may be liable for the costs of removal or remediation of some kinds of petroleum products or other hazardous substances on, under, or in its property, adjacent or nearby property, or offsite disposal locations, without regard to whether the owner or operator knew of, or caused, the presence of the contaminants, and regardless of whether the practices that resulted in the contamination were legal at the time they occurred. We could be subject to future liabilities under environmental laws at our current or former facilities, adjacent or nearby properties or offsite disposal locations if any such properties are discovered to be contaminated with hazardous substances.
We may be adversely affected by global climate change or by legal, regulatory or market responses to such change.
The impacts of climate change on the global economy and our industry are rapidly evolving. We have been, and may continue to be, subject to increased regulations, reporting requirements, standards or expectations regarding the environmental impacts of our business, as well as physical and transition risks associated with climate change, all of which could impact our market and financial outlook, reputation, cost of capital, global supply chain, and production continuity.
Changes in environmental and climate change laws or regulations could lead to additional operational restrictions and compliance requirements upon us or our products or upon our key suppliers, require new or additional investment in product designs, require carbon offset investments or otherwise could negatively impact our business and/or competitive position. Physical impacts of climate change (including as relating to more frequent or more severe weather events and drought-related limitations on access to water), increasing global chemical restrictions and bans, and water and waste requirements may drive increased costs to us and our suppliers. Additionally, if we fail to achieve or improperly report on any stated environmental goals and commitments, the resulting negative publicity could adversely affect our reputation and/or our access to capital.
Investments in us may be subject to U.S. foreign investment regulations which may impose conditions on or limit certain investors’ ability to purchase our common stock, potentially making our common stock less attractive to investors. Our investments in U.S. companies may also be subject to U.S. foreign investment regulations.
Under the “Exon-Florio Amendment” to the U.S. Defense Production Act of 1950, as amended (the “DPA”), the U.S. President has the power to disrupt or block certain foreign investments in U.S. businesses if it is determined that such a transaction threatens U.S. national security. The Committee on Foreign Investment in the United States (“CFIUS”) has been delegated the authority to conduct national security reviews of certain foreign investments. CFIUS may impose mitigation conditions to grant clearance of a transaction.
The Foreign Investment Risk Review Modernization Act (“FIRRMA”), enacted in 2018, amended the DPA to, among other things, expand CFIUS’s jurisdiction beyond acquisitions of control of U.S. businesses. Under FIRRMA, CFIUS also has jurisdiction over certain foreign non-controlling investments in U.S. businesses that are involved with critical technology or critical infrastructure, or that collect and maintain sensitive personal data of U.S. citizens (“TID U.S. Businesses”), if the foreign investor receives specified triggering rights in connection with its investment. We are a TID U.S. Business because we develop and design technologies that would be considered critical technologies. Certain foreign investments in TID U.S. Businesses are subject to mandatory filing with CFIUS. These restrictions on the ability of foreign persons to invest in us could limit our ability to engage in strategic transactions that could benefit our stockholders, including a change of control, and could also affect the price that an investor may be willing to pay for our common stock.
Failure to comply with anti-bribery and anti-corruption laws could subject us to penalties and other adverse consequences.
As we operate and sell our platforms and services around the world, we are subject to the United States Foreign Corrupt Practices Act (“FCPA”), the U.K. Bribery Act, the U.S. domestic bribery statute contained in 18 U.S.C. § 201, the United States Travel Act, and other anti-corruption and anti-bribery laws and regulations in the jurisdictions in which we do business, both domestic and abroad. These laws and regulations generally prohibit companies, their employees, business partners, third-party intermediaries, representatives, and agents from authorizing, offering, or providing, directly or indirectly, improper payments to government officials, political candidates, political parties, or commercial partners for the purpose of obtaining or retaining business or securing an improper business advantage. We have operations, deal with and make sales to governmental or quasi-governmental entities in the United States and in non-U.S. countries.
The FCPA and other applicable anti-bribery and anti-corruption laws also may hold us liable for acts of corruption and bribery committed by our third-party business partners, representatives, and agents. We and our third-party business partners, representatives, and agents may have direct or indirect interactions with officials and employees of government agencies or state-owned or affiliated entities and we may be held liable for the corrupt or other illegal activities of our employees or such third parties even if we do not explicitly authorize such activities. The FCPA or other applicable laws and regulations also require that we keep accurate books and records and maintain internal controls and compliance procedures designed to prevent any such actions. While we have implemented policies and procedures to address compliance with such laws, we cannot ensure that our employees or other third parties working on our behalf will not engage in conduct in violation of our policies or applicable law for which we might ultimately be held responsible. Violations of the FCPA, the U.K. Bribery Act, and other laws may result in whistleblower complaints, adverse media coverage, investigations, imposition of significant legal fees, loss of export privileges, as well as severe criminal or civil sanctions, including suspension or debarment from U.S. Government contracting, and we may be subject to other liabilities and adverse effects on our reputation, which could negatively affect our business, results of operations, financial condition, and growth prospects. In addition, responding to any enforcement action may result in a significant diversion of management’s attention and resources and significant defense costs and other professional fees. Our exposure for violating these laws increases as our non-U.S. presence expands and as we increase sales and operations in international jurisdictions. Moreover, many international government procurement codes will automatically debar a company from participating in its procurement processes if such company is subject to these kind of allegations by any other government, compounding the impact of one potential violation across many markets.
Risks Related to Our Indebtedness
Our level of indebtedness could have a material adverse effect on us.
We have, and after this offering we expect that we will continue to have, a significant amount of indebtedness. On December 18, 2025, we entered into the 2025 Loan and Security Agreement, which provides for the $14.6 million Senior Term Loan, which was fully funded on December 18, 2025 and matures on September 1, 2028. The Senior Term Loan bears interest at a per annum rate equal to the greater of the Wall Street Journal Prime Rate and 6.75%. Concurrently, we entered into the 2025 Mezzanine Loan and Security Agreement, which provides for the $34.0 million Mezzanine Loan, which was fully funded on December 18, 2025 and matures on December 18, 2028. The Mezzanine Loan bears interest at (i) a per annum cash-pay rate equal to the greater of the Wall Street Journal Prime Rate plus a margin of 2.10% and 9.35%, and (ii) a per annum paid-in-kind rate equal to 1.50% (compounded monthly). As of December 31, 2025, our total indebtedness was $48.6 million, including $14.6 million under the Senior Term Loan and $34.0 million under the Mezzanine Loan. We intend to use a portion of the net proceeds received by us from this offering to repay all of our outstanding borrowings under the
2025 Loan and Security Agreement and the 2025 Mezzanine Loan and Security Agreement, together with accrued interest. See “Use of Proceeds”.
Our indebtedness could have significant effects on our business, such as:
•limiting our ability to borrow additional amounts to fund capital expenditures, acquisitions, debt service requirements, execution of our growth strategy and other purposes;
•limiting our ability to make investments, including acquisitions, loans and advances, and to sell, transfer or otherwise dispose of assets;
•requiring us to dedicate a substantial portion of our cash flow from operations to pay principal and interest on our borrowings, which would reduce availability of our cash flow to fund working capital, capital expenditures, acquisitions, execution of our growth strategy and other general corporate purposes;
•making us more vulnerable to adverse changes in general economic, industry and competitive conditions, in government regulation and in our business by limiting our ability to plan for and react to changing conditions;
•placing us at a competitive disadvantage compared with our competitors that have less debt; and
•exposing us to risks inherent in interest rate fluctuations because our borrowings are at variable rates of interest, which could result in higher interest expense in the event of increases in interest rates.
If we do not repay our outstanding indebtedness, we may not be able to refinance our debt or sell additional debt or equity securities or our assets on favorable terms, if at all, and if we must sell our assets, it may negatively affect our financial condition and results of operations. We may also incur additional indebtedness in the future to refinance our existing indebtedness or to finance proposed projects. The incurrence of additional indebtedness could magnify the risks described above.
Our debt agreements contain restrictions that may limit our flexibility in operating our business. Any failure to comply with these restrictions and covenants, or the volatile credit and capital markets, could have a material adverse effect on us.
Our existing loan agreements and related documents contain, and instruments governing any future indebtedness of ours would likely contain, a number of covenants that will impose significant operating and financial restrictions on us, including restrictions on our ability to, among other things:
•create liens on certain assets;
•incur additional debt;
•consolidate, merge, sell or otherwise dispose of all or substantially all of our assets;
•sell certain assets;
•pay dividends on or make distributions in respect of our capital stock;
•place restrictions on certain activities of subsidiaries;
•transact with our affiliates; and
•use a portion of our cash resources.
Any of these restrictions could limit our ability to plan for or react to market conditions and could otherwise restrict corporate activities. Any failure to comply with these covenants could result in a default
under our existing loan agreements or instruments governing any future indebtedness of ours. Additionally, our outstanding obligations under our existing loan agreements are secured by substantially all of our assets. Upon a default, unless waived, the lenders under our existing loan agreements could elect to terminate their commitments and cease making further loans, and, foreclose on our and our subsidiaries’ assets pledged to such lenders to secure our obligations under our existing loan agreements and related documents and force us into bankruptcy or liquidation. In addition, a default under our existing loan agreements could trigger a cross default under agreements governing any future indebtedness. If we experience a default under our existing loan agreements or instruments governing our future indebtedness, our business, financial condition, and results of operations may be adversely impacted.
Credit and capital markets can be volatile, which could make it more difficult for us to refinance our existing debt or to obtain additional debt or equity financings in the future. Such constraints could increase our costs of borrowing and could restrict our access to other potential sources of future liquidity.
Risks Related to Financial and Accounting Matters
Changes in our accounting estimates and assumptions could negatively affect our financial position, and results of operations.
We prepare our consolidated financial statements in accordance with U.S. GAAP. These accounting principles require us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of our financial statements. We are also required to make certain judgments that affect the reported amounts of revenues and expenses during each reporting period. We periodically evaluate our estimates and assumptions including those relating to revenue recognition, recoverability of assets, valuation of derivatives and nonredeemable non-controlling interests, contingencies, stock-based compensation, and income taxes. We base our estimates on historical experience and various assumptions that we believe to be reasonable based on specific circumstances. In particular, estimating our contract revenues requires judgments relative to assessing risks, including risks associated with estimating contract transaction prices and costs, assumptions for schedule and technical issues, customer-directed delays and reductions in scheduled deliveries, and unfavorable resolutions of claims and contractual matters. Due to the size and nature of many of our contracts, the estimation of total costs at completion is complicated and subject to many variables. For example, we must make assumptions regarding the length of time to complete the contract because costs include expected increases in wages and prices for materials; we also consider incentives or penalties related to performance on contracts and include them in the variable consideration to the extent that it is probable that a significant reversal in the amount of cumulative revenue recognized will not occur when the related uncertainty is resolved. There are many reasons estimated contract costs can increase, including inflation, labor challenges, supply chain challenges, and market volatility; delays or limitations in customer funding; design or other development challenges; production challenges (including from technical or quality issues and other performance concerns); inability to realize learning curves or other cost savings; changes in laws or regulations; actions necessary for long-term customer satisfaction; and natural disasters or environmental matters. Fixed-price contracts inherently tend to have more financial risk than cost-type contracts, including as a result of inflationary pressures, labor rates and shortages, challenges in estimating contract revenues and costs, and supplier challenges, some of which we may be particularly exposed to given the nature of our business. While management uses its best judgment to estimate costs associated with fixed-price contracts, future events can result in significant adjustments. These assumptions and estimates involve the exercise of a significant amount of judgment and discretion, which may evolve over time in light of operational experience, regulatory direction, developments in accounting principles and other factors. Actual results could differ from these estimates as a result of changes in circumstances, assumptions, policies, or developments in the business, which could materially affect our consolidated financial statements. In addition, we sometimes receive advanced payments and billings in excess of the amount of revenue we recognize, which we record as deferred revenue. As a result, our cash flows may be subject to fluctuation across periods in a manner that may be unrelated to our underlying performance.
We will incur increased costs as a result of operating as a publicly traded company, and our management will be required to devote substantial time to new compliance initiatives.
We will incur significant legal, accounting and other expenses that we did not incur as a private company. As a public company with listed equity securities, we will need to comply with new laws, regulations, and requirements, including the reporting requirements of the Exchange Act, which will require, among other things, that we file with the SEC annual, quarterly, and current reports with respect to our business and financial condition. In addition, the Sarbanes-Oxley Act, as well as rules subsequently adopted by the SEC and the New York Stock Exchange to implement provisions of the Sarbanes-Oxley Act, impose significant requirements on public companies, including requiring establishment and maintenance of effective disclosure and financial controls and changes in corporate governance practices. There are significant corporate governance and executive compensation related provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act that require the SEC to adopt additional rules and regulations in these areas such as “say on pay” and proxy access. Emerging growth companies are permitted to implement many of these requirements over a longer period and up to five years from the pricing of this offering. We intend to take advantage of this legislation for as long as we are permitted to do so. Once we become required to implement these requirements, we will incur additional compliance-related expenses. Stockholder activism, the current political environment and the current high level of government intervention and regulatory reform may lead to substantial new regulations and disclosure obligations, which may lead to additional compliance costs and impact the manner in which we operate our business in ways we cannot currently anticipate.
We expect the rules and regulations applicable to public companies to continue to increase our legal and financial compliance costs and to make some activities more time-consuming and costly. If these requirements divert the attention of our management and personnel from other business concerns, they could have a material adverse effect on us. The increased costs 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 solutions or services. For example, we expect these rules and regulations to make it more difficult and more expensive for us to obtain director and officer liability insurance and we may be required to incur substantial costs to maintain the same or similar coverage. We cannot predict or estimate the amount or timing of additional costs we may incur to respond to these requirements. The impact of these requirements could also make it more difficult for us to attract and retain qualified persons to serve on our board of directors, our board committees or as executive officers.
In addition, public company reporting and disclosure obligations may cause our business and financial condition to become more visible. We believe that this increased profile and visibility may result in threatened or actual litigation from time to time. If such claims are successful, our business, operating results and financial condition may be adversely affected, and even if the claims do not result in litigation or are resolved in our favor, these claims, and the time and resources necessary to resolve them and the diversion of the attention of management, could have a material adverse effect on us.
If we fail to implement and maintain an effective system of internal control over financial reporting, we may not be able to accurately determine or disclose our financial results. As a result, our stockholders could lose confidence in our financial results.
Upon completion of this offering, we will become subject to the informational requirements of the Exchange Act and will be required to file reports and other information with the SEC. As a publicly traded company, we will be required to maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in the reports that we file with, or submit to, the SEC is recorded, processed, summarized, and reported, within the time periods specified in the SEC’s rules and forms. They include controls and procedures designed to ensure that information required to be disclosed in reports filed with, or submitted to, the SEC is accumulated and communicated to management, including our principal executive and principal financial officers, to allow timely decisions regarding required disclosure. Effective disclosure controls and procedures are necessary for us to provide reliable reports, effectively prevent and detect fraud, and to operate successfully as a public company. Designing and
implementing effective disclosure controls and procedures is a continuous effort that requires significant resources and devotion of time. In recent years, management has identified areas within our internal control environment requiring enhancement, and we may discover additional deficiencies in our disclosure controls and procedures that may be difficult or time consuming to remediate in a timely manner. Any failure to maintain effective disclosure controls and procedures or effective internal control over financial reporting, or to timely effect any necessary improvements thereto, could cause us to fail to meet our reporting obligations (which could affect the listing of our common stock). Additionally, ineffective disclosure controls and procedures or internal control over financial reporting could also adversely affect our ability to prevent or detect fraud, harm our reputation and cause investors to lose confidence in our reports filed with, or submitted to, the SEC, which would likely have a negative effect on the market price of our common stock.
Our business could be adversely impacted by deficiencies in our disclosure controls and procedures or internal control over financial reporting.
The design and effectiveness of our disclosure controls and procedures and internal control over financial reporting, including new and revised financial and IT-related controls that we have been designing, implementing and operating, may not prevent all errors, misstatements or misrepresentations. While management will continue to review the effectiveness of our disclosure controls and procedures and internal control over financial reporting, there can be no guarantee that our internal control over financial reporting will be effective in accomplishing all control objectives all of the time. As we continue strengthening our control framework, areas for improvement have been identified over time, and deficiencies in our internal control over financial reporting, including any material weakness which may occur in the future, could result in material misstatements of our results of operations, restatements of our financial statements, a decline in our stock price, or otherwise materially adversely affect us.
Material weaknesses in the internal control over financial reporting of Hawkeye and ISA have been identified. If we are unable to remediate these material weaknesses or maintain effective internal controls, the accuracy and timeliness of our financial reporting may be materially adversely affected, which could cause the market price of our common stock to decline, lessen investor confidence and harm our business.
In connection with the audit of financial statements for the year ended December 31, 2025, material weaknesses in internal control over financial reporting were identified at Hawkeye and ISA. Specifically, Hawkeye was identified as having a material weakness in internal control over financial reporting related to:
•the design and implementation of effective controls to identify errors in the calculation of compensation expense related to stock options with performance conditions.
In addition, ISA was identified as having material weaknesses in internal control over financial reporting which relate to:
•the maintenance of sufficient segregation of duties over the performance of control activities for financial close and reporting, including over the review and approval of journal entries;
•the maintenance of sufficient segregation of duties over the performance of control activities for the order to cash and procure to pay processes; and
•the design and implementation of effective information technology general controls in the areas of user access related to certain information technology systems that support our financial reporting process;
The PCAOB defines a material weakness as “a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company’s annual or interim financial statements will not be prevented or detected on
a timely basis.” We are performing additional accounting analyses and other procedures, including consulting with third-party subject matter experts, to ensure the proper accounting and financial disclosures for these matters. We recently hired a Chief Accounting Officer and are in the process of hiring other qualified accounting, financial reporting, information technology, and other key management personnel with public company experience. We will continue to utilize third-party subject matter experts to assist in enhancing Hawkeye’s and ISA’s internal control processes and remediating these material weaknesses. Until our remediation plan is implemented, tested, and deemed effective, we cannot assure that our actions will adequately remediate the material weaknesses in internal control over financial reporting identified at Hawkeye and ISA or that additional material weaknesses in internal control over financial reporting will not be identified at Hawkeye and ISA in the future.
As a public company, 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 in future annual reports on Form 10-K to be filed with the SEC beginning with the second annual report following our initial public offering. Failure to comply with the Sarbanes-Oxley Act could potentially subject us to sanctions or investigations by the SEC or other regulatory authorities, which would require additional financial and management resources. If we are unable to conclude on an ongoing basis that our internal control over financial reporting is effective in accordance with Section 404 of the Sarbanes-Oxley Act, we may be required to report additional material weaknesses at Hawkeye and ISA in future periods, and our ability to accurately and timely report our financial results could be adversely affected. If we are unable to conclude that we have effective internal controls over financial reporting, investors could lose confidence in our reported financial information, which could have a material adverse effect on the trading price of our common stock. Failure to remedy material weaknesses in internal control over financial reporting at Hawkeye and ISA, or to implement or maintain other effective control systems required of public companies, could also restrict our future access to the capital markets.
Our ability to use net operating loss carryforwards and certain other tax attributes may be limited.
For the year ended December 31, 2025, the Company had approximately $134 million of federal net operating loss carryforwards, of which $6.0 million are subject to expiration beginning in 2035. It is possible that we will not generate taxable income sufficient to use these net operating loss carryforwards before their expiration, or at all. U.S. federal net operating losses incurred in 2018 and in future years may be carried forward indefinitely, but the deductibility of such net operating losses in a taxable year is limited to 80% of taxable income in such year.
In addition, our federal and state net operating loss carryforwards and certain other tax attributes (such as research and development tax credits) may be subject to significant limitations under Sections 382 and 383 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), respectively, and similar provisions of state law. These limitations apply if we undergo an “ownership change,” which generally is defined as a greater than 50 percentage point change (by value) in the ownership of our equity by certain stockholders over a rolling three-year period. We may have experienced ownership changes in the past and we may experience additional ownership changes in the future as a result of subsequent shifts in our stock ownership, including as a result of this offering, some of which may be outside of our control. If we have undergone an ownership change in the past, or if we undergo an ownership change in the future, our ability to use our pre-change net operating loss carryforwards and other pre-change tax attributes to offset our post-change income or taxes may be limited, which could harm our future operating results by effectively increasing our future tax obligations. Similar provisions of state tax law also may apply to limit the use of our state net operating loss carryforwards or other tax attributes. In addition, at the state level, there may be periods during which the use of net operating losses is suspended or otherwise limited, which could accelerate or permanently increase our state taxes.
Our operating results may be negatively affected if we are required to pay additional sales and use tax, value added tax, or other transaction taxes, and we could be subject to liability with respect to all or a portion of past or future sales.
We currently collect and remit sales and use, value added and other transaction taxes in certain of the jurisdictions where we do business based on our assessment of the amount of taxes owed by us in such jurisdictions. However, in some jurisdictions in which we do business, we do not believe that we owe such taxes, and therefore we currently do not collect and remit such taxes in those jurisdictions or record contingent tax liabilities in respect of those jurisdictions. A successful assertion that we are required to pay additional taxes in connection with sales of our products and solutions, or the imposition of new laws or regulations, or the interpretation of existing laws and regulations, requiring the payment of additional taxes, would result in increased costs and administrative burdens for us. If we are subject to additional taxes and decide to offset such increased costs by collecting and remitting such taxes from our customers, or otherwise passing those costs through to our customers, our customers may be discouraged from purchasing our products and solutions. Any increased tax burden may decrease our ability or willingness to compete in relatively burdensome tax jurisdictions, result in substantial tax liabilities related to past or future sales, or otherwise seriously harm our business, results of operations, financial condition or prospects.
Risks Related to Our Status as a Public Benefit Corporation
Our status as a public benefit corporation may not result in the benefits that we anticipate.
We will make an election to be treated as a public benefit corporation under Delaware law, to be effective upon the completion of this offering. As a public benefit corporation, we will be required to produce a public benefit and to operate in a responsible and sustainable manner, and to balance our stockholders’ pecuniary interests, the best interests of those materially affected by our conduct, and the specific public benefit of preserving the safety, security, and resilience of the American people and our allies that is identified by our amended and restated certificate of incorporation. There is no assurance that we will achieve our public benefit purpose or that the expected positive economic impact from being a public benefit company will be realized. Accordingly, being a public benefit corporation and complying with our related obligations could negatively impact our ability to provide the highest possible return to our stockholders.
As a public benefit corporation, we will be required to provide our stockholders with a report at least biennially assessing our overall public benefit performance and our success in achieving our specific public benefit purpose. To the extent we are unable to provide this report in a timely manner, or if the report is not viewed favorably by our stockholders (or those other parties to whom we provide such report, if any) because we are unable to report sufficient progress toward our public benefit or otherwise, our reputation and status as a public benefit corporation may be harmed, which could in turn have a material adverse effect on our business, financial condition, and results of operations.
Our directors will have a dual fiduciary duty to not only our stockholders’ pecuniary interests but also to our specific public benefit, and must consider the best interests of other stakeholders affected by our conduct. If a conflict between such interests arises, there is no guarantee such a conflict would be resolved in favor of our stockholders’ pecuniary interests.
While directors of traditional corporations are required to make decisions they believe to be in the best interests of their stockholders, directors of a public benefit corporation have a fiduciary dual duty to balance the stockholders’ pecuniary interests and the company’s specific public benefit, and must also consider the best interests of other stakeholders materially affected by the public benefit corporation’s conduct. Thus, our directors will not merely be permitted, but obligated, to consider our specific public benefit and the interests of other stakeholders. Under Delaware law, directors are shielded from liability for breach of these fiduciary obligations if they make informed and disinterested decisions that serve a rational purpose. In the event of a conflict between the financial interests of our stockholders and the
interests of our specific public benefit, our directors will be obligated to make informed and disinterested decisions that serve a rational purpose; thus, there is no guarantee that such a conflict would be resolved in favor of our stockholders’ financial interests. Accordingly, Delaware law and our public benefit corporation status could result in our board of directors making decisions which are less financially lucrative for our stockholders in the short- and/or long-term; this could harm our business, financial condition, and results of operations, which in turn could cause our stock price to decline.
As a public benefit corporation, our management of the business in a manner that balances pecuniary interests of stockholders with the interests of stakeholders and our specific public benefit, in addition to our operating in a responsible and sustainable manner, may negatively influence our financial performance.
As a public benefit corporation, our board of directors will have a dual fiduciary duty to balance the pecuniary interest of our stockholders and the specific public benefit of preserving the safety, security, and resilience of the American people and our allies identified in our amended and restated certificate of incorporation. Our board of directors must also consider the best interests of those materially affected by our conduct. And, as a public benefit corporation, we are obligated to operate in a responsible and sustainable manner. While we believe our public benefit designation and related statutory obligations will benefit our stockholders, in balancing these interests our board of directors may authorize and we may take actions even if those actions do not maximize our short- or medium-term financial results. Any longer-term benefits that are intended by or expected from such decisions or actions may not materialize within the timeframe we expect or at all and such decisions or actions may have an immediate negative effect on amounts available for distribution to our stockholders. Accordingly, being a public benefit corporation and complying with our related obligations could have a material adverse effect on our business, financial condition, and results of operations.
As a public benefit corporation, Delaware law may make an acquisition of our company more difficult.
As a public benefit corporation, we may be less attractive as a takeover target than a traditional company and, therefore, your ability to realize your investment through an acquisition may be limited. Public benefit corporations may also not be attractive targets for activists or hedge fund investors because new directors would still have to consider and give appropriate weight to the public benefit along with stockholder value, and stockholders can enforce this through derivative suits. Further, by requiring the boards of directors of public benefit corporations to balance stockholders’ economic interests with stakeholders’ best interests and the company’s public benefit, Delaware public benefit corporation law could potentially make it easier for a board to reject a hostile bid, even where the takeover would provide the greatest short-term financial yield to investors. Furthermore, the board of directors of a public benefit corporation must decline to recommend to its stockholders a sale of the company, even if the sale would be at a higher price than alternatives, if it does not believe that the acquirer will maintain its fiduciary duty to the public benefit.
As a public benefit corporation, we may be subject to increased derivative litigation concerning our dual fiduciary duty to stockholders’ economic interests and our public benefit and our obligation to consider the best interests of our stakeholders, the occurrence of which may have an adverse impact on our financial condition and results of operations.
As a public benefit corporation, our stockholders (if they, individually or collectively, own at least 2% of our outstanding capital stock or shares having at least $2 million in market value (whichever is less)) are entitled to file a derivative lawsuit claiming that our directors failed to balance stockholders’ economic interests, stakeholders’ best interests and our public benefit. Such derivative actions would be subject to the provision of our amended and restated certificate of incorporation requiring that, to the fullest extent permitted by law, such lawsuits be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, the federal district court of the State of Delaware. Although traditional corporations are subject to other types of derivative actions brought by
stockholders, this type of claim does not exist for traditional corporations. Therefore, we may be subject to the possibility of increased derivative litigation, which would require the attention of management and, as a result, may adversely impact management’s ability to effectively execute our strategy. Any such derivative litigation could be costly and have an adverse impact on our financial condition and results of operations.
Risks Related to this Offering and Ownership of our Common Stock
We are an “emerging growth company” and we cannot be certain if the reduced disclosure requirements applicable to “emerging growth companies” will make our common stock less attractive to investors.
We are an “emerging growth company,” as defined in Section 2(a)(19) of the Securities Act, and as such we may take advantage of certain exemptions and relief from various reporting requirements applicable to other public companies that are not “emerging growth companies,” including:
•we will not be required to comply with the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act;
•we will be subject to reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements; and
•we will not be required to hold nonbinding advisory votes on executive compensation or stockholder approval of any golden parachute payments not previously approved.
In addition, Section 107 of the JOBS Act provides that an emerging growth company can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards, meaning that such company can delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected to take advantage of this extended transition period, and as a result, our financial statements may not be comparable with similarly situated public companies. We may remain an “emerging growth company” until the fiscal year-end following the fifth anniversary of the completion of this initial public offering, though we may cease to be an “emerging growth company” earlier under certain circumstances, including (1) if our gross revenue exceeds $1.235 billion in any fiscal year, (2) if we become a large accelerated filer, with at least $700 million of equity securities held by non-affiliates, or (3) if we issue more than $1.0 billion in non-convertible notes in any three-year period.
Investors may find our common stock less attractive if we rely on the exemptions and relief granted by the JOBS Act and, as a result, there may be a less active trading market for our common stock and our stock price may decline and/or become more volatile.
An active trading market for our common stock may never develop or be sustained.
We have applied for the listing of our common stock on the New York Stock Exchange under the symbol “HAWK”. However, we cannot be certain that an active trading market for our common stock will develop on that exchange or elsewhere or, if developed, that any market will be sustained. Furthermore, we cannot be certain that we will continue to satisfy the continued listing standards of the New York Stock Exchange. If we fail to satisfy the continued listing standards, we could be de-listed, which would have a material adverse effect on the liquidity and price of our common stock. Accordingly, we cannot assure you of the liquidity of any trading market, your ability to sell your shares of our common stock when desired or the prices that you may obtain for your shares of our common stock.
Our stock price may fluctuate significantly following this offering, and you may not be able to resell shares of our common stock at or above the price you paid or at all, and you could lose all or part of your investment as a result.
Even if a trading market develops, the market price of our common stock may be highly volatile and could be subject to wide fluctuations. The initial public offering price for our common stock will be determined through negotiations among the underwriters and us and may vary from the market price of our common stock following this offering. You may not be able to resell your shares at or above the initial public offering price due to a number of factors which are beyond our control, including:
•results of operations that vary from the expectations of securities analysts and investors;
•results of operations that vary from those of our competitors;
•changes in expectations as to our future financial performance, including financial estimates and investment recommendations by securities analysts and investors;
•changes in economic conditions for companies in our industry;
•changes in market valuations of, or earnings and other announcements by, companies in our industry;
•declines in the market prices of stocks generally, particularly those of companies in our industry;
•additions or departures of key management personnel;
•strategic actions by us or our competitors;
•announcements by us, our competitors, our suppliers or our distributors of significant contracts, price reductions, new products or technologies, acquisitions, dispositions, joint marketing relationships, joint ventures, other strategic relationships or capital commitments or announcements relating to government awards or changes in government spending;
•difficulties in integrating any new acquisitions we may make;
•changes in preference of our customers and our market share;
•changes in general economic or market conditions or trends in our industry or the economy as a whole;
•changes in business or regulatory conditions;
•future sales of our common stock or other securities, including in connection with the end of lock-up periods;
•investor perceptions of or the investment opportunity associated with our common stock relative to other investment alternatives;
•the public’s response to press releases or other public announcements by us or third parties, including our filings with the SEC;
•changes or proposed changes in laws or regulations or differing interpretations or enforcement thereof affecting our business;
•announcements relating to litigation or governmental investigations;
•guidance, if any, that we provide to the public, any changes in this guidance or our failure to meet this guidance;
•the development and sustainability of an active trading market for our stock;
•changes in accounting principles; and
•other events or factors, including those resulting from informational technology system failures and disruptions, natural disasters, pandemics, war, acts of terrorism, or responses to these events.
In addition, extreme price and volume fluctuations in the stock markets have affected and continue to affect the stock prices of many companies. Often, their stock prices have fluctuated in ways unrelated or disproportionate to their operating performance. In the past, stockholders have filed securities class action litigation against companies following periods of market volatility. Such securities litigation, if instituted against us, could subject us to substantial costs, divert resources and the attention of management from our business and seriously harm our business.
Our quarterly operating results have fluctuated and may in the future fluctuate significantly, which makes forecasting our future operating results difficult and could cause our operating results to fall below expectations or any guidance we may provide.
Our operating results have fluctuated from quarter to quarter and annually at points in the past, and they may do so in the future, which makes it difficult for us to predict our future operating results. Results of any one fiscal quarter or year are not a reliable indication of results to be expected for any other fiscal quarter or for any year. If we fail to increase our results over prior periods, to achieve our projected results or to meet the expectations of securities analysts or investors, our stock price may decline, and the decrease in the stock price may be disproportionate to the shortfall in our financial performance. Results may be affected by various factors, including those described in these risk factors. As a result, comparing our operating results on a period-to-period basis may not be meaningful.
Further, projections are based upon a number of assumptions and estimates that, while presented with numerical specificity, are inherently subject to significant business, economic, and competitive uncertainties and contingencies, many of which are beyond our control and are based upon specific assumptions with respect to future business decisions, some of which will change. The rapidly evolving market in which we operate may make it difficult to evaluate our current business and our future prospects, including our ability to plan for and model future growth. The principal reason that we may release this data is to provide a basis for our management to discuss our business outlook with analysts and investors. We do not accept any responsibility for any projections or reports published by any such persons. Guidance is necessarily speculative in nature, and it can be expected that some or all of the assumptions of the guidance furnished by us will not materialize or will vary significantly from actual results, particularly any guidance relating to the results of operations of acquired businesses or companies as our management will be less familiar with their business, procedures, and operations. This variability and unpredictability could also result in our failing to meet the expectations of industry or financial analysts or investors for any period. If our revenue or operating results fall below the expectations of analysts or investors or below any guidance we may provide, or if the guidance we provide is below the expectations of analysts or investors, the price of our common stock could decline substantially. Such a stock price decline could occur even when we have met any previously publicly stated guidance we may provide.
We currently do not intend to declare dividends on our common stock in the foreseeable future and, as a result, your returns on your investment may depend solely on the appreciation of our common stock.
We currently do not expect to declare any dividends on our common stock in the foreseeable future. Instead, we anticipate that all of our earnings in the foreseeable future will be used for working capital and general corporate purposes. Any determination to declare or pay dividends in the future will be at the discretion of our board of directors, subject to applicable laws and dependent upon a number of factors, including our earnings, capital requirements and overall financial conditions. In addition, our ability to pay
dividends on our common stock is currently limited by the terms of our existing loan agreements and related documents and may be further restricted by the terms of any future debt or preferred securities. Accordingly, your only opportunity to achieve a return on your investment may be if the market price of our common stock appreciates and you sell your shares at a profit. The market price for our common stock may never exceed, and may fall below, the price that you pay for such common stock. See “Dividend Policy.”
Investors in this offering will suffer immediate and substantial dilution.
The initial public offering price per share of common stock will be substantially higher than our adjusted net tangible book value per share immediately after this offering. As a result, you will pay a price per share of common stock that substantially exceeds the per share book value of our tangible assets after subtracting our liabilities. In addition, you will pay more for your shares of common stock than the amounts paid by our existing stockholders. At the initial public offering price of $ per share of common stock, you will incur immediate and substantial dilution in an amount of $ per share of common stock. If the underwriters exercise their option to purchase additional shares, you will experience additional dilution. See “Dilution.”
You may be diluted by the future issuance of additional common stock in connection with our incentive plans, exercise of warrants, acquisitions or otherwise.
Future issuances of our common stock, including issuances under our equity incentive plans or in connection with the exercise of warrants, any future investments or acquisitions, could result in dilution to existing holders of our common stock. Such issuances, or the perception that such issuances may occur, could depress the market price of our common stock. We may issue additional equity securities from time to time, including equity securities that could have rights senior to those of our common stock. As a result, purchasers of shares of common stock in this offering bear the risk that future issuances of equity securities may reduce the value of their shares and dilute their ownership interests. Also, to the extent outstanding stock-based awards are issued or become vested, there will be further dilution to the holders of our common stock.
Future sales, or the perception of future sales, by us or our existing stockholders in the public market following this offering could cause the market price for our common stock to decline.
After this offering, the sale of shares of our common stock in the public market, or the perception that such sales could occur, could harm the prevailing market price of shares of our common stock. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and at a price that we deem appropriate.
If our existing stockholders, including employees, who have or obtain equity, sell, or indicate an intention to sell, substantial amounts of our common stock in the public market after the lock-up period and legal restrictions on resale discussed in this prospectus expire or lapse, as applicable, the trading price of our common stock could decline. Upon the completion of this offering, we will have outstanding a total of shares of common stock (assuming the underwriters exercise their option to purchase additional shares in full). Of these shares, only the shares of common stock sold in this offering will be freely tradable without restrictions or further registration under the Securities Act of 1933, as amended, or the Securities Act, except for any shares held by persons who are not our “affiliates” as defined in Rule 144 under the Securities Act and who have complied with the holding period requirements of Rule 144 under the Securities Act.
In connection with this offering, we and our officers, directors, and holders of substantially all of our common stock and securities convertible into or exercisable for our common stock have agreed with the underwriters, subject to certain exceptions, not to dispose of or hedge any of the common stock or securities convertible into or exchangeable for shares of common stock during the period from the date of this prospectus and continuing through the close of the first day on which the New York Stock Exchange is open for the buying and selling of securities (a “Trading Day”) on or after the 180th day (the “180th
Day”) after the date of this prospectus, or, if the 180th Day is not a Trading Day, immediately after the close of the last Trading Day immediately preceding the 180th Day, except with the prior written consent of Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC. When the lock-up period in these agreements expires, we, our officers and directors and such other stockholders will be able to sell shares in the public market. In addition, the underwriters may, in their sole discretion, release all or some portion of the shares subject to the lock-up agreements prior to the expiration of the lock-up period. See “Shares Eligible for Future Sale.” As restrictions on resale end, the market price of our shares of common stock could drop significantly if the holders of these shares sell them or are perceived by the market as intending to sell them. These factors could also make it more difficult for us to raise additional funds through future offerings of our shares of common stock or other securities.
In addition, certain of our stockholders will have demand and “piggy-back” registration rights with respect to our common stock that they will retain following this offering. See “Shares Eligible for Future Sale” for a discussion of the shares of our common stock that may be sold into the public market in the future, including in connection with registration rights we have granted.
Furthermore, at our request, the underwriters have reserved up to shares of our common stock, or 5% of the shares to be issued by us and offered by this prospectus (excluding the additional shares that the underwriters have an option to purchase) for sale, at the initial public offering price, to certain of our directors, officers, employees and others under the directed share program. Participants in the directed share program will not be subject to the terms of any lock-up agreement with respect to any shares purchased through the directed share program, except in the case of shares purchased by any of our directors or officers. Future sales of such shares may cause the price of our shares of common stock to be reduced or become more volatile. See “Underwriting—Directed Share Program.”
In the future, we may also issue our securities in connection with investments or acquisitions. The number of shares of our common stock issued in connection with an investment or acquisition could constitute a material portion of our then-outstanding shares of our common stock. Any issuance of additional securities in connection with investments or acquisitions may result in additional dilution to you.
We have broad discretion to determine how to use our assets, including the funds we receive from this offering, and may use them in ways that may not enhance our results of operations or the price of our common stock.
We have broad discretion over our assets, including the use of proceeds we receive from this offering, and we could utilize our assets or spend the proceeds we receive from this offering in ways our stockholders may not agree with or that do not yield a favorable return, or no return at all. We currently expect to use the net proceeds from this offering for working capital and other general corporate purposes. The use of the net proceeds from this offering may differ substantially from our current plans. If we do not invest or apply the proceeds we receive from this offering in ways that improve our results of operations, we may fail to achieve expected financial results or be required to raise additional capital, which could cause our stock price to decline. In addition, pending their use, the proceeds of this offering may be placed in investments that do not produce income or that may lose value.
If securities analysts do not publish research or reports about our business or if they downgrade our stock or our sector, our stock price and trading volume could decline.
The trading market for our common stock will depend in part on the research and reports that industry or financial analysts publish about us, our business, our market or our competitors. We do not control these analysts and cannot assure you that any analysts will initiate or maintain research coverage of us and our stock. Furthermore, if one or more of the analysts who do cover us provide more favorable recommendations about our competitors or downgrade our stock or our industry, or the stock of any of our competitors, or publish inaccurate or unfavorable research about our business, the price of our stock could decline. If one or more of these analysts ceases coverage of us or fails to publish reports on us
regularly, we could lose visibility in the market, which in turn could cause our stock price or trading volume to decline.
Provisions in our charter documents and under Delaware law could make an acquisition of us, which may be beneficial to our stockholders, more difficult and may limit attempts by our stockholders to replace or remove our current management.
Provisions in our amended and restated certificate of incorporation and amended and restated bylaws may have the effect of delaying or preventing a merger, acquisition, or other change of control of the company that the stockholders may consider favorable. In addition, because our board of directors is responsible for appointing the members of our management team, these provisions may frustrate or prevent any attempts by our stockholders to replace or remove our current management by making it more difficult for stockholders to replace members of our board of directors.
Among other things, our amended and restated certificate of incorporation and amended and restated bylaws include provisions that:
•provide that our board of directors is classified into three classes of directors with staggered three-year terms;
•permit our board of directors to establish the number of directors and fill any vacancies and newly created directorships;
•require super-majority voting by our stockholders to amend some provisions in our amended and restated certificate of incorporation and amended and restated bylaws;
•authorize the issuance of “blank check” preferred stock that our board of directors could use to implement a stockholder rights plan;
•only a majority of our board of directors will be authorized to call a special meeting of stockholders;
•eliminate the ability of our stockholders to call special meetings of stockholders;
•do not provide for cumulative voting;
•directors may only be removed “for cause” and only with the approval of at least 66 2/3% of the voting power of our then-outstanding capital stock;
•prohibit stockholder action by written consent, which requires all stockholder actions to be taken at a meeting of our stockholders;
•our board of directors is expressly authorized to make, alter, or repeal our bylaws; and
•establish advance-notice requirements for nominations for election to our board of directors or for proposing matters that can be acted upon by stockholders at annual stockholder meetings.
Moreover, Section 203 of the Delaware General Corporation Law (the “DGCL”) may discourage, delay, or prevent a change in control of our company. Section 203 imposes certain restrictions on mergers, business combinations, and other transactions between us and holders of 15% or more of our common stock.
Our amended and restated certificate of incorporation contains exclusive forum provisions for certain claims, which may limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, or employees.
Our amended and restated certificate of incorporation provides that the Court of Chancery of the State of Delaware, to the fullest extent permitted by law, will be the exclusive forum for any derivative
action or proceeding brought on our behalf, any action asserting a breach of fiduciary duty, any action asserting a claim against us arising pursuant to the DGCL, our amended and restated certificate of incorporation, or our amended and restated bylaws, or any action asserting a claim against us that is governed by the internal affairs doctrine.
Moreover, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all claims brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. Our amended and restated certificate of incorporation provides that the federal district courts of the United States will, to the fullest extent permitted by law, be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act, or the Federal Forum Provision. Our decision to adopt the Federal Forum Provision followed a decision by the Supreme Court of the State of Delaware holding that such provisions are facially valid under Delaware law. While there can be no assurance that federal or state courts will follow the holding of the Supreme Court of the State of Delaware or determine that the Federal Forum Provision should be enforced in a particular case, application of the Federal Forum Provision means that suits brought by our stockholders to enforce any duty or liability created by the Securities Act must be brought in federal court and cannot be brought in state court.
Section 27 of the Exchange Act creates exclusive federal jurisdiction over all claims brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. In addition, the Federal Forum Provision applies to suits brought to enforce any duty or liability created by the Exchange Act. Accordingly, actions by our stockholders to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder must be brought in federal court.
Our stockholders will not be deemed to have waived our compliance with the federal securities laws and the regulations promulgated thereunder.
Any person or entity purchasing or otherwise acquiring or holding any interest in any of our securities shall be deemed to have notice of and consented to our exclusive forum provisions, including the Federal Forum Provision. These provisions may limit a stockholders’ ability to bring a claim in a judicial forum of their choosing for disputes with us or our directors, officers, or employees, which may discourage lawsuits against us and our directors, officers, and employees. Alternatively, if a court were to find the choice of forum provision contained in our amended and restated certificate of incorporation or amended and restated bylaws to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could harm our business, financial condition, and results of operations.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements about us and our industry that involve substantial risks and uncertainties. All statements contained in this prospectus other than statements of historical fact, including statements regarding our future results of operations and financial condition, our business strategy and plans, market growth, and our objectives for future operations, are forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “will,” or “would” or the negative of these terms or other similar expressions intended to identify statements about the future. These statements speak only as of the date of this prospectus and involve known and unknown risks, uncertainties, and other important factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. We have based these forward-looking statements largely on our current expectations and projections about future events and financial trends that we believe may affect our business, financial condition, and results of operations. These forward-looking statements include statements concerning the following:
•our expectations regarding financial condition or results of operations, including our expectations regarding revenue, cost of sales and operating expenses, and our ability to achieve and maintain profitability;
•our future sources of and needs for liquidity and capital resources;
•our expectations regarding the size and growth of the market for our products and services;
•our business strategies and our ability to grow our business;
•our ability to continue to successfully design, build, and operate our satellites and payloads;
•our expectations regarding the growth of the global RF exploitation market and increasing demand for space-based SIGINT;
•our ability to enhance existing or develop new products and services and the impact of any such enhancements or developments;
•our ability to improve and expand our operations and information systems;
•our ability to realize the anticipated benefits from integrating our business with the business of ISA;
•the implementation or interpretation of current or future regulations and legislation;
•the impact of disruptions in U.S. Government operations and funding and the budgetary priorities of the U.S. Government;
•our ability to maintain contracts and relationships with our U.S. Government and allied international government customers;
•our ability to realize our backlog;
•our ability to attract and retain skilled personnel and senior management;
•the increased expenses associated with being a public company;
•our intended use of the net proceeds from this offering;
•our ability to maintain our existing, or to develop additional, valuable intellectual property rights;
•our focus on a specific public benefit purpose and potential resulting negative effects on our financial performance; and
The foregoing list of risks is not exhaustive. Other sections of this prospectus may include additional factors that could harm our business and financial performance. Moreover, we operate in a very competitive and rapidly changing environment. New risk factors and uncertainties may emerge from time to time, and it is not possible for management to predict all risk factors and uncertainties. As a result of these factors, we cannot assure you that the forward-looking statements in this prospectus will prove to be accurate. Except as required by applicable law, we do not plan to publicly update or revise any forward-looking statements contained herein, whether as a result of any new information, future events, changed circumstances or otherwise. You should, however, review the factors and risks and other information we describe in the reports we will file from time to time with the SEC after the date of this prospectus.
Because forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified and some of which are beyond our control, you should not rely on these forward-looking statements as predictions of future events. Although we believe that we have a reasonable basis for each forward-looking statement contained in this prospectus, the events and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could differ materially from those contained in or implied by any forward-looking statements. You should refer to the section titled “Risk Factors” of this prospectus for a discussion of important factors that may cause our actual results to differ materially from those expressed or implied by our forward-looking statements. You should read this prospectus and the documents that we reference in this prospectus and have filed as exhibits to the registration statement, of which this prospectus is a part, completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
MARKET AND INDUSTRY DATA
Information contained in this prospectus concerning our industry and the market in which we operate, including our general expectations and market position, market opportunity and market size is based on information from various sources, including a study we commissioned from Renaissance Strategic Advisors. In presenting this information, we have also made assumptions based on such data and other similar sources, and on our knowledge of, and in our experience to date in, the markets for our services. This information involves a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates. Although neither we nor the underwriters have independently verified the accuracy or completeness of any third-party information, we believe the market position, market opportunity and market size information included in this prospectus is reliable. The industry in which we operate is subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the “Risk Factors” section. These and other factors could cause results to differ materially from those expressed in the estimates made by the independent parties and by us.
USE OF PROCEEDS
We estimate that we will receive net proceeds from this offering of approximately $ million (or approximately $ million if the underwriters’ option to purchase additional shares of common stock is exercised in full) based on an assumed initial public offering price of $ per share, the midpoint of the price range set forth on the cover page of this prospectus, after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
Each $1.00 increase (decrease) in the assumed initial public offering price of $ per share would increase (decrease) the net proceeds to us from this offering by approximately $ 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 underwriting discounts and commissions and estimated offering expenses payable by us. Each increase (decrease) of 1.0 million in the number of shares we are offering would increase (decrease) the net proceeds to us from this offering, after deducting the underwriting discounts and commissions and estimated offering expenses payable by us, by approximately $ million, assuming the assumed initial public offering price stays the same.
The principal purposes of this offering are to increase financial flexibility, create a public market for our common stock and enable access to the public equity markets for us and our stockholders. We intend to use $ of the net proceeds from this offering to repay all of our outstanding borrowings under the 2025 Loan and Security Agreement and the 2025 Mezzanine Loan and Security Agreement, together with accrued interest. As of December 31, 2025, our total indebtedness was $48.6 million, including $14.6 million under the Senior Term Loan and $34.0 million under the Mezzanine Loan. The Senior Term Loan bears interest at a per annum rate equal to the greater of the Wall Street Journal Prime Rate and 6.75% and matures on September 1, 2028. The Mezzanine Loan bears interest at (i) a per annum cash-pay rate equal to the greater of the Wall Street Journal Prime Rate plus a margin of 2.10% and 9.35%, and (ii) a per annum paid-in-kind rate equal to 1.50% (compounded monthly) and matures on December 18, 2028.
We also expect to use up to $15.0 million of the net proceeds from this offering to make the deferred payment included in the total consideration for the ISA Acquisition. We expect to use any remaining net proceeds from this offering for working capital and other general corporate purposes.
The expected use of net proceeds from this offering represents our intentions based upon our present plans and business conditions. We cannot predict with certainty all of the particular uses for the proceeds of this offering or the amounts that we will actually spend on the uses set forth above. Accordingly, our management will have significant flexibility in applying the net proceeds of this offering. The timing and amount of our actual expenditures will be based on many factors, including cash flows from operations and the anticipated growth of our business. Pending their use, we intend to invest the net proceeds of this offering in a variety of capital-preservation investments, including short- and intermediate-term, interest-bearing, investment-grade securities and government securities.
DIVIDEND POLICY
We have never declared or paid, and do not anticipate declaring or paying in the foreseeable future, any cash dividends on our capital stock. We currently intend to retain all available funds and any future earnings to support our operations and finance the growth and development of our business. Any future determination related to our dividend policy will be made at the discretion of our board of directors and will depend upon, among other factors, our results of operations, financial condition, capital requirements, contractual restrictions, business prospects and other factors our board of directors may deem relevant. In addition, the 2025 Loan and Security Agreement contains certain customary representations, warranties, and covenants that limit our ability to pay dividends or make other payments in respect of our capital stock.
CAPITALIZATION
The following table sets forth our cash and cash equivalents, and our capitalization as of December 31, 2025:
•on an actual basis;
•on a pro forma basis to give effect to: (1) the sale and issuance of 995,309 shares of Series E Preferred Stock for net proceeds of $ million subsequent to December 31, 2025, (2) the Warrant Net Exercises, (3) the automatic conversion of all outstanding shares of our convertible preferred stock (including shares of Series E Preferred Stock issued subsequent to December 31, 2025) into an aggregate of 68,987,988 shares of our common stock upon the closing of this offering; and (4) the filing and effectiveness of our amended and restated certificate of incorporation upon the closing of this offering; and
•on a pro forma as adjusted basis to give effect to: (1) the pro forma adjustments described above; (2) the repayment of all of our outstanding borrowings under the 2025 Loan and Security Agreements with the net proceeds received by us from this offering; and (3) our issuance and sale of shares of common stock in this offering at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after deducting the underwriting discounts and commissions and estimated offering expenses payable by us.
The pro forma and pro forma as adjusted information below is illustrative only, and our capitalization following the closing of this offering will depend on the actual initial public offering price and other terms of this offering determined at pricing. You should read this information in conjunction with our financial statements and the related notes appearing at the end of this prospectus, the sections of this prospectus titled “Use of Proceeds” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and other financial information contained in this prospectus.
| | | | | | | | | | | | | | | | | |
| As of December 31, 2025 |
| Actual | | Pro Forma | | Pro Forma as Adjusted(1) |
| (in thousands, except share and per share amounts) |
Cash and cash equivalents | $ | 92,686 | | | $ | | $ |
Debt | | | | | |
| Long-term debt, net of unamortized debt issuance cost | $ | 46,315 | | | | | |
Mezzanine equity: |
| | | | |
Redeemable, convertible preferred stock Series A - $0.0001 par value; 24,947,154 shares authorized, issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted | $ | 34,174 | | | | | |
Redeemable, convertible preferred stock Series B - $0.0001 par value;11,574,841 shares authorized, issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted | 66,442 | | | | | |
Redeemable, convertible preferred stock Series C - $0.0001 par value; 6,960,439 shares authorized, issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted | 48,761 | | | | | |
| | | | | | | | | | | | | | | | | |
Redeemable, convertible preferred stock Series D - $0.0001 par value; 12,857,720 shares authorized, issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted | 136,715 | | | | | |
Redeemable, convertible preferred stock Series D-1 - $0.0001 par value; 6,085,161 shares authorized, issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted | 58,894 | | | | | |
Redeemable, convertible preferred stock Series E - $0.0001 par value; 14,578,457 shares authorized and 5,567,364 shares issued and outstanding, actual; no shares authorized, issued or outstanding, pro forma and pro forma as adjusted | 102,600 | | | | | |
| Total mezzanine equity | 447,586 | | | | | |
| Stockholders’ (deficit) equity: | | | | | |
Preferred stock, $0.0001 par value: no shares authorized, issued, or outstanding, actual; 20,000,000 shares authorized and no shares issued and outstanding, pro forma and pro forma as adjusted | — | | | | | |
Common stock, $0.0001 par value; 111,000,000 shares authorized, 4,168,374 shares issued and outstanding, actual; 2,000,000,000 shares authorized, shares issued and outstanding pro forma; 2,000,000,000 shares authorized, shares issued and outstanding, pro forma as adjusted | 2 | | | | |
| Additional paid-in capital | 39,336 | | | | | |
| Accumulated other comprehensive income | — | | | | | |
| Accumulated deficit | (145,841) | | | | | |
| Total stockholders’ (deficit) equity | (106,503) | | | | | |
Total capitalization | $ | 387,771 | | | $ | | $ |
Each $1.00 increase (decrease) in the assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase (decrease) the pro forma as adjusted amount of each of cash and cash equivalents, additional paid in capital, total stockholders’ (deficit) equity and total capitalization by approximately $ million, assuming that 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. Similarly, each increase (decrease) of 1.0 million shares in the number of shares offered by us at the assumed initial public offering price per share of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase (decrease) the pro forma as adjusted amount of each of cash and cash equivalents, additional paid in capital, total stockholders’ (deficit) equity and total capitalization by approximately $ million.
The number of shares of our common stock to be outstanding after this offering is based on shares of our common stock outstanding as of December 31, 2025, after giving effect to the automatic conversion of all outstanding shares of our convertible preferred stock (including shares of
Series E Preferred Stock issued subsequent to December 31, 2025) into an aggregate of 68,987,988 shares of common stock upon the closing of this offering and the Warrant Net Exercises, and excludes:
•14,675,271 shares of our common stock issuable upon the exercise of options outstanding as of December 31, 2025 under our 2015 Plan, at a weighted-average exercise price of $2.73 per share;
•182,786 shares of our common stock subject to RSUs outstanding as of December 31, 2025 under the 2015 Plan;
•3,966,977 shares of our common stock available for future issuance as of December 31, 2025 under our 2015 Plan, which shares will cease to be available for issuance under the 2015 Plan at the time our 2026 Equity Incentive Plan (the “2026 Plan”), becomes effective and will be added to, and become available for issuance under, the 2026 Plan;
•5,304,255 shares of our common stock issuable upon the exercise of common stock warrants outstanding as of December 31, 2025, with a weighted-average exercise price of $0.94 per share (other than the Warrant Net Exercises);
•an additional shares of our common stock reserved for future issuance under our 2026 Plan, which will become effective upon the execution and delivery of the underwriting agreement for this offering, as well as any automatic increases in the number of shares of common stock reserved for future issuance under the 2026 Plan and any additional shares of our common stock that may become available under the 2026 Plan, as more fully described in “Executive Compensation—Equity Benefit Plans—2026 Equity Incentive Plan”; and
• shares of our common stock reserved for future issuance under our ESPP, which will become effective upon the execution and delivery of the underwriting agreement for this offering, as well as any automatic increases in the number of shares of common stock reserved for future issuance under the ESPP, as more fully described in “Executive Compensation—Equity Benefit Plans—2026 Employee Stock Purchase Plan”.
DILUTION
If you invest in our common stock in this offering, your ownership interest will be immediately diluted to the extent of the difference between the initial public offering price per share and the pro forma as adjusted net tangible book value per share of our common stock after this offering.
As of December 31, 2025, we had a historical net tangible book deficit of $(259.3) million, or $(62.22) per share of our common stock. Our historical net tangible book deficit per share represents total tangible assets less total liabilities and the carrying values of our convertible preferred stock, which is not included within stockholders’ deficit, divided by the 4,168,374 shares of our common stock outstanding as of December 31, 2025.
Our pro forma net tangible book value as of December 31, 2025 was $ million, or $ per share of our common stock. Pro forma net tangible book value represents the amount of our total tangible assets less our total liabilities, after giving effect to (i) the sale and issuance of 995,309 shares of Series E Preferred Stock for net proceeds of $ million subsequent to December 31, 2025, (ii) the Warrant Net Exercises, (iii) the automatic conversion of all outstanding shares of our convertible preferred stock (including shares of Series E Preferred Stock issued subsequent to December 31, 2025) into an aggregate of 68,987,988 shares of our common stock upon the closing of this offering and (iv) the filing and effectiveness of our amended and restated certificate of incorporation upon the closing of this offering. Pro forma net tangible book value per share represents pro forma net tangible book value divided by the total number of shares outstanding as of December 31, 2025, after giving effect to the pro forma adjustment described above.
After giving further effect to the sale of shares of common stock in this offering at an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, and after deducting the underwriting discounts and commissions and estimated offering expenses payable by us, and the application of the net proceeds of this offering to repay $ million of outstanding borrowings under the 2025 Loan and Security Agreements as set forth under “Use of Proceeds", our pro forma as adjusted net tangible book value as of December 31, 2025 would have been $ million, or $ per share. This amount represents an immediate increase in pro forma net tangible book value of $ per share to our existing stockholders and immediate dilution of $ per share to new investors in this offering. We determine dilution by subtracting the pro forma as adjusted net tangible book value per share after this offering from the amount of cash that a new investor paid for a share of common stock in this offering.
The following table illustrates this dilution on a per share basis:
| | | | | | | | | | | |
Assumed initial public offering price per share | | | $ |
Historical net tangible book deficit per share as of December 31, 2025 | $ | (62.22) | | | |
Pro forma increase in historical net tangible book value per share attributable to the pro forma transactions described above | | | |
Pro forma net tangible book value per share as of December 31, 2025 before giving effect to this offering | | | |
Increase in pro forma net tangible book value per share attributable to this offering | | |
|
Pro forma as adjusted net tangible book value per share after this offering | | | |
Dilution per share to new investors in this offering | | | $ |
The dilution information discussed above is illustrative only and will change based on the actual initial public offering price and other terms of this offering determined at pricing. Each $1.00 increase (decrease) in the assumed initial public offering price of $ per share, which is the midpoint of the 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 $ , and dilution in pro forma
net tangible book value per share to new investors by $ , assuming that 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. An increase of 1.0 million shares in the number of shares we are offering would increase the pro forma as adjusted net tangible book value per share after this offering by $ and decrease the dilution per share to new investors participating in this offering by $ , assuming no change in the assumed initial public offering price per share and after deducting the underwriting discounts and commissions. A decrease of 1.0 million shares in the number of shares we are offering would decrease the pro forma as adjusted net tangible book value per share after this offering by $ and increase the dilution per share to new investors participating in this offering by $ , assuming no change in the assumed initial public offering price per share and after deducting the underwriting discounts and commissions.
If the underwriters exercise their option to purchase additional shares of our common stock in full, the pro forma as adjusted net tangible book value after this offering would be $ per share, the increase in pro forma net tangible book value per share would be $ and the dilution per share to new investors would be $ per share, in each case assuming an initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus.
The following table summarizes on the pro forma as adjusted basis as of December 31, 2025 described above, the differences between the number of shares purchased from us, the total consideration paid to us in cash and the average price per share that existing stockholders and new investors paid for such shares. The calculation below is based on an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus, before deducting the underwriting discounts and commissions and estimated offering expenses payable by us.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Shares Purchased | | Total Consideration | | Weighted-
Average Price
per Share |
| Number | | Percent | | Amount | | Percent | |
Existing stockholders(1) | | | % | | $ | | % | | $ |
New investors | | | | | | | | | |
Total | | | 100 | % | | | | 100 | % | | |
______________
(1)The presentation in this table regarding ownership by existing stockholders does not give effect to any purchases that existing stockholders may make through our directed share program or otherwise purchase in this offering.
The number of shares of our common stock to be outstanding after this offering is based on shares of our common stock outstanding as of December 31, 2025, after giving effect to the automatic conversion of all outstanding shares of our convertible preferred stock (including shares of Series E Preferred Stock issued subsequent to December 31, 2025) into an aggregate of 68,987,988 shares of common stock upon the closing of this offering and the Warrant Net Exercises, and excludes:
•14,675,271 shares of our common stock issuable upon the exercise of options outstanding as of December 31, 2025 under our 2015 Plan, at a weighted-average exercise price of $2.73 per share;
•182,786 shares of our common stock subject to RSUs outstanding as of December 31, 2025 under the 2015 Plan;
•3,966,977 shares of our common stock available for future issuance as of December 31, 2025 under our 2015 Plan, which shares will cease to be available for issuance under the 2015 Plan at the time our 2026 Plan, becomes effective and will be added to, and become available for issuance under, the 2026 Plan;
•5,304,255 shares of our common stock issuable upon the exercise of common stock warrants outstanding as of December 31, 2025, with a weighted-average exercise price of $0.94 per share (other than the Warrant Net Exercises);
•an additional shares of our common stock reserved for future issuance under our 2026 Plan, which will become effective upon the execution and delivery of the underwriting agreement for this offering, as well as any automatic increases in the number of shares of common stock reserved for future issuance under the 2026 Plan and any additional shares of our common stock that may become available under the 2026 Plan, as more fully described in “Executive Compensation—Equity Benefit Plans—2026 Equity Incentive Plan”; and
• shares of our common stock reserved for future issuance under our ESPP, which will become effective upon the execution and delivery of the underwriting agreement for this offering, as well as any automatic increases in the number of shares of common stock reserved for future issuance under the ESPP, as more fully described in “Executive Compensation—Equity Benefit Plans—2026 Employee Stock Purchase Plan”.
To the extent that stock options or warrants are exercised, RSUs vest and settle, new equity awards are issued under our equity incentive plan or we issue additional shares of common stock in the future, there will be further dilution to investors participating in this offering. In addition, we may choose to raise additional capital because of market conditions or strategic considerations, even if we believe that we have sufficient funds for our current or future operating plans. If we raise additional capital through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The following unaudited pro forma condensed combined financial information presents the unaudited pro forma condensed consolidated balance sheet as of December 31, 2025 and unaudited pro forma condensed consolidated statement of operations for the year ended December 31, 2025 based on the consolidated historical financial statements of Hawkeye 360, Inc. (“Acquirer”, “HawkEye” or the “Company”) and Innovative Signal Analysis, Inc. (“ISA”), after giving effect to the following transactions (collectively, the “Transactions”):
•the ISA Acquisition, as defined below;
•the Pre-IPO Transactions, as defined below; and
•the issuance of shares of common stock in the initial public offering of Hawkeye 360, Inc. and the application of million of the net proceeds from the sale of such shares (assuming the midpoint of the price range set forth on the cover page of this prospectus) to repay certain indebtedness as described in the “Use of Proceeds” (the “Offering”).
The unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X, as amended. The ISA Acquisition closed on December 18, 2025, and therefore, the fair value of assets acquired and liabilities assumed are already included in Hawkeye’s historical consolidated balance sheet as of December 31, 2025. The pro forma unaudited condensed combined balance sheet gives effect to the Pre-IPO Transactions and the Offering as if both occurred on December 31, 2025. The unaudited pro forma condensed combined statement of operations for the year ended December 31, 2025 combines the historical statements of income of the Company and ISA on a pro forma basis as if the Transactions had occurred on January 1, 2025, the first day of Hawkeye’s 2025 fiscal year.
The historical financial statements of the Company and ISA have been adjusted in the accompanying unaudited pro forma condensed combined financial information to give effect to pro forma events that are transaction accounting adjustments which are necessary to account for the ISA acquisition in accordance with U.S. GAAP. The unaudited pro forma adjustments are based upon available information and certain assumptions that our management believe are reasonable. The historical financial information of Hawkeye was derived from its audited consolidated financial statements as of and for the years ended December 31, 2025 and 2024 included elsewhere in this prospectus. The historical financial information of ISA was derived from the unaudited consolidated financial statements of ISA for the period from January 1, 2025 to December 18, 2025 not included herein. The unaudited pro forma condensed combined financial information should also be read together with the following information:
•Hawkeye’s historical financial statements and accompanying notes found elsewhere in this prospectus;
•ISA’s historical financial statements and accompanying notes found elsewhere in this prospectus;
•“Management’s Discussion and Analysis of Financial Condition and Results of Operations” found elsewhere in this prospectus; and
•Other financial information included elsewhere in this prospectus.
The unaudited pro forma condensed combined financial information and related notes are provided for illustrative purposes only and do not purport to represent what the combined company’s actual results of operations or financial position would have been had the Transactions been completed on the dates indicated, nor are they necessarily indicative of the combined company’s future results of operations or financial position for any future period. The actual financial position and results of operations may differ significantly from the pro forma amounts reflected herein.
ISA Acquisition
Pursuant to the Agreement and Plan of Merger (“Agreement”) dated December 18, 2025, HawkEye 360, Inc. completed the acquisition of Innovative Signal Analysis, Inc. through a statutory merger involving Forrestal Merger Sub, Inc. (the “Merger Sub”), a wholly owned subsidiary of HawkEye. Under the terms of the Agreement, Merger Sub was merged with and into ISA. The acquisition was completed on December 18, 2025, upon which the Merger Sub ceased to exist as a separate entity, and ISA continued as the surviving corporation under Texas law. As a result, ISA became a wholly owned subsidiary of HawkEye (the “ISA Acquisition”).
Pre-IPO Transactions
The unaudited pro forma condensed combined financial information has been prepared to give effect to (i) the sale and issuance of 995,309 shares of Series E Preferred Stock for net proceeds of $ million subsequent to December 31, 2025, (ii) the automatic conversion of all outstanding shares of convertible preferred stock into 68,987,988 shares of common stock upon the closing of the offering, (iii) the net issuance of shares pursuant to the cashless exercise of outstanding warrants, based on an assumed offering price of $ per share, which is the midpoint of the price range set forth on the cover of this prospectus and (iv) the filing and effectiveness of the Company’s amended and restated certificate of incorporation upon closing of this offering (collectively, the “Pre-IPO Transactions”).
The Offering
The unaudited pro forma condensed combined financial information has also been prepared to give effect to the Company’s initial public offering of shares of common stock at an assumed initial offering price of $ per share, which is the midpoint of the range set forth on the cover of this prospectus. The Company intends to use the net proceeds from this offering, together with its existing cash and cash equivalents, to repay certain indebtedness, for working capital and other general corporate purposes, as described in the Use of Proceeds. The pro forma adjustments reflect the receipt of estimated net proceeds from the offering, after deducting underwriting discounts and commissions and estimated offering expenses payable by the Company as well as the application of those proceeds to repay indebtedness.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET |
| | As of December 31, 2025 |
| | ($ in thousands) |
| | Hawkeye Consolidated | | Pre-IPO Transactions Adjustments | | Notes | | Offering Adjustments | | Notes | | Pro Forma Adjusted: Pre-IPO Transactions and Offering Adjustments |
| Assets | | | | | | | | | | | | |
| Current assets | | | | | | | | | | | | |
Cash and cash equivalents | | $ | 92,686 | | | | | 3(A) | | | | 3(D) 3(E) | | |
Contract accounts receivable | | 32,320 | | | | | | | | | | | |
| Contract accounts receivable from related parties | | 20,969 | | | | | | | | | | | |
Other accounts receivable | | 21 | | | | | | | | | | | |
Inventory | | 4,025 | | | | | | | | | | | |
Contract assets | | 4,639 | | | | | | | | | | | |
Contract assets from related parties | | 4,748 | | | | | | | | | | | |
| Prepaid expenses and other current assets | | 9,183 | | | | | | | | | 3(D) | | |
Total current assets | | 168,591 | | | | | | | | | | | |
| Long-term assets: | | | | | | | | | | | | |
Satellites, property and equipment, net | | 110,873 | | | | | | | | | | | |
Intangibles, net | | 35,973 | | | | | | | | | | | |
Goodwill | | 116,866 | | | | | | | | | | | |
Operating lease - right-of-use-assets | | 15,403 | | | | | | | | | | | |
Deposits | | 35,932 | | | | | | | | | | | |
Restricted cash | | 4,587 | | | | | | | | | | | |
Other long-term assets | | 1,715 | | | | | | | | | | | |
Total long-term assets | | 321,349 | | | | | | | | | | | |
Total assets | | 489,940 | | | | | | | | | | | |
| Liabilities, mezzanine equity and stockholders’ deficit | | | | | | | | | | | | |
| Current liabilities: | | | | | | | | | | | | |
Accounts payable | | 18,486 | | | | | | | | | 3(D) | | |
| Accrued expenses and other current liabilities | | 5,017 | | | | | | | | | | | |
Accrued compensation payable | | 10,511 | | | | | | | | | | | |
| Contract liabilities | | 3,262 | | | | | | | | | | | |
| Current portion of operating lease liabilities | | 3,437 | | | | | | | | | | | |
Total current liabilities | | 40,713 | | | | | | | | | | | |
| Long-term liabilities: | | | | | | | | | | | | |
Long-term debt, net of unamortized debt issuance cost | | 46,315 | | | | | | | | | 3(E) | | |
Long term contract liabilities | | 19,892 | | | | | | | | | | | |
Other liabilities | | 23,800 | | | | | | | | | | | |
Deferred tax liabilities | | 977 | | | | | | | | | | | |
| Warrant liabilities | | 4,267 | | | | | 3(C) | | | | | | |
Operating lease liabilities, net of current portion | | 12,893 | | | | | | | | | | | |
Total long-term liabilities | | 108,144 | | | | | | | | | | | |
Total liabilities | | 148,857 | | | | | | | | | | | |
| Mezzanine equity | | | | | | | | | | | | |
Redeemable, convertible preferred stock Series A | | 34,174 | |
| | | 3(B) | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Redeemable, convertible preferred stock Series B | | 66,442 | |
| | | 3(B) | | | | | | |
Redeemable, convertible preferred stock Series C | | 48,761 | |
| | | 3(B) | | | | | | |
Redeemable, convertible preferred stock Series D | | 136,715 | |
| | | 3(B) | | | | | | |
Redeemable, convertible preferred stock Series D-1 | | 58,894 | |
| | | 3(B) | | | | | | |
Redeemable, convertible preferred stock Series E | | 102,600 | | | | | 3(A) 3(B) | | | | | | |
Total mezzanine equity | | 447,586 | | | | | | | | | | | |
| Stockholders’ deficit | | | | | | | | | | | | |
Common stock | | 2 | | | | | 3(B) 3(C) | | | | 3(D) | | |
Additional paid-in-capital | | 39,336 | | | | | 3(B) 3(C) | | | | 3(D) | | |
Accumulated deficit | | (145,841) | | | | | | | | | 3(E) | | |
Total stockholders’ (deficit) equity | | (106,503) | | | | | | | | | | | |
Total liabilities, mezzanine equity and stockholders’ (deficit) equity | | $ | 489,940 | | | | | | | | | | | |
_______________
See accompanying notes to unaudited pro forma condensed combined financial information.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS |
| | For the Period ended December 31, 2025 |
| | ($ in thousands) |
| | HawkEye 360, Inc. (Historical) | | Innovative Signal Analysis, Inc. Jan. 1, 2025 – Dec. 18, 2025 (Historical) | | Transaction Accounting and Financing Adjustments | | Notes | | Pro Forma: ISA Acquisition | | Pre-IPO Transactions Adjustments | | Notes | | Pro Forma: ISA Acquisition and Pre-IPO Transactions Adjustments | | Offering Adjustments | | Notes | | Pro Forma Adjusted: ISA Acquisition, Pre- IPO Transactions Adjustments and Offering Adjustments |
| Revenue | | 98,743 | | | 60,789 | | | (1,033) | | | 4(A) | | 158,499 | | | | | | | | | | | | | |
Revenue from related parties | | 18,917 | | | — | | | — | | | | | 18,917 | | | | | | | | | | | | | |
| Total revenue | | 117,660 | | | 60,789 | | | (1,033) | | | | | 177,416 | | | | | | | | | | | | | |
| Operating expenses: | | | | | | | | | | | | | | | | | | | | | | |
| Direct cost of sales, excluding depreciation and amortization | | 21,687 | | | 40,630 | | | — | | | | | 62,317 | | | | | | | | | | | | | |
| Indirect cost of sales, excluding depreciation and amortization | | 2,092 | | | 19,446 | | | — | | | | | 21,538 | | | | | | | | | | | | | |
| Selling, general and administrative | | 46,291 | | | 4,975 | | | 1,869 | | | 4(C) | | 53,135 | | | | | | | | | | | | | |
| Research and development | | 28,913 | | | — | | | (800) | | | 4(A) | | 28,113 | | | | | | | | | | | | | |
| Depreciation and amortization | | 23,568 | | | 1,269 | | | 6,803 | | | 4(B) | | 31,640 | | | | | | | | | | | | | |
Total operating expenses | | 122,551 | | | 66,320 | | | 7,872 | | | | | 196,743 | | | | | | | | | | | | | |
Loss from operations | | (4,891) | | | (5,531) | | | (8,905) | | | | | (19,327) | | | | | | | | | | | | | |
| Other income (expense): | | | | | | — | | | | | — | | | | | | | | | | | | | |
| Interest income | | 3,409 | | | 210 | | | — | | | | | 3,619 | | | | | | | | | | | | | |
| Interest expense | | (304) | | | (1) | | | (5,421) | | | 4(D) | | (5,726) | | | | | | | | | | | 4(I) | | |
Other (expense) income, net | | (2,274) | | | — | | | — | | | | | (2,274) | | | | | 4(F) | | | | | | | | |
Total other income (expense) | | 831 | | | 209 | | | (5,421) | | | | | (4,381) | | | | | | | | | | | | | |
| Loss before income taxes | | (4,060) | | | (5,322) | | | (14,326) | | | | | (23,708) | | | | | | | | | | | | | |
| Income tax benefit (expense) | | 6,733 | | | (465) | | | 3,704 | | | 4(E) | | 9,972 | | | | | 4(H) | | | | | | 4(J) | | |
Net income (loss) | | 2,673 | | | (5,787) | | | (10,622) | | | | | (13,736) | | | | | | | | | | | | | |
| Preferred stock dividend | | (2,224) | | | — | | | — | | | | | (2,224) | | | | | 4(G) | | | | | | | | |
| Income allocated to participating securities | | (401) | | | — | | | — | | | | | (401) | | | | | 4(G) | | | | | | | | |
Net income (loss) attributable to common shareholders | | 48 | | | (5,787) | | | (10,622) | | | | | (16,361) | | | | | | | | | | | | | |
| Net income (loss) per share of common stock: | | | | | | | | | | | | | | | | | | | | | | |
| Basic | | 0.01 | | | | | | | | | | | | | | | | | | | 4(K) | | |
| Diluted | | 0.01 | | | | | | | | | | | | | | | | | | | 4(K) | | |
| Weighted average common shares outstanding: | | | | | | | | | | | | | | | | | | | | 4(K) | | |
| Basic | | 7,511,429 | | | | | | | | | | | | | | | | | | | 4(K) | | |
| Diluted | | 13,812,329 | | | | | | | | | | | | | | | | | | | | | |
_______________
See accompanying notes to unaudited pro forma condensed combined financial information.
Notes to Unaudited Pro Forma Condensed Consolidated Financial Information
1. Basis of Preparation and Description of the Acquisition
The Acquisition
On December 18, 2025, HawkEye completed the acquisition of ISA. The acquisition was accounted for as a business combination under Accounting Standards Codification (“ASC”) 805, Business Combinations, (“ASC 805”) with HawkEye identified as the accounting acquirer.
Basis of Preparation
The unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X and gives effect to the ISA acquisition, the related financing transactions, and the Company’s initial public offering of common stock, as if such transactions had occurred on the dates assumed for pro forma purposes. The results set forth in the unaudited pro forma condensed combined financial information include Transaction Accounting Adjustments that give effect to events that are directly attributable to the Transactions described above.
The financial statements of both the Company and ISA were prepared in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”) and are presented in U.S. dollars, which serves as the basis for the preparation of the unaudited pro forma condensed combined financial information.
The unaudited pro forma condensed combined financial information is prepared using the acquisition method of accounting in accordance with ASC 805, with HawkEye treated as the accounting acquirer for the ISA Acquisition. Under ASC 805, assets acquired, and liabilities assumed, in a business combination are recognized and measured at their assumed merger closing date fair value, while transaction costs associated with a business combination are expensed as incurred. The excess of merger consideration over the fair value of assets acquired and liabilities assumed, if any, is allocated to goodwill.
The unaudited pro forma condensed combined balance sheet as of December 31, 2025 gives pro forma effect to the Pre-IPO Transactions and the Offering as if each occurred on December 31, 2025. The unaudited pro forma condensed combined statement of operations for the year ended December 31, 2025 gives pro forma effect to the Transactions as if each occurred on January 1, 2025.
The unaudited pro forma condensed combined financial information does not reflect any anticipated synergies or dis-synergies, operating efficiencies or cost savings that may result from the ISA Acquisition and integration costs that may be incurred.
The pro forma adjustments represent HawkEye’s best estimates and are based upon currently available information and certain assumptions that HawkEye believes are reasonable under the circumstances. All intercompany accounts and transactions have been eliminated in consolidation.
Purchase Consideration
The total consideration transferred in connection with the ISA Acquisition consisted of a combination of $166.5 million of cash consideration, deferred consideration, contingent consideration and equity consideration, as determined under ASC 805. A portion of the purchase consideration was satisfied through the issuance of shares of the Company’s Series E Preferred Stock to the sellers of ISA. The equity consideration was measured at fair value as of the acquisition date, based on the observable issuance price of Series E preferred stock in a contemporaneous financing transaction.
In connection with the acquisition, on December 18, 2025, the Company entered into the Series E Purchase Agreement with certain shareholders pursuant to which it issued 1,325,316 shares of Series E Preferred Stock at a fair value of $18.86 per share, resulting in aggregate consideration of $25.0 million.
The allocation of the total purchase consideration to tangible assets acquired, identifiable intangible assets, liabilities assumed, and goodwill is preliminary and subject to change as the Company completes its valuation analyses. All values remain preliminary including, but not limited to, intangible assets, including the preliminary assumptions used in their estimates of fair values and their respective estimated useful lives, working capital accounts, income taxes, and residual goodwill. The final determination of the fair values, purchase consideration, related income tax impacts and residual goodwill will be completed as soon as practicable, and within the measurement period of up to one year from the acquisition date as permitted under GAAP. Any adjustments to provisional.
Any excess of purchase consideration over the fair value of identifiable net assets acquired is reflected as goodwill in the unaudited pro forma condensed combined balance sheet. See Hawkeye’s audited consolidated financial statements as of and for the years ended December 31, 2025 and 2024 included elsewhere in this prospectus for details on the assets acquired and liabilities assumed.
The unaudited pro forma condensed combined financial information reflects the acquisition of ISA for an estimated preliminary purchase consideration of $166.5 million.
The following table summarizes the consideration transferred to consummate the ISA Acquisition:
| | | | | | | | |
| Consideration paid | | (in thousands) |
| Cash | | $ | 117,694 | |
| Fair value of Series E preferred shares | | 25,000 | |
| Other consideration | | 23,800 | |
| Total purchase price | | $ | 166,494 | |
| | |
| Assets acquired | | (in thousands) |
| Assets acquired, excluding goodwill | | $ | 71,531 | |
| Goodwill | | 116,866 | |
| Liabilities assumed | | (21,903) | |
| Total purchase price | | $ | 166,494 | |
Acquisition-Related Financing
To partially fund the cash portion of the purchase consideration and provide incremental liquidity in connection with the ISA acquisition, the Company entered into new senior and mezzanine debt facilities and issued preferred shares, all of which were fully funded at closing on December 18, 2025 and are included in Hawkeye’s consolidated balance sheet as of December 31, 2025.
Senior Term Loan
The Company entered into an amended and restated loan and security agreement providing for a $14.6 million senior term loan, which matures on September 1, 2028. The senior term loan bears interest at a per-annum rate equal to the greater of the Wall Street Journal Prime Rate and 6.75% and is secured by substantially all of the Company’s assets.
Mezzanine Term Loan
Concurrently, the Company entered into a mezzanine loan and security agreement providing for a $34.0 million mezzanine term loan, which matures on December 18, 2028. The mezzanine term loan bears interest at (i) a per-annum cash-pay rate equal to the greater of the Wall Street Journal Prime Rate plus 2.10% and 9.35%, and (ii) a paid-in-kind interest rate of 1.50%, compounded monthly. The mezzanine loan is also secured by the Company’s assets and contains customary commitment fees, final payment fees, and prepayment provisions. The aggregate borrowings of $48.6 million were used, in part, to fund the cash portion of the acquisition consideration and acquisition-related transaction costs.
Series E Financing
In December 2025, the Company entered into the Series E Purchase Agreement with certain investors, pursuant to which it agreed to issue and sell to such investors an aggregate of 4,242,048 shares of Series E Preferred Stock at the Series E Per Share Price, resulting in aggregate gross proceeds of $80.0 million. In addition, the Company issued 1,325,316 shares of Series E Preferred Stock to certain legacy ISA shareholders as consideration for the ISA acquisition. While the first closing of the Series E Preferred Stock financing was completed concurrently with the ISA acquisition and the proceeds were used to help fund the cash purchase price, the shares issued to third party investors represent a financing transaction and are distinct from the equity consideration issued to the sellers of ISA.
2. Accounting policies
The financial statements of both the Company and ISA were prepared in accordance with U.S. GAAP. The unaudited pro forma condensed statements of operations have been compiled in a manner consistent with the accounting policies adopted by Hawkeye. The accounting policies of ISA were not materially different from those of Hawkeye.
3. Notes to Unaudited Pro Forma Condensed Combined Balance Sheet
Pre-IPO Transactions Adjustments
A.This adjustment reflects the sale and issuance of 995,309 shares of Series E Preferred Stock for net proceeds of $ million subsequent to December 31, 2025.
B.This adjustment reflects the conversion of all outstanding shares of the Company’s convertible preferred stock into 68,987,988 shares of our common stock, which will occur upon the closing of this offering.
C.This adjustment reflects the net issuance of shares of the Company’s common stock issuable upon the cashless exercise of warrants issued in connection with the Company’s preferred stock financings at a weighted average exercise price of $ per share, based on an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus. Additionally, this reflects the reversal of $ million of warrant liabilities which are extinguished at conversion.
Offering Adjustment
D.This adjustment reflects the sale of shares of common stock in this offering after deducting underwriting discounts and commissions and estimated offering expenses payable by the Company, including $ million of offering costs recorded as a liability as of December 31, 2025. Additionally, it reflects the reclassification of million of capitalized deferred transaction costs from an asset to additional paid-in capital.
Impact to cash and cash equivalents:
| | | | | | | | |
| Particulars | | (in thousands) |
| Gross proceeds | | $ |
Less: underwriting discounts, commissions and offering expense (including $ million payable as of December 31, 2025) |
| |
| Impact to cash and cash equivalents | | $ |
Impact to common stock:
| | | | | | | | |
| Particulars | | (in thousands, except shares) |
| Shares offered |
| |
| Multiplied by par value | | $ | 0.0001 | |
| Impact to common stock | | $ |
Impact to additional paid-in capital:
| | | | | | | | |
| Particulars | | (in thousands) |
| Gross proceeds | | $ |
| Less: Proceeds recorded in common stock directly above | | |
| Less: underwriting discounts, commissions and offering expenses (including amounts previously capitalized as deferred transaction costs as of December 31, 2025) |
| |
| Impact to additional paid-in capital | | $ |
E.This adjustment reflects the application of the IPO proceeds as outlined in the “Use of Proceeds”, which includes the payment of the Senior Term Loan and Mezzanine Term Loan as outlined in the tables below. This adjustment also reflects the payment of accrued interest on this debt as of December 31, 2025 of $ million.
Impact to cash and cash equivalents:
| | | | | | | | |
| Particulars | | (in thousands) |
| Repayment of principal | | — | |
| Payment of accrued interest on the loans as of December 31, 2025 | | |
| Debt prepayment-penalties | | |
| Impact to cash and cash equivalents | | $ |
Impact to long-term debt:
| | | | | | | | |
| Particulars | | (in thousands) |
| Repayment of principal | | — | |
| Write-off of deferred financing fees | | |
| Impact to long-term debt | | $ |
Impact to accumulated deficit:
| | | | | | | | |
| Particulars | | (in thousands) |
| Write-off of deferred financing fees | | — | |
| Debt prepayment-penalties | | |
| Impact to accumulated deficit | | $ |
4. Notes to Unaudited Pro Forma Condensed Combined Statements of Operations and Comprehensive Income (Loss)
Transaction Accounting and Financing Adjustments
The adjustments included in the Unaudited Pro Forma Condensed Combined Statements of Operations and Comprehensive Income (Loss) for the year ended December 31, 2025, are as follows:
A.Adjustment to eliminate intercompany transactions between Hawkeye and ISA.
B.Identifiable intangible assets, including the trade name, customer contracts, and developed technology, have been recognized as part of the acquisition and measured in accordance with ASC 805 using appropriate valuation methodologies (relief from royalty method for the trade name and developed technology and multi-period excess earnings method for customer contracts). These valuations and related amortization estimates represent a preliminary assessment and may be revised during the measurement period.
Represents the pro forma adjustment to record amortization expense of $6.8 million based on the preliminary fair value of the identified intangible assets and the related assigned estimated useful life for the year ended December 31, 2025.
| | | | | | | | | | | | | | | | | |
| (in thousands) | Estimated Useful Life (in years) | | Preliminary Estimated Fair Value | | Amortization for the Year Ended December 31, 2025 |
Trade name | 4 | | $ | 2,200 | | | $ | 550 | |
Customer relationships: | | | | | |
Follow-on | 10 | | 10,800 | | | 1,080 | |
Existing backlog | 1 | | 1,100 | | | 1,100 | |
Developed technology | 5 | | 21,500 | | | 4,300 | |
| Total identifiable intangible assets | | | $ | 35,600 | | | $ | 7,030 | |
| Less: Historical Amortization expense | | | | | (227) | |
| Pro forma adjustment for incremental amortization expense | | | | | $ | 6,803 | |
C.Reflects the adjustment to record compensation expense related to options of $0.3 million and cash retention bonuses of $1.5 million. The cash retention bonuses vest over a two-year period. The options issued under retention agreements for certain employees at ISA that have a 4-year vesting period and an exercise price of $11.42.
D.The unaudited pro forma condensed combined statements of operations include incremental interest expense related to the $14.6 million Senior Term Loan and $34.0 million Mezzanine Term Loan entered on December 18, 2025. The interest expense included in the unaudited pro forma condensed consolidated statement of operations reflects a weighted average interest rate of 11.6% (including amortization of deferred financing costs). Interest expense is calculated using the prime rate in effect as of March 25, 2026.
| | | | | | | | |
| Particulars | | For the year ended December 31, 2025 |
| Interest expense on the Senior Term Loan and Mezzanine Term Loan for the annual period | | $ | 5,634 | |
| Less: Interest expense on the Senior Term Loan and Mezzanine Loan recorded in the Hawkeye historical results | | (213) | |
| Pro forma adjustment for incremental interest expense | | $ | 5,421 | |
Based on variable rate nature of the $48.6 million of Senior Term Loan and Mezzanine Term Loan debt, a 125-bps change in the assumed benchmark rate would result in an approximately $0.6 million change in annual interest expense.
E.Represents the income tax benefit of $3.7 million for the transaction accounting and financing adjustments calculated using an estimated statutory tax rate of 25.9% for both state and federal income tax. The effective tax rate of the combined company could be significantly different than what is presented in the pro forma financial information depending on post-acquisition activities and the geographical mix of taxable income.
Pre-IPO Transactions Adjustments
F.Reflects the reversal of mark-to-market adjustments on warrant liabilities that convert to shares of common stock at the time of this offering.
G.Reflects the reversal of preferred stock dividends and the reversal of the adjustment for participating securities as the preferred stock converts to common stock upon closing of this offering.
H.Represents the income tax effect of $ million for the reversal of mark-to-market adjustments on warrant liabilities calculated using an estimated tax rate of . The effective tax rate of the combined company could be significantly different than what is presented in the pro forma financial information depending on post-acquisition activities and the geographical mix of taxable income.
Offering Adjustment
I.Reflects the reversal of $ million of interest expense as the Senior Term Loan and Mezzanine Term Loan are repaid as discussed in the ‘Use of Proceeds’. This also reflects the increase in interest expense of $ million from the write-off of debt issuance costs and the pre-payment penalty.
J.Represents the income tax effect of $ million for the reversal of interest expense calculated using an estimated tax rate of . The effective tax rate of the combined company could be significantly different than what is presented in the pro forma financial information depending on post-acquisition activities and the geographical mix of taxable income.
K.Represents earnings per share after giving effect to the pro forma adjustments, including the Transactions. As there were net losses in the year ended December 31, 2025, the number of basic and diluted shares outstanding is the same, as all common shares issuable were determined to be antidilutive.
The basic and diluted pro forma net loss per share of common stock represents the pro forma net loss attributable to common shareholders divided by the combination of the shares owned by existing
owners and the common stock issued in this offering. The table below presents the computation of pro forma basic and dilutive loss per share (in thousands, except shares and per share amounts):
| | | | | | | | |
| Particulars | | (in thousands except shares and per share amounts) |
| Pro forma net loss attributable to common shareholders | | $ |
| Basic and diluted weighted average common shares outstanding - historical | | |
| Transaction accounting adjustment to reflect conversion of preferred shares | |
|
| Transaction accounting adjustment to reflect the net exercise of warrants | |
|
| Transaction accounting adjustment to reflect common shares sold in the IPO | | |
| Basic and diluted weighted average common shares outstanding used in computing pro forma net earnings per share | | |
| Pro forma net earnings per common share, basic and diluted | | $ |
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of the financial condition and results of operations of HawkEye 360, Inc. (the “Company,” “HawkEye 360,” “we,” “us,” and “our”) should be read together with our audited consolidated financial statements as of, and for, the periods presented, in each case together with related notes thereto, included elsewhere in this prospectus. The discussion and analysis should also be read together with the sections entitled “Business,” and “Risk Factors.” The following discussion contains forward-looking statements that reflect future plans, estimates, beliefs and expected performance. The forward-looking statements are dependent upon events, risks and uncertainties that may be outside of our control. Our actual results may differ materially from those contained in or implied by any forward-looking statements. Factors that might cause future results to differ materially from those contained in or implied by any forward-looking statements include, but are not limited to, those discussed in the sections entitled “Risk Factors” and “Special Note Regarding Forward-Looking Statements” included elsewhere in this prospectus.
Overview
HawkEye 360 provides secure end-to-end signals solutions which are tightly integrated into the fabric of national security architectures. As a trusted signals intelligence partner to the U.S. Government and its allies, we are the first commercial space-enabled defense technology company to disrupt electronic warfare at scale. We deliver shareable, battlefield-proven RF intelligence that supports Warfighters during varied cycles of geopolitical volatility. We operate across the entire value chain from design and build, to data collection, to processing and analysis, delivering capabilities and insights to customers throughout our global allied defense landscape.
We are disrupting the defense technology industry through our transformational strategy focused on new on-orbit capabilities, signal processing enhancements, and optimization of our AI/ML analytics algorithms using our expansive RF emitter database. Our algorithms are designed, improved, and validated on over one billion data points from our proprietary signals archive, uniquely collected by our sensor network. With over 30 satellites on orbit and additional clusters in development, we maintain a robust global operational footprint and are committed to expanding our reach, improving our revisit rate and latency, and accelerating product delivery to our customers. We operate across classified and unclassified data, leveraging relationships with the DoW and the U.S. intelligence community and the international equivalents of our allies around the globe.
Our product is a commercial, shareable data solution which addresses the need for U.S. and allied governments to access actionable intelligence directly. We developed a fully integrated RF data platform encompassing collection, end-to-end signal processing, signals library, and proprietary analytics. As a result, we believe we are indispensable to national security architectures across the value chain. Our dual-domain capability also allows us to scale into broader commercial applications. The combination of these business characteristics supports our scalable, cost-effective financial model. We actively augment and fill intelligence gaps for our customers while building out their national SIGINT capabilities through training, analytics, dedicated hardware development, and customized intelligence platforms. Examples of our solutions include customized SIGINT solutions, maritime intelligence, military radar monitoring, GNSS jamming and spoofing detection, communications mapping, tactical ISR support, and core signal processing algorithms used in national government SIGINT systems.
Our products serve the world’s most demanding customers, addressing their highest-priority defense needs with precision and agility.
We have invested significant resources to build a highly capable end-to-end operating model. This includes designing and building payloads and satellites, as well as owning and operating satellite constellations and processing and analyzing data through our proprietary collection mechanisms. Our model enables us to serve customers across the value chain and meet their specific needs. This vertical
integration allows us to run our system at scale and capture network effects, such as rapidly tailoring algorithms based on new signal knowledge, iteratively modifying satellite payloads to better detect new emitters, or leveraging the scale of collected data to identify new signals and further improve our products. Our nimble business model allows us to move quickly, building out capacity ahead of customer demand. As a result of our fixed cost investment to date, our operating model is highly capital-efficient.
We report our financial and operating results as a single segment based on the consolidated information used by the chief operating decision-maker to allocate resources and to evaluate financial performance. We do not manage our business or allocate our resources based on the products or services we offer to our customers. Rather, we focus on delivering quality products and services that meet the needs of each customer.
We have consistently grown and scaled our business rapidly to date. Our ability to generate measurable impact for our customers across mission critical applications has enabled our business to achieve significant and durable revenue growth. From the year ended December 31, 2022 to the year ended December 31, 2025, our revenue grew from $30.5 million to $117.7 million, representing a CAGR of approximately 57%.
While generating growth at scale, we continue to benefit from our strong operating leverage in our business. For the years ended December 31, 2025 and 2024, our net income was $2.7 million and our net loss was $29.0 million, respectively, while our Adjusted EBITDA showed a gain of $24.8 million in 2025 compared to a loss of $6.4 million in 2024. As we scale our business, our existing fixed costs and capital investments support greater revenue generation. During this period, our capital expenditures as a percentage of revenue declined from 128% for the year ended December 31, 2022 to 35% for the year ended December 31, 2025.
We have several initiatives that we believe will allow us to generate additional revenue on our existing fixed investment. Firstly, our new Block 3 satellite technology should improve our capital efficiency by leveraging new cost-effective collection mechanisms. We are also expanding our signal processing sources and capabilities, resulting in higher revenue production per each passing. Finally, our ability to re-sell data further improves the capital efficiency of our platform. These investments are supported by strategic investments in R&D, engineering talent, satellite infrastructure, and future capacity.
We are focused on continuing to grow our revenue quality by focusing on initiatives to enhance RF capabilities for significant customer expansion, improving our latency and tactical applications, and growing our RF utilization across domains. These initiatives further support our future growth opportunities.
Recent Developments
ISA Acquisition
On December 18, 2025, we entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which we acquired Innovative Signal Analysis, Inc. (“ISA”) for total consideration of $166.5 million, which consisted of upfront payments of $117.7 million in cash (subject to customary adjustments for ISA cash on hand, net working capital, unpaid transaction costs, and debt), $25.0 million of our Series E Preferred Stock, and a deferred payment of $15.0 million in cash (valued at $13.5 million as of the acquisition date) following the earlier of a “Liquidity Event” (as defined in the Merger Agreement, and including an initial public offering resulting in net proceeds of at least $100.0 million) or the third anniversary of the closing of the merger, subject to any limitations in our senior credit facilities, as well as an additional earnout payment of up to $10.0 million if ISA exceeds specified 2026 revenue targets (valued at $0.3 million as of the acquisition date). The Merger Agreement also includes a $10.0 million holdback retained by us at closing to address specified matters described in the Merger Agreement (and provides for an additional $7.5 million to be held back from the $15.0 million deferred payment if the specified matters are not addressed by the deferred payment date). The foregoing description of the
Merger Agreement and related transactions is qualified by reference to the Merger Agreement, a copy of which is filed as an exhibit to the registration statement of which this prospectus forms a part.
Our acquisition of ISA enhances our existing offerings by providing critical signal processing technologies, including detection and classification across multiple domains, such as air, land, and maritime domains, while gaining access to classified architecture, thereby strengthening our relationship with the U.S. Government and the U.S. intelligence community. The upgraded platform integrates HawkEye 360 data with third-party sources including national systems, AIS feeds, and optical imagery. This creates a unified environment for correlation, geolocation, and USR. In parallel to this acquisition, we are also developing automated analytics software to fuse multiple data streams for real-time alerts, cueing, and mission orchestration, while expanding third-party integrations to deliver richer mission insights and operational advantages to a broader base of U.S. Government customers.
Loan and Security Agreement
In connection with the ISA acquisition noted above, on December 18, 2025, the Company amended and replaced the legacy Loan and Security Agreement with the Third Amended and Restated Loan and Security Agreement (the “2025 Amendment”). The 2025 Amendment provides for the $14.6 million Senior Term Loan, which was fully funded on December 18, 2025 and matures on September 1, 2028. The Senior Term Loan bears interest at a per annum rate equal to the greater of the Wall Street Journal Prime Rate and 6.75%.
Concurrently with the execution of the 2025 Amendment, we entered into the 2025 Mezzanine Loan and Security Agreement with First-Citizens Bank & Trust Company, as agent, and the financial institutions party thereto as lenders. The 2025 Mezzanine Loan and Security Agreement provides for the $34.0 million Mezzanine Loan, which was fully funded on December 18, 2025 and matures on December 18, 2028. The Mezzanine Loan bears interest at (i) a per annum cash-pay rate equal to the greater of the Wall Street Journal Prime Rate plus a margin of 2.10% and 9.35%, and (ii) a per annum paid-in-kind rate equal to 1.50% (compounded monthly). The 2025 Mezzanine Loan and Security Agreement also requires a 1% commitment fee, a final payment fee of 1.95%, and a prepayment fee if the Mezzanine Loan is repaid prior to the second anniversary of the closing date (subject to certain exceptions). For a further description of the 2025 Loan and Security Agreements, see “—Liquidity and Capital Resources—Debt” below.
Series E Preferred Stock Financing
In December 2025, we entered into the Series E Purchase Agreement with certain investors, pursuant to which we agreed to issue and sell to such investors an aggregate of 4,242,048 shares of Series E Preferred Stock at the Series E Per Share Price, resulting in aggregate gross proceeds of $80.0 million.
On December 18, 2025, we entered into an agreement whereby we agreed to sell 53,012 shares of Series E Preferred Shares at a future date for a price of approximately $18.86 per share. The Company received approximately $1.0 million for these shares on January 14, 2026 and subsequently issued the related shares. In connection with the Series E Preferred Stock financing in 2025, the Company incurred issuance costs of $2.4 million, which is recorded as a reduction to the Series E Preferred Stock.
In a subsequent closing on January 9, 2026, we issued and sold an aggregate of 756,754 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $14.3 million. Additionally, in a subsequent closing on February 3, 2026, we issued and sold an aggregate of 5,301 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $0.1 million, in a subsequent closing on February 6, 2026, we issued and sold an aggregate of 74,217 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $1.4 million, and in a subsequent closing on February 23, 2026, we issued and sold an aggregate of 106,025 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $2.0 million.
Additionally, as noted above, in connection with the acquisition, on December 18, 2025, the Company issued 1,325,316 shares of Series E Preferred Stock to certain legacy ISA shareholders at a fair value of $18.86 per share, resulting in aggregate consideration of $25.0 million.
Our Business Model
We provide tailored solutions to address our customers’ needs and seamlessly integrate with their existing workflows to become a critical intelligence partner. We provide our customers with both tailored analytics and insights as well as data licensing opportunities. Our unclassified, shareable data, and analytics products business models create a range of use cases for end customers, enhancing interoperability and mission effectiveness.
The following areas are key aspects of our business related to our financial model.
Product Delivery
To date, the majority of our data and insights delivery has occurred through customer-tasked signal collection and analytics. Our customer relationships begin with discrete tasks, and evolve to include additional products, greater frequency, and increased volume of data over time. Each data tasking contract offers a network of revenue opportunities to include re-purposing of data collected for multiple customers and performing prescribed analytics and gathered insights for different customers on a singular set of data. The majority of our revenue is derived from customers who pre-book tasking capacity. This provides significant visibility into our forward revenue, expanding the duration of our long-term customer contracts.
As we become integrated with government and allied customers, our sales cycle shortens. Our tasking model allows us to scale revenue efficiently with existing customers at low fixed costs, creating a highly profitable business model, as new data and insights are sold. We have begun to evolve this model to include subscriptions to highly relevant data in congested areas of interest (for example, data relating to vessels operating in the South China Sea). These subscriptions are HawkEye 360-tasked collections that are sold as a feed to multiple subscribed customers.
Across all products, revenue is recognized at a point-in-time or over time as data or services are delivered to the customer.
Our Customers
Our customers are a mix of U.S. Government defense, intelligence, diplomatic, and national security agencies, as well as international governments. Our diverse mix of customers and products creates a business model with limited customer concentration and broad applicability across use cases. We generate our revenue from a mix of U.S. Government entities and international allied entities. For the year ended December 31, 2025, our U.S. customers, which are predominantly U.S. Government entities, accounted for 61% of our revenue, while our customers in Japan accounted for 16% of our revenue, and our other non-U.S. customers, in the aggregate, accounted for 23% of our revenue. No other country made up more than 10% of our consolidated revenues during the years ended December 31, 2025 and 2024.
We have established relationships with U.S. customers, primarily the U.S. Government through programs of record. U.S. customers contributed to a total of $71.6 million in 2025 (of which $0.9 million was recognized through contracts with ISA which was acquired in December 2025) as compared to $40.8 million in 2024. Certain accounts function broadly to serve multiple customers across the U.S. Government and multiple constituencies within those organizations. These U.S. Government customers, which span both intelligence and warfighting communities, includes:
•The National Reconnaissance Office (the “NRO”), which is our largest customer, with which we will have held several contracts spanning almost eight years upon the end of the contracts’ terms.
In September 2022, we were awarded a contract by the Commercial Systems Program Office (the “CSPO”) of the NRO to provide commercial RF intelligence to U.S. Government organizations.
•The National Geospatial-Intelligence Agency (the “NGA”), with which we maintain a close relationship of more than four years over several contracts. In September 2024, the NGA awarded a contract extension for RF emitter data and submitted a task order for emerging commercial analytics services.
•The U.S. Space Force and its Joint Commercial Operations cell (the “JCO”), with which we will have held several contracts spanning nearly two years upon the end of the contracts’ terms. The JCO partners with commercial providers to deliver diverse, timely space domain awareness (“SDA”) capabilities.
Our diverse international customer base is supported by customers located in the Asia Pacific region (“APAC”), Europe, Middle East and Africa region (“EMEA”), and the Americas / Other. International customers contributed a total of $46.0 million and $26.8 million in revenue in 2025 and 2024, respectively. These international customers for 2025 include:
•Customer B in APAC, for which our combined contracts spanning almost three years generated $18.8 million in revenue for the year ended December 31, 2025.
•Customer D in EMEA, for which our combined contracts over four years generated $7.4 million in revenue for the year ended December 31, 2025.
The high-quality nature of our contracts is reflected in the fact that, in 2025, 73% of our revenue was comprised of prime contracts, compared to subcontracts comprising 27%. In 2025, our U.S. revenue was comprised of 95% prime contracts and 5% subcontracts, whereas our international revenue was 40% prime and 60% subcontracts. International subcontracted revenues typically fulfill jurisdiction-specific legal mandates on having local partners and generally do not present a risk of disintermediation.
U.S. and International Go-to-Market Strategy
We have developed a sophisticated go-to-market strategy that allows us to efficiently and effectively sell to government customers at scale. Our sales motion targets customers with the appropriate budgets, needs, and capabilities to leverage RF data at scale, and we proactively address our customers’ needs. Existing engagements allow us to identify new tasking opportunities even before our customers prepare formal requests for proposals. We leverage our technology to become embedded in our customers’ workflows. When customers adopt our platform, they often immediately realize the benefits and mission-critical nature of our analytics and insights, leading to a cycle with growth in both contract scope and value over time.
Domestically, our contracts with the U.S. Government are differentiated from traditional procurement channels, moving rapidly from sales engagement to proposal and contract award. We use our flexible, well-funded contract vehicles to identify and generate end market demand and get on contract rapidly. Internationally, we have a robust sales and business development team that works with partners to identify the appropriate procurement agency and mechanism needed to purchase our data on behalf of international end users. We have a proven process for establishing marketing and pre-sale licenses to enable our international business development efforts. We engage with international customers both from the “bottoms up” to capture and address operational working requirements and, at the same time, from the “top down” to ensure we have the appropriate level of political and senior customer buy-in and support for our engagement, which often involves liaison with associated U.S. Government embassy, White House, and State personnel.
Additionally, we work with local resellers and partners, including under exclusive reseller arrangements, where we are legally obligated to do so or where they provide additional access and local content that can help serve our customer.
“Land and Expand” Sales Motion
We serve data customers through a “land and expand” upsell model. Our typical data customer solution leverages our products as the foundation, and incorporates additional data sources, software, tools, or IT hardware to meet bespoke customer needs. These contracts typically begin with a “test and evaluate” phase which are normally one to three month engagements, where we prove our mission utility to the customer and secure the necessary Technical Assistance Agreements for commercial export from the U.S. Government, when needed for sales to international customers. From there, we move to operational contracts for a subset of products, before expanding to additional products and a greater scope of analytics.
We have steadily expanded consumption of data, processing, and insights over time, reflecting larger consumption per customer. Larger consumption per customer is driven both by an increase in quantity of collections per customer and expanding the deployment of additional products and services with existing customers. We have grown the number of revenue generating collections annually. We price our products based on value delivered to the end consumer and not based on cost. Our customers recognize the value our services provide, and our pricing strategy has evolved over time in line with the enhanced value we deliver to customers. We have invested significantly in R&D to develop hardware and software enhancements, providing further value to customers. We have also demonstrated a track record of increasing term lengths as our engagements with individual customers mature over time.
Customer Relationships
Our platform is mission-critical for our customers, and we have a long history of serving these customers, building highly specialized signals algorithms, software and hardware for strategic and tactical applications. The long-term nature of our customer relationships drives meaningful predictability and visibility into future revenue. Our unclassified and shareable data model enables extended use cases for end customers, enhancing interoperability and mission effectiveness, as well as commercial revenue applications. As a result, we become embedded in our customer workflows and become critical for their ability to consistently achieve respective mission requirements. The data and insights we sell become integral to our customers’ workflows. We have retained and grown the vast majority of all key accounts, and much of our business is long-running contracts that are regularly renewed, often without a competitive process.
Backlog
Growth in backlog is a key measure of our business. Our backlog supports predictable revenue expansion through a recurring model, enabling forward revenue visibility. Over time, our backlog has consistently expanded, growing from $11.8 million in 2022 to $302.7 million in 2025.
| | | | | | | | | | | | | | |
| | As of December 31, |
(in thousands) | | 2025 | | 2024 |
Backlog | | $ | 302,719 | | | $ | 44,098 | |
Our backlog represents the portion of legally binding contracts that are expected to result in future revenue. Backlog may also include change orders for any contracts that have been formally contracted. This includes firm contracts that contain remaining performance obligations, including the cancellable portion of the contract value for contracts that provide the customer with a right to terminate for convenience without incurring a substantive termination penalty. Backlog also can include up to the remaining ceiling on single award IDIQ contracts where no task orders have been issued. Backlog excludes the value of unexercised options to extend contracts, the value of multi-award IDIQ contracts,
and the value of any contracts, or a portion thereof, where management deems execution to be unlikely to result in revenue due to customer-specific or other factors. See “—Key Performance Indicators and Non-GAAP Financial Measures” below for more information on backlog.
The growth in backlog from December 31, 2024 to December 31, 2025 was primarily attributable to our execution of new contracts, and expansion of existing contracts, within the period. Additionally, of this increase, $41.7 million of backlog resulted from contracts obtained through the ISA acquisition.
Trends and Key Factors Affecting Performance
Our results have been affected, and are expected to be affected in the future, by a variety of factors. A discussion of key factors that have had, or may have, an effect on our results is set forth below. For a further discussion of the factors affecting our results of operations, see “Risk Factors.”
Macroeconomic Pressures
In recent years, geopolitical instability, including wars and conflicts, as well as impacts from other global events, have resulted in opportunities for companies in the defense technology market. Increasing global tensions have led to surging global defense budgets amidst an urgent need for advanced technology capability to counter near-peer threats. However, certain disruptions to the global economy, including market disruptions, monetary, and fiscal policy uncertainty, supply chain challenges, high interest rates and inflationary pressures have contributed to an inflationary environment that has adversely affected, and may continue to adversely affect, the price and availability of certain products and services necessary for our operations, which in turn may adversely impact our business and operating results. In addition, the global trade environment is uncertain and rapidly evolving as a result of substantial new tariffs, and other restrictive trade policies. Trade disputes, trade restrictions, tariffs, and other geopolitical tensions between the U.S. and other countries, including our U.S. allies, may lead to market disruptions and supply chain interruptions, and exacerbate unfavorable macroeconomic conditions. The potential impact of existing and future tariffs on our business and results of operations will depend on their timing, duration, and magnitude.
Government Environment and Regulations
Our industry is affected by U.S. and international government budget and spending levels, including shutdowns of the U.S federal government due to a lapse in appropriations, changes in demand, changes in policy positions or priorities, the domestic and global political and economic environment, and the evolving nature of the space and defense sector. National security and advancements in space-based technologies and defense capabilities are core focuses of the U.S. Government on a bipartisan basis and closely align with the key messages from the current U.S. presidential administration regarding space. Additionally, international U.S. allies are interested in building independent sovereign capabilities. Government expenditures and policy evolutions favorable to and emphasizing the usage of commercial technologies in the defense procurement process have fueled our growth in recent years and have resulted in our continued ability to secure increasingly valuable contracts as well as the ability to continue financing the growth and development of our business. We expect our total addressable market to reach approximately $34.0 billion by 2030, driven by significant growth in processing and analytics capabilities beyond data collection where we excel. Any changes in budget and spending levels, policies, or priorities, may have an adverse impact on our business and operating results. In addition, U.S. and non-U.S. Government procurement regulations impose various operational requirements on government contractors. Non-compliance with any of these regulations could materially and adversely affect our operating results.
Our Technology
We are successful because of the strength of our software and technology. We leverage five years of battle-tested data to turn raw spectrum into actionable intelligence, which is built on years of contested-environment data collection and a mature processing pipeline. We employ our proprietary AI algorithms to
identify, track, analyze, and predict specific emitters, converting data into insights for Warfighters. We have recruited engineers with prior experience in premier government signal processing environments and nearly half of our personnel hold security clearances. In this market, even small algorithmic and data gains drive outsized operational impact, making our intellectual property rare and defensible. We expect to continue to innovate our software and technology, but any difficulties in achieving or effectively continuing to innovate could have a negative effect on our operating results.
Ability to Continue to Expand our Service Offerings
To continue gaining market share and attracting customers in the near term, we are focused on expanding market penetration by delivering improved RF intelligence capabilities to existing and new customers. We intend to transform RF intelligence into a fully automated, globally persistent, real-time capability to better serve the operational mission. By reducing end-to-end latency from hours to minutes – and ultimately to seconds – we intend to enable insights fast enough to support tactical decision-making for missions such as Warfighter support, long-range fires, tactical ISR, and Golden Dome defense systems. In parallel with our continuous improvement of capabilities and latency, we are evolving beyond data delivery with the goal of becoming a global, multi-domain RF intelligence provider. We intend to expand our operations and offerings significantly, but any difficulties in achieving or effectively managing our growth could have a negative effect on our operating results.
Acquisitions
We consider strategic acquisitions of businesses and other investments to expand our collection and processing capabilities, deepen vertical integration, and accelerate entry into adjacent mission areas, with the goal of expanding our current portfolio and accessing new customers and technologies. Our recent acquisition of ISA, coupled with our acquisition of Aurora in December 2023 (the “Aurora Acquisition”) enhances our existing offerings by providing multi-domain, low-latency automated payloads, expanded ground processing, and highly trusted service support for the signals intelligence community. We target companies that not only enhance our technical capabilities but also embed us more deeply into our customers’ mission workflows. By integrating strategic acquisitions with our strong internal execution, we aim to build a broader product and service offering with a goal of enhancing our growth and market share. These strategic transactions may be costly, time consuming and challenging to consummate and/or integrate with our existing businesses and may result in fluctuations in our operating results and financial position across periods that may be unrelated to our underlying performance. Any particular acquisition or other investment we make could prove less successful than anticipated and have a negative effect on our business.
Key Performance Indicators and Non-GAAP Financial Measures
We focus on a variety of key performance indicators and non-GAAP financial measures to plan, measure and evaluate our business and financial performance, identify key trends affecting our business, inform our strategic business decisions, and develop operational goals for managing our business.
We believe that these key performance indicators and non-GAAP financial measures provide useful information to investors and others by allowing for transparency with respect to key metrics used by management in our financial and operational decision-making. These metrics may be used by investors in understanding and evaluating our operating results and enhancing the overall understanding of our past performance and future prospects. Our calculation of key performance indicators and non-GAAP financial measures may be different than or otherwise not comparable to similarly named metrics used by other companies.
The following table presents a summary of our key performance indicators and non-GAAP financial measures for the years ended December 31, 2025 and 2024.
| | | | | | | | | | | |
(in thousands) | Year ended December 31, 2025 | | Year ended December 31, 2024 |
Key Performance Indicators | | | |
Backlog(1) | $302,719 | | | $44,098 | |
Net income (loss) | $2,673 | | | ($28,997) | |
Net cash (used in) provided by operating activities | ($17,339) | | | $11,966 | |
Non-GAAP Financial Measures | | | |
Adjusted EBITDA(2) | $24,768 | | | ($6,349) | |
Free Cash Flow (2) | ($28,406) | | | ($23,785) | |
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(1)See “Our Business Model—Backlog” above for more information on backlog.
(2)Adjusted EBITDA and Free Cash Flow are non-GAAP financial measures. For definitions of Adjusted EBITDA and Free Cash Flow, as well as reconciliations to their most directly comparable financial measures calculated and presented in accordance with U.S. GAAP, please see “—Non-GAAP Financial Measures” below.
Non-GAAP Financial Measures
In addition to the financial information prepared in accordance with U.S. generally accepted accounting principles (“GAAP”), we provide non-GAAP financial measures. We define Adjusted EBITDA as net income (loss) before interest, taxes, depreciation, and amortization, further adjusted to remove the impact of stock-based compensation, acquisition-related costs, costs related to this offering, settlements, and change in fair value of warrant liabilities. We define Free Cash Flow as net cash provided by (used in) operating activities less purchases of satellites, property, and equipment.
We use Adjusted EBITDA and Free Cash Flow in conjunction with other GAAP measures to evaluate the effectiveness of our business strategies, make strategic decisions, and communicate with our board of directors and investors concerning our financial performance. We use these non-GAAP financial measures to assess our financial performance because they allow us to compare our operating performance on a consistent basis across periods by removing the effects of our capital structure (such as varying levels of interest expense and income), asset base (such as depreciation and capital expenditures) and other items (such as non-recurring or non-cash costs) that impact the comparability of financial results from period to period.
We believe that the presentation of these non-GAAP financial measures will provide useful information to investors and analysts in assessing our financial performance and results of operations across reporting periods by excluding items we do not believe are indicative of our core operating performance. Net income (loss) is the U.S. GAAP measure most directly comparable to Adjusted EBITDA. Net cash provided by (used in) operating activities is the U.S. GAAP measure most directly comparable to Free Cash Flow. Our non-GAAP financial measures should not be considered as an alternative to the most directly comparable U.S. GAAP financial measure. You are encouraged to evaluate each of these adjustments and the reasons management considers them appropriate for supplemental analysis.
In evaluating Adjusted EBITDA and Free Cash Flow, you should be aware that in the future we may incur expenses that are the same as or similar to some of the adjustments in such presentation. Our presentation of these non-GAAP financial measures should not be construed as an inference that our future results will be unaffected by unusual or non-recurring items. There can be no assurance that we will not modify the presentation of Adjusted EBITDA and Free Cash Flow in the future, and any such modification may be material. Adjusted EBITDA and Free Cash Flow have important limitations as analytical tools, and you should not consider these non-GAAP financial measures in isolation or as a substitute for analysis of our operating results as reported under U.S. GAAP. Adjusted EBITDA and Free
Cash Flow may be defined differently by other companies in our industry and may not be comparable to similarly titled measures of other companies, thereby diminishing their utility.
Adjusted EBITDA
The table below presents our Adjusted EBITDA, reconciled to our Net income (loss), for the years ended December 31, 2025 and 2024:
| | | | | | | | | | | |
| Year ended December 31, 2025 | | Year ended December 31, 2024 |
(in thousands) | | | |
Net income (loss) | $ | 2,673 | | | $ | (28,997) | |
Adjusted for: |
| | |
Interest income | (3,409) | | | (5,799) | |
Interest expense | 304 | | | 177 | |
Income tax (benefit) expense | (6,733) | | | — | |
Depreciation and amortization | 23,568 | | | 25,185 | |
Stock-based compensation | 4,290 | | | 2,885 | |
Acquisition costs(1) | 2,118 | | | — | |
One-time costs related to IPO(2) | 991 | | | — | |
Settlements, net of related legal expenses(3) | (1,304) | | | — | |
Change in fair value of warrant liabilities | 2,270 | | | 200 | |
Adjusted EBITDA | $ | 24,768 | | | $ | (6,349) | |
_______________
(1)Represents costs for legal, advisory fees and other costs incurred in connection with the December 2025 ISA Acquisition. Refer to Note 3 of the accompanying notes to our consolidated financial statements included elsewhere in this prospectus for additional information.
(2)Represents costs incurred related to the IPO that do not meet the direct and incremental criteria per SEC Staff Accounting Bulletin Topic 5.A to be netted against the gross proceeds of the offering and that are not expected to recur in the future.
(3)Represents costs for legal fees and settlement related to litigation initiated by us against a third party, which are not part of our ordinary legal expenses and not reflective of our core operating performance.
Free Cash Flow
Free Cash Flow is a non-GAAP financial measure. We believe that Free Cash Flow is a meaningful indicator of liquidity that provides information to management and investors about the amount of cash generated from or used in operations that, after purchases of property, and equipment, can be used for strategic initiatives, including continuous investment in our business and strengthening our balance sheet.
Free Cash Flow has limitations as a liquidity measure, and you should not consider it in isolation or as a substitute for analysis of our cash flows as reported under U.S. GAAP. Free Cash Flow may be affected in the near to medium term by the timing of capital investments, fluctuations in our growth and the effect of such fluctuations on working capital, and changes in our cash conversion cycle.
The following table presents a reconciliation of net cash (used in) provided by operating activities, the most directly comparable financial measure presented in accordance with U.S. GAAP, to Free Cash Flow:
| | | | | | | | | | | |
(in thousands) | Year ended December 31, 2025 | | Year ended December 31, 2024 |
Net cash (used in) provided by operating activities | $ | (17,339) | | | $ | 11,966 | |
Purchases of satellites, property, and equipment | $ | (11,067) | | | (35,751) | |
Free Cash Flow | $ | (28,406) | | | $ | (23,785) | |
Components of Results of Operations
Revenue
We generate revenue primarily from fixed price contract arrangements for RF signal mapping products that are used to analyze and track radio waves, while presenting the data in a format that is most useful to the customer. For the year ended December 31, 2025, fixed price contract arrangements accounted for over 99% of our revenue, and our revenue mix has remained unchanged since such period. We also sell archived data to our customers upon request as well as data on a subscription basis, which is tailored to meet the customer’s needs (i.e., providing data daily, weekly, monthly, upon request, etc.). Additionally, we have reseller arrangements with our distribution partners. Revenue under resell arrangements is generally recognized net of any reseller discounts, as the reseller is considered our customer, when the products are delivered to the reseller, provided all other revenue recognition criteria are met. The agreements can be single year or multiyear and often contain minimum commitments by year. For agreements that call for upfront payments of the minimum commitments, revenue is deferred until a sale of our product occurs.
We address our customers’ needs through the delivery of data and analytics that provide intelligence across the following applications: Maritime Intelligence, Military Radar Monitoring, GNSS Jamming Detection, Communications Mapping, and Spectrum Exploitation through the collection and delivery of data. The data delivered may be unprocessed or processed depending on the client’s needs. For arrangements where the performance obligation is the collection and delivery of data, revenue is recognized at a point-in-time as data is delivered to the customer.
Revenues from our recent acquisition of ISA are derived primarily from long-term contracts with U.S. government agencies and prime contractors to provide engineering services, systems integration and mission support. Contracts are executed under Federal Acquisition Regulation (“FAR”) and include cost-plus-award-fee, cost-plus-fixed-fee, firm fixed-price, time-and-materials and cost-reimbursement arrangements.
Services provided to the customer may also include professional services, which include on-site data analytics support, studies, trainings services, and other general support services. Professional services revenue including on-site data analytics support and studies are recognized over time.
Direct cost of sales, excluding depreciation and amortization
Cost of sales primarily includes employee-related costs for personnel involved in the execution of customer contracts, such as salaries, benefits, bonuses, and stock-based compensation. To a lesser extent, cost of sales includes travel and accommodation costs, certain storage and computing expenses, and costs from professional services, including costs paid to subcontractors, solution partners and certain third-party fees which directly relate to revenue generating contracts.
Indirect cost of sales, excluding depreciation and amortization
Indirect cost of sales includes expenses such as indirect engineering labor, indirect travel, allocated indirect fringe costs and other expenses and departmental costs that are related to the fulfillment of
contract expenses but are not directly attributable to a single revenue-related contract. For certain governmental contracts that are governed by Cost Accounting Standards (“CAS”) requirements, these costs are considered expenses which are allowable and included in our total estimated contract cost allocation.
Selling, general and administrative expenses
Selling, general and administrative expenses primarily consist of employee-related costs including salaries, stock-based compensation, and benefits for legal, finance, information technology, sales, and human resources staff which are otherwise not allocated to indirect cost of sales for our CAS contracts. Expenses also consist of consultant expenses, sales commissions, costs associated with professional services, marketing events, and office occupancy-related costs.
We expect selling, general and administrative expenses to increase in the future as we incur additional costs associated with operating as a public company, including increased expenses related to legal, audit, accounting, regulatory, and tax-related services associated with maintaining compliance with exchange listing and SEC requirements, director and officer insurance costs, investor and public relations costs, and other administrative and professional services. In addition, selling, general and administrative expenses will also include transaction bonuses of $300,000 and $175,000 to be paid to John Serafini and Craig Searle, respectively, in connection with and at the time of the completion of this offering.
Research and development expenses
Research and development costs consist of hardware and software research and development including designing, developing, and testing new satellite and sensor technology and data science modeling and algorithm development related to our platform. Our research and development expenses consist of employees’ salaries, taxes and benefits, consultant expenses, certain software and storage expenses, and materials and supplies which are otherwise not allocated to indirect cost of sales for our CAS contracts.
Depreciation and amortization
Depreciation and amortization costs include the depreciation of satellites, machinery, and equipment, as well as the amortization of finite-lived licenses and patents, trade names, and government contracts and developed technology.
Interest income
Interest income primarily relates to interest earned on cash and cash equivalents.
Interest expense
Interest expense relates to the amortization of debt issuance costs incurred to obtain financing under our Loan and Security Agreements (as defined below), as well as the allocation of proceeds to warrants issued to the lender. Debt issuance costs are amortized over the term of the individual agreements using the effective interest method. We also recognize debt issuance costs under the Loan and Security Agreements. These costs are recorded as a reduction of our principle loan balances and are amortized over the lives of the Loan and Security Agreements, respectively, using the straight-line method.
Other (expense) income, net
Other non-operating (expense) income, net includes adjustments to fair value associated with the contingent earnout liability recorded upon the Aurora Acquisition, realized gains or losses on the sale of available for sale securities, realized gains and losses arising from foreign currency transactions, and fair value gains and losses on warrant liabilities.
Income tax benefit (expense)
Income tax benefit (expense) consists of federal and certain state income taxes in the United States and income taxes in certain foreign jurisdictions. We account for income taxes using the asset and liability method, whereby deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carryforwards, and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax basis. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all the deferred tax assets will not be realized. Deferred tax assets and liabilities are adjusted for the effects of changes in laws and rates on the date of enactment.
We recognized a net loss and an effective tax rate of zero for the year ended December 31, 2024, and, therefore, had no federal taxable income. In addition, we have net operating loss carryforwards for federal income tax purposes. The federal net operating losses generated subsequent to the year ended December 31, 2017, carry forward indefinitely, while the remaining federal net operating loss carryforwards begin to expire in 2035.
Results of Operations
The following table sets forth a summary of our consolidated results of operations for the years ended December 31, 2025 and 2024.
| | | | | | | | | | | | | | | | | | | | | | | |
(in thousands) | Year ended December 31, 2025 | | Year ended December 31, 2024 | | $ Change | | % Change |
Revenue | $ | 98,743 | | | $ | 49,835 | | | $ | 48,908 | | | 98 | % |
Revenue from related parties | 18,917 | | | 17,724 | | | 1,193 | | | 7 | % |
Total Revenue | 117,660 | | | 67,559 | | | 50,101 | | | 74 | % |
| | | | | | | |
Operating expenses | | | | | | | |
Direct cost of sales, excluding depreciation and amortization | 21,687 | | | 18,927 | | | 2,760 | | | 15 | % |
| Indirect cost of sales and other expenses, excluding depreciation and amortization | 2,092 | | | 1,421 | | | 671 | | | 47 | % |
Selling, general and administrative | 46,291 | | | 31,919 | | | 14,372 | | | 45 | % |
Research and development | 28,913 | | | 24,793 | | | 4,120 | | | 17 | % |
Depreciation and amortization | 23,568 | | | 25,185 | | | (1,617) | | | (6) | % |
Total operating expenses | 122,551 | | | 102,245 | | | 20,306 | | | 20 | % |
Income (loss) from operations | (4,891) | | | (34,686) | | | 29,795 | | | (86) | % |
Other income (expense): |
| |
| |
| |
|
Interest income | 3,409 | | | 5,799 | | | (2,390) | | | (41) | % |
Interest expense | (304) | | | (177) | | | (127) | | | 72 | % |
Other (expense) income, net | (2,274) | | | 67 | | | (2,341) | | | (3493) | % |
Total other income, net | 831 | | | 5,689 | | | (4,858) | | | (85) | % |
Loss before income taxes | (4,060) | | | (28,997) | | | 24,937 | | | (86) | % |
Income tax benefit (expense) | 6,733 | | | — | | | 6,733 | | | 100 | % |
Net income (loss) | $ | 2,673 | | | $ | (28,997) | | | $ | 31,670 | | | (109) | % |
Revenue
Total revenue increased by $50.1 million, or 74%, to $117.7 million during the year ended December 31, 2025 from $67.6 million during the year ended December 31, 2024, primarily driven by the factors discussed below. Revenue from related parties totaled $18.9 million (16% of revenue) in 2025 versus $17.7 million (26% of revenue) in 2024. The decrease in percent of revenue is driven by the increase in overall revenue from non-related parties.
The following table sets forth a summary of our consolidated revenue by type for the periods indicated, and the changes between comparative periods.
| | | | | | | | | | | | | | | | | | | | | | | |
| For the Year Ended
December 31, | | | | |
($ in thousands) | 2025 | | 2024 | | $ Change | | % Change |
U.S | $ | 71,614 | | | $ | 40,757 | | | $ | 30,857 | | | 76 | % |
International | 46,046 | | | 26,802 | | | 19,244 | | | 72 | % |
Total revenue | $ | 117,660 | | | $ | 67,559 | | | $ | 50,101 | | | 74 | % |
U.S Revenue
U.S revenue increased by $30.9 million in 2025, or 76%, to $71.6 million in 2025 from $40.8 million in 2024. The year-over-year change was mainly due to a $30.4 million increase in government revenue. The increase resulted from higher sales of radio frequency data, driven by continued recurring purchases from existing U.S. government customers as well as additional revenue generated from new customers and contracts acquired during the period. In addition, ISA contributed to $0.8 million of this increase. These increases were offset by a $0.4 million decrease in commercial revenue.
International Revenue
International revenue increased by $19.2 million, or 72%, to $46.0 million in 2025 from $26.8 million in 2024, primarily due to stronger sales of radio frequency data, with contributions from both existing and new customers.
Direct cost of sales, excluding depreciation and amortization
Direct cost of sales increased $2.8 million, or 15%, to $21.7 million in 2025 from $18.9 million in 2024. Direct cost of sales rose mainly due to a $2.7 million increase in ground station expenses and $0.5 million in other project-specific costs. Direct labor and stock-based compensation also increased by $0.5 million and $0.1 million respectively. These increases were partly offset by a total $0.5 million decrease in employee benefit, a $0.5 million reduction in satellite operations costs and payroll-related expenses, and a $0.5 million reduction in allocated engineering and other labor related costs. Our recent ISA acquisition contributed $0.6 million, mostly in direct labor and health insurance.
Indirect cost of sales and other expenses, excluding depreciation and amortization
Indirect cost of sales increased $0.7 million, or 47%, to $2.1 million in 2025 from $1.4 million in 2024. The increase in indirect cost of sales was driven primarily by a $0.3 million increase in rent and a $0.3 million increase in indirect software costs. In addition, ISA accounted for $0.3 million of the year over year increase. These increases were partially offset by a $0.2 million decrease in indirect consultant costs and lower discretionary spending across bonuses, travel, and other indirect expenses.
Selling, general and administrative expenses
Selling, general, and administrative (“SG&A”) expenses increased by $14.4 million, or 45%, rising from $31.9 million in 2024 to $46.3 million in 2025. This growth was primarily attributable to higher compensation and professional services costs. Notable contributors included a $4.1 million increase in
incentive compensation and bonuses, a $1.4 million rise in commissions, and a $1.3 million increase in non-recurring legal fees associated with special projects. Additionally, general and administrative labor costs rose by $1.1 million, consultant and temporary labor costs by $1.4 million. Recruiting agency fees, stock-based compensation, accounting and audit fees, and marketing-related expenses each grew by $0.6 million, $0.7 million, $0.4 million, and $0.4 million, respectively. The remaining net increase of $3.0 million was spread across various SG&A categories, including: travel, facilities, IT, insurance, taxes, and other miscellaneous operating expenses.
Research and development expenses
Research and development expenses increased by $4.1 million, or 17%, to $28.9 million in 2025 from $24.8 million in 2024. The increase was primarily driven by higher employee compensation-related costs of $1.6 million, increased consulting expenses of $1.3 million, higher software-related costs of $0.7 million, and a $0.5 million increase in indirect engineering labor.
Depreciation and Amortization
Depreciation and Amortization expenses declined by $1.6 million, representing a 6% decrease, from $25.2 million in 2024 to $23.6 million in 2025. The decrease was mainly due to a $1.9 million decrease in satellite depreciation, which resulted from non-recurring depreciation adjustments recorded in the prior year partially offset by the timing of assets being placed into service during the periods.
Interest income
Interest income decreased by $2.4 million in 2025, or 41%, to $3.4 million in 2025 from $5.8 million in 2024. The change was primarily attributed to a reduction in interest earned on cash and cash equivalents, resulting from lower average cash balances during 2025.
Other (expense) income, net
Other (expense) income, net decreased by $2.3 million in 2025, or 3493%, to $(2.3) million in 2025 from $0.1 million in 2024. The decrease was largely due to a $2.5 million loss on the fair value adjustment of warrant liabilities in 2025.
Income tax benefit (expense)
The income tax benefit increased by $6.7 million in 2025 (100%). The amounts for 2025 related to the release of certain tax liabilities related to the ISA acquisition in December 2025 from our outstanding tax assets generated from prior period losses. In 2024, our Income tax benefit (expense) was zero, as we generated a net loss for the year, had a zero effective tax rate, and maintained federal net operating loss carryforwards available to offset future taxable income.
Liquidity and Capital Resources
We measure liquidity in terms of our ability to fund the cash requirements of our business operations, including working capital needs, capital expenditures, contractual obligations, debt service, acquisitions and other commitments with cash flows from operations and other sources of funding. We have historically financed our operations primarily through cash from operating activities, cash on hand, the issuance of convertible preferred stock and amounts available under our Loan and Security Agreement (as defined below). Our primary uses of cash are operating expenses, including capital expenditure, personnel salaries and benefits, acquisitions and servicing debt obligations.
Our primary sources of liquidity as of December 31, 2025, include our existing cash and cash equivalents of $92.7 million, our Senior Term Loan and Mezzanine Loan provide an aggregate amount of up to $48.6 million under the Loan and Security Agreement, which was fully drawn as of December 31, 2025.
We believe that our existing cash and cash equivalents, together with our cash from operations, will be adequate to meet our liquidity requirements for at least twelve months following the date of this prospectus. Our future capital requirements will depend on several factors, including our financial performance, which is subject to many economic, commercial, regulatory, financial, and other factors that are beyond our control.
We will also incur significant expenses as a public company that we have not incurred as a private company, including costs associated with public company reporting requirements of the Exchange Act, as well as the corporate governance standards of the Sarbanes-Oxley Act. In the future, we could be required, or may elect, to seek additional funding through the sale of equity securities or debt financing arrangements; however, additional funds may not be available on terms acceptable to us, if at all. Any inability to raise capital could adversely affect our ability to achieve our business objectives.
Debt
Loan and Security Agreement
On March 28, 2024, we amended our Loan and Security Agreement with SVB (the “2024 Amendment”) to reduce the revolving line commitment from $50.0 million to $25.0 million, extend maturity to March 28, 2027, and add a term loan commitment of $15.0 million with an availability period ending on March 28, 2026 (the “2024 Term Loan Commitment”). On April 29, 2024, we repaid our outstanding debt of $10.5 million under the Loan and Security Agreement. In conjunction with the repayment, we wrote off $0.1 million of unamortized debt cost. As of December 31, 2024, we had not drawn on the 2024 Term Loan Commitment and had all $25.0 million of our revolving loan commitments available. While we were not in compliance with certain reporting obligations in our Loan and Security Agreement as of December 31, 2024, SVB subsequently granted us a waiver for such noncompliance and, as a result, no event of default occurred in connection with such reporting obligations.
In connection with the ISA acquisition noted above, on December 18, 2025, the Company amended and replaced the legacy Loan and Security Agreement with the Third Amended and Restated Loan and Security Agreement (the “2025 Amendment”). The 2025 Amendment provides for the $14.6 million Senior Term Loan, which was fully funded on December 18, 2025 and matures on September 1, 2028. The Senior Term Loan bears interest at a per annum rate equal to the greater of the Wall Street Journal Prime Rate and 6.75%.
The 2025 Mezzanine Loan and Security Agreement provides for the $34.0 million Mezzanine Loan, which was fully funded on December 18, 2025 and matures on December 18, 2028. The Mezzanine Loan bears interest at (i) a per annum cash-pay rate equal to the greater of the Wall Street Journal Prime Rate plus a margin of 2.10% and 9.35%, and (ii) a per annum paid-in-kind rate equal to 1.50% (compounded monthly). The 2025 Mezzanine Loan and Security Agreement also provides for a 1% commitment fee, a final payment fee of 1.95%, and a prepayment fee if the Mezzanine Loan is repaid prior to the second anniversary of the closing date (subject to certain exceptions).
The 2025 Loan and Security Agreements include certain mandatory prepayment provisions based on the ratio of our consolidated debt to revenue and include a financial covenant requiring us to maintain, at all times, not less than $10 million in consolidated unrestricted cash and cash equivalents.
The 2025 Loan and Security Agreements also contain a number of customary representations, warranties, and covenants that, among other things, limit our ability to (subject to certain qualifications and exceptions): create liens and encumbrances; incur additional indebtedness; merge, dissolve, liquidate, or consolidate; make acquisitions, investments, advances, or loans; dispose of or transfer assets; pay dividends or make other payments in respect of our capital stock; amend certain material documents; redeem or repurchase certain debt; make payments on subordinated debt; and engage in certain transactions with affiliates. The 2025 Loan and Security Agreements also contain customary events of default, including: nonpayment of principal, interest, fees, or other amounts; material inaccuracy of a representation or warranty; failure to perform or observe covenants; cross-defaults with certain other
indebtedness; bankruptcy and insolvency events; material monetary judgment defaults; and the occurrence of a material adverse change. Upon the occurrence of an event of default (subject, in certain cases, to notice and grace periods), obligations under the 2025 Loan and Security Agreements may be accelerated. The obligations under the 2025 Loan and Security Agreements are secured by liens on substantially all of our assets. As of December 31, 2025, we were in compliance with our covenants under the 2025 Loan and Security Agreements.
On December 18, 2025, in connection with the 2025 Loan and Security Agreement and the 2025 Mezzanine Loan and Security Agreement, we issued warrants (the “2025 Bank Warrants”) to SVB and the other lenders party thereto to purchase a total of 173,591 shares of common stock at an exercise price of $4.65 per share, subject to adjustments. The 2025 Bank Warrants will expire on December 18, 2035. The estimated fair value of the Bank Warrants upon issuance was $1.6 million. We recorded the 2025 Bank Warrants as equity in our consolidated balance sheets and capitalized the fair value of the warrants as a component of the deferred debt issuance costs.
We also maintain performance bonds in the form of letters of credit for international customers, reported as restricted cash. As of December 31, 2024, we had three standby letters of credit from SVB outstanding, and the total standby letter of credit reported as restricted cash was $4.6 million.
We intend to use $ million of the net proceeds received by us from this offering to repay all of our outstanding borrowings under the 2025 Loan and Security Agreements, with any remaining proceeds being used for general corporate and working capital purposes. See “Use of Proceeds.”
Convertible Preferred Stock and Warrants
During the year ended December 31, 2021, we issued 6,960,439 shares of Series C Preferred Stock, as well as 12,857,720 shares of Series D Preferred Stock. The Series C participants received warrants to purchase 1,424,002 shares of our common stock with an exercise price of $0.01 per share (the “Series C Warrants”), and the Series D participants received warrants to purchase 1,823,543 shares of our common stock with an exercise price of $0.01 per share (the “Series D Warrants”). We recorded the Series C Warrants and Series D Warrants within equity as of the issuance date.
During the year ended December 31, 2023, we issued 6,085,161 shares of Series D-1 Preferred Stock. In connection with the Series D-1 Preferred Stock closing that occurred on July 7, 2023 (the “First D-1 Closing”), the First D-1 Closing participants received certain warrants to purchase a total of 2,470,840 shares of our common stock. The First D-1 Closing Warrants issued consisted of (i) 1,588,411 penny warrants with an exercise price of $0.01 per share (the “Series D-1 Penny Warrants”), (ii) 630,313 merger warrants with an exercise price of $0.01 per share (the “Series D-1 Merger Warrants”), and (iii) 252,116 at-the-money warrants with an exercise price of $11.1747 per share (the “Series D-1 At-The-Money Warrants”, and together with the Series D-1 Penny Warrants and the Series D-1 Merger Warrants, the “First D-1 Closing Warrants”). We classified the First D-1 Closing Warrants as a liability as of the issuance date.
In connection with the Series D-1 Preferred Stock closing that occurred on September 29, 2023 (the “Second D-1 Closing”), the Second D-1 Closing participants received certain warrants to purchase a total of 317,333 shares of our common stock, consisting of (i) 273,864 Series D-1 Penny Warrants and (ii) 43,469 Series D-1 At-The-Money Warrants (collectively, the “Second D-1 Closing Warrants” and together with the First D-1 Closing Warrants, the “Series D-1 Warrants”). We determined that Series D-1 At-The-Money Warrants associated with the Second D-1 Closing should be classified as liability, while the Series D-1 Penny Warrants should be equity-classified as of the issuance date. In conjunction with the Second D-1 Closing, we determined that the Series D-1 Penny Warrants and the Series D-1 Merger Warrants from the First D-1 Closing should be equity-classified and, therefore, reclassified the warrants to equity as of September 29, 2023.
In December 2025, we entered into the Series E Purchase Agreement with certain investors, pursuant to which we agreed to issue and sell to such investors an aggregate of 4,242,048 shares of
Series E Preferred Stock at the Series E Per Share Price, resulting in aggregate gross proceeds of $80.0 million. In addition, we issued 1,325,316 shares of Series E Preferred Stock to certain legacy ISA shareholders as consideration for the ISA acquisition. In connection with the Series E Preferred Stock financing in 2025, we incurred issuance costs of $2.4 million, which is recorded as a reduction to the Series E Preferred Stock.
On December 18, 2025, we entered into an agreement whereby we agreed to sell 53,012 shares of Series E Preferred Shares at a future date for a price of approximately $18.86 per share. This agreement created a liability under ASC 480 to issue these shares at the specified price, however as the contracted price approximated market value of the Series E preferred both at December 18, 2025 and December 31, 2025, we concluded that the value of this liability was nominal and did not record a liability for this agreement. The Company received $1.0 million for these shares on January 14, 2026 and subsequently issued the related shares which in turn settled this agreement.
In a subsequent closing on January 9, 2026, we issued and sold an aggregate of 756,754 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $14.3 million. Additionally, in a subsequent closing on February 3, 2026, we issued and sold an aggregate of 5,301 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $0.1 million, in a subsequent closing on February 6, 2026, we issued and sold an aggregate of 74,217 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $1.4 million, and in a subsequent closing on February 23, 2026, we issued and sold an aggregate of 106,025 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $2.0 million.
There were 75,112 Series C Warrants exercised during the year ended December 31, 2023. During the year ended December 31, 2024, no Series D Warrants, or Series D-1 Warrants were exercised. During the year ended December 31, 2025, there were 5,261 Series C Warrants exercised and 2,015 Series D warrants exercised.
The Series C Warrants, Series D Warrants and Series D-1 Warrants (collectively, the “Preferred Financing Warrants”) shall expire upon the earliest to occur of (a) ten years after their respective issuance date or (b) immediately prior to the closing of certain specified events, including the closing of the sale of shares of our common stock to the public in a firm-commitment underwritten public offering pursuant to an effective registration statement under the Securities Act resulting in at least $150.0 million of gross proceeds to us and in connection with which our common stock is listed for trading on a nationally recognized exchange or marketplace approved by our board of directors (a “Qualifying IPO”). Unless the holder of such warrant notifies us in writing to the contrary, and unless earlier exercised, the Preferred Financing Warrants, to the extent vested, shall automatically be exercised for shares of our common stock immediately prior to the closing of the offering and will no longer be outstanding subsequent to the offering.
The following table represents our issued and outstanding Preferred Stock as of December 31, 2025:
| | | | | |
| |
Total Series A | 24,947,154 | |
Total Series B | 11,574,841 | |
Total Series C | 6,960,439 | |
Total Series D | 12,857,720 | |
Total Series D-1 | 6,085,161 | |
Total Series E | 5,567,364 | |
Total | 67,992,679 | |
Cash Flows
The following table summarizes our cash flows and cash and cash equivalents for the years ended December 31, 2025 and 2024.
| | | | | | | | | | | |
(in thousands) | Year ended December 31, 2025 | | Year ended December 31, 2024 |
Net cash (used in) provided by operating activities | $ | (17,339) | | | $ | 11,966 | |
Net cash used in investing activities | (83,263) | | | (75,467) | |
Net cash provided by (used in) financing activities | 126,109 | | | (10,904) | |
Net increase (decrease) in cash, cash equivalents and restricted cash | 25,507 | | | (74,405) | |
Cash, cash equivalents and restricted cash, beginning of period | 71,766 | | | 146,171 | |
Cash, cash equivalents and restricted cash, end of period | $ | 97,273 | | | $ | 71,766 | |
Cash (Used in) Provided by Operating Activities
Net cash (used in) provided by operating activities decreased by $29.3 million, or 245%, to $(17.3) million in 2025 compared to $12.0 million in 2024.
The decrease in cash provided from operating activities is primarily related to unfavorable changes in operating assets and liabilities in 2025 and lower depreciation in 2025, partially offset by a $31.7 million reduction in the net loss in 2025.
Cash Used in Investing Activities
Net cash used in investing activities increased by $7.8 million, or 10%, to $83.3 million in 2025 from $75.5 million in 2024. The variance was primarily driven by the acquisition of ISA in December 2025 for $111.9 million, net of cash acquired, coupled with a $24.7 million increase in the net purchase of satellites, property and equipment in 2025 (a use of cash of $11.1 million in 2025 versus a use of cash of $35.8 million in 2024). These amounts were partially offset by the sale of short-term investments in 2025 for $39.7 million compared to a net use of cash of $39.7 million to purchase short-term investments in 2024.
Cash Provided by (Used in) Financing Activities
Net cash provided by financing activities rose by $137.0 million to $126.1 million in 2025 as compared to a net use of cash from financing activities of $10.9 million in 2024. The increase in 2025 is primarily related to the proceeds from the $77.6 million net issuance of Series E Preferred Stock coupled with the issuance of $48.6 million of long-term debt. The use of cash in the prior year was primarily related to the repayment of outstanding long-term debt.
Selected Quarterly Financial Data
The following table summarizes our selected unaudited quarterly results of operations. The information for each of these periods have been prepared on the same basis as our audited annual consolidated financial statements and reflects, in the opinion of management, all adjustments of a normal, recurring nature that are necessary for the fair statement of the results of operations for these periods. This data should be read in conjunction with our unaudited condensed consolidated financial statements
and audited consolidated financial statements included elsewhere in this prospectus. Historical results are not necessarily indicative of the results that may be expected for the full fiscal year or any other period.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Three Months Ended |
| | December 31, 2025 | | September 30, 2025 | | June 30, 2025 | | March 31, 2025 | | December 31, 2024 | | September 30, 2024 | | June 30, 2024 | | March 31, 2024 |
| Revenue | | $ | 30,285 | | | $ | 27,405 | | | $ | 23,168 | | | $ | 17,885 | | | $ | 20,928 | | | $ | 11,198 | | | $ | 7,609 | | | $ | 10,100 | |
| Revenue from related parties | | 5,551 | | | 4,791 | | | 3,458 | | | 5,117 | | | 4,250 | | | 3,057 | | | 1,503 | | | 8,914 | |
Total Revenue | | 35,836 | | | 32,196 | | | 26,626 | | | 23,002 | | | 25,178 | | | 14,255 | | | 9,112 | | | 19,014 | |
| | | | | | | | | | | | | | | | |
| Operating expenses | | | | | | | | | |
| | | | | | |
| Direct cost of sales, excluding depreciation and amortization | | 6,375 | | | 5,453 | | | 4,988 | | | 4,871 | | | 4,680 | | | 4,895 | | | 4,885 | | | 4,467 | |
| Indirect cost of sales and other expenses, excluding depreciation and amortization | | 1,025 | | | 398 | | | 321 | | | 348 | | | 550 | | | 339 | | | 317 | | | 215 | |
| Selling, general and administrative | | 19,046 | | | 10,505 | | | 8,805 | | | 7,935 | | | 7,918 | | | 7,747 | | | 7,568 | | | 8,686 | |
| Research and development | | 7,972 | | | 8,175 | | | 5,860 | | | 6,906 | | | 5,275 | | | 6,852 | | | 6,796 | | | 5,870 | |
| Depreciation and amortization | | 6,778 | | | 5,934 | | | 5,856 | | | 5,000 | | | 7,069 | | | 5,127 | | | 8,355 | | | 4,634 | |
Total operating expenses |
| 41,196 | | | 30,465 | | | 25,830 | | | 25,060 | | | 25,492 | | | 24,960 | | | 27,921 | | | 23,872 | |
(Loss) income from operations | | (5,360) | | | 1,731 | | | 796 | | | (2,058) | | | (314) | | | (10,705) | | | (18,809) | | | (4,858) | |
| Other income (expense): | | | | | | | | | | | | | | | | |
| Interest income | | 702 | | | 853 | | | 948 | | | 906 | | | 1,229 | | | 1,513 | | | 1,449 | | | 1,608 | |
| Interest expense | | (252) | | | (17) | | | (17) | | | (18) | | | (52) | | | 2 | | | (90) | | | (37) | |
| Other income (expense), net | | (851) | | | (886) | | | (116) | | | (421) | | | 66 | | | — | | | 1 | | | — | |
Total other income (expense), net |
| (401) | | | (50) | | | 815 | | | 467 | | | 1,243 | | | 1,515 | | | 1,360 | | | 1,571 | |
| (Loss) income before income taxes | | (5,761) | | | 1,681 | | | 1,611 | | | (1,591) | | | 929 | | | (9,190) | | | (17,449) | | | (3,287) | |
| Income tax benefit (expense) | | 6,733 | | | — | | | — | | | — | | | — | | | — | | | — | | | — | |
Net Income (loss) |
| $ | 972 | | | $ | 1,681 | | | $ | 1,611 | | | $ | (1,591) | | | $ | 929 | | | $ | (9,190) | | | $ | (17,449) | | | $ | (3,287) | |
Reconciliation of Adjusted EBITDA to Net Income (Loss)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Three Months Ended |
| Adjusted EBITDA | | December 31, 2025 | | September 30, 2025 | | June 30, 2025 | | March 31, 2025 | | December 31, 2024 | | September 30, 2024 | | June 30, 2024 | | March 31, 2024 |
| Net income (loss) | | $ | 972 | | | $ | 1,681 | | | $ | 1,611 | | | $ | (1,591) | | | $ | 929 | | | $ | (9,190) | | | $ | (17,449) | | | $ | (3,287) | |
| Adjustments: | | | | | | | | | | | | | | | | |
| Interest income | | (702) | | | (853) | | | (948) | | | (906) | | | (1,229) | | | (1,513) | | | (1,449) | | | (1,608) | |
| Interest expense | | 252 | | | 17 | | | 17 | | | 18 | | | 52 | | | (2) | | | 90 | | | 37 | |
Income tax benefit | | (6,733) | | | — | | | — | | | — | | | — | | | — | | | — | | | — | |
| Depreciation and amortization | | 6,778 | | | 5,934 | | | 5,856 | | | 5,000 | | | 7,069 | | | 5,127 | | | 8,355 | | | 4,634 | |
| Acquisition costs | | 2,118 | | | — | | | — | | | — | | | — | | | — | | | — | | | — | |
| One-time costs related to IPO | | 910 | | | 81 | | | — | | | — | | | — | | | — | | | — | | | — | |
Settlements, net of related legal expenses | | (2,055) | | | 494 | | | 182 | | | 75 | | | — | | | — | | | — | | | — | |
| Stock-based compensation | | 1,143 | | | 1,317 | | | 1,000 | | | 830 | | | 721 | | | 722 | | | 720 | | | 721 | |
| Change in fair value of warrant liabilities | | 847 | | | 886 | | | 116 | | | 421 | | | 200 | | | — | | | — | | | — | |
Adjusted EBITDA | | $ | 3,530 | | | $ | 9,557 | | | $ | 7,834 | | | $ | 3,847 | | | $ | 7,742 | | | $ | (4,856) | | | $ | (9,733) | | | $ | 497 | |
Off-Balance Sheet Arrangements
As of December 31, 2025, we did not have any off-balance sheet arrangements as defined in Item 303(a)(4)(ii) of Regulation S-K.
Critical Accounting Policies
Our consolidated financial statements have been prepared in accordance with GAAP. Preparation of the financial statements requires management to make judgments, estimates, and assumptions that impact the reported amount of net sales and expenses, assets and liabilities, and the disclosure of contingent assets and liabilities. We consider an accounting judgment, estimate, or assumption to be critical when the estimate or assumption is complex in nature or requires a high degree of judgment and the use of different judgments, estimates, and assumptions could have a material impact on our consolidated financial statements. We periodically review our estimates and make adjustments when facts and circumstances dictate. To the extent that there are material differences between these estimates and actual results, our financial condition or results of operations will be affected.
Business Combinations
We account for business combinations under the acquisition method of accounting. Under this method, acquired assets, including separately identifiable intangible assets, and any assumed liabilities are recorded at their acquisition date estimated fair value. The excess of purchase price over the fair value amounts assigned to the assets acquired and liabilities assumed is recorded as goodwill. When the consideration transferred by us in a business combination includes assets or liabilities resulting from a contingent consideration arrangement, the contingent consideration is measured at its acquisition date fair value and included as part of the consideration transferred in the business combination with subsequent fair value adjustments recorded in results of operations. These fair value determinations require judgment and involve the use of significant estimates and assumptions, including assumptions with respect to the selection of valuation methodologies, estimates of future cash inflows and outflows, discount rates, and selection of comparable companies. During the measurement period, which may be up to one year from the acquisition date, if the initial accounting for a business combination is incomplete, we may record adjustments to the fair value of assets acquired and liabilities assumed, with a corresponding offset to goodwill. Transaction expenses incurred in connection with a business
combination, other than costs associated with the issuance of debt or equity securities, are expensed as incurred. The operating results of acquired businesses are included in our results of operations beginning as of their effective acquisition dates.
Revenue recognition
We generate revenue primarily from contractual arrangements with the U.S. Government, prime contractors, and international customers in the intelligence, defense, maritime awareness, and crisis response sectors. Our sales are derived from a diverse stream of offerings, including mapping products that utilize our proprietary algorithms to analyze and track radio waves, on-demand access to archived data, subscription-based future data services and professional services that leverage our geospatial and intelligence expertise. We also provide engineering services, systems integration and mission support. To a lesser extent, we also partner with resellers, including exclusive resellers, who market our data products to end users, primarily in international locations where we are legally-obligated to work with a local partner.
Revenue is measured as the amount of consideration we expect to receive in exchange for transferring goods or providing services. To the extent a contract includes multiple promised goods and services, we apply judgment to determine whether promised goods and services are capable of being distinct and distinct in the context of the contract. If these criteria are not met, the promised goods and services are accounted for as a combined performance obligation.
Transaction prices include fixed fees, reimbursable costs and variable consideration such as award fees, which are estimated at inception and updated as performance criteria are assessed. If the contract contains a single performance obligation, the entire transaction price is allocated to the single performance obligation. For arrangements with multiple performance obligations, which represent promises within an arrangement that are distinct, we allocate revenue to all distinct performance obligations based on their relative stand-alone selling prices (“SSPs”), unless the transaction price is variable and meets the criteria to be allocated entirely to a performance obligation or to a distinct service that forms part of a single performance obligation.
We typically have more than one SSP for individual products and services due to the stratification of those products and services by customers and circumstances. In these instances, we may use information such as the nature of the customer and distribution channel in determining the SSP. When available, we use observable prices to determine SSPs. When observable prices are not available, we typically determine the SSP using an adjusted market assessment approach using information that may include market conditions and other observable inputs.
We recognize revenue when the performance obligations under the terms of a contract with our customers are satisfied, which is either over time or at a point in time. Contracts include cost-plus-award-fee, cost-plus-fixed-fee, firm-fixed-price, time-and-materials and cost-reimbursement arrangements. Cost-plus and fixed-fee contracts are recognized using a cost-to-cost percentage-of-completion method; award fees are recognized based on estimated achievement; firm-fixed-price and level-of-effort contracts are recognized using input measures such as labor hours; time-and-materials contracts are recognized under the "right-to-invoice" expedient; and cost-reimbursement contracts are recognized as costs are incurred. Incremental costs of obtaining contracts are immaterial. Costs to fulfill contracts are capitalized when directly related and expected to be recovered; otherwise, they are expensed as incurred. For data subscription arrangements, in which there are repetitive products that are substantially the same from one month to the next, we recognize revenue at the point in time of delivery. Revenue for training and support based on a fixed fee is generally recognized over time using an input method based on total hours incurred over total estimated hours. Professional services are billed on a time plus materials basis and we apply the right to invoice practical expedient for these arrangements. Revenue under resell arrangements is generally recognized net of any reseller discounts, as the products are delivered to the reseller, provided all other revenue recognition criteria are met.
Some of our customer arrangements include the delivery of specific performance obligations and subsequent customer acceptance of project-based deliverables, which may impact the timing of revenue recognition. When the timing of our delivery of products or services is different from the timing of payments made by customers, we recognize either a contract asset (i.e., performance precedes the contractual due date) or a contract liability (i.e., the customer payment precedes performance). Contract assets represent arrangements in which the service or product has been delivered but payment is not yet due. Contract liabilities consist of deferred revenue, which represents customer payments received prior to the completion of performance.
We apply practical expedients permitted under ASC 606, including the right-to-invoice method for certain contracts and exemption from disclosure of unsatisfied performance obligations for contracts with an expected duration of one year or less.
Stock-based compensation
Under the 2015 Plan, our stock incentive plan, we may grant stock options, stock appreciation rights, stock awards, restricted stock units, performance awards or other stock-based awards.
As of December 31, 2025, we have not issued stock awards, performance awards or other stock-based awards. We issued an aggregate of 182,786 restricted stock units in 2025, which units remain outstanding. We issued stock appreciation right awards in 2015. These awards have since converted to common or expired prior to January 1, 2019. As of December 31, 2024 and 2025, there are no outstanding stock appreciation rights.
Our board of directors establishes the term and the vesting of all options issued under the 2015 Plan; however, in no event will the term exceed ten years. We estimate the fair value of each option on the date of the grant using the Black-Scholes option-pricing model in order to measure the compensation cost associated with the award. This model incorporates certain assumptions for inputs including:
•Expected volatility: The expected volatility was determined by examining the historical volatilities of a group of industry peers, as we did not have any trading history for our common stock.
•Expected dividend yield: The expected dividend yield was based on our history and management’s current expectation regarding future dividends.
•Expected option term: For employees, the expected term is determined using the “simplified” method, as prescribed by the SEC’s Staff Accounting Bulletin No. 107, Share-Based Payment, to estimate on a formula basis the expected term of our employee stock options which are considered o have “plain vanilla” characteristics.
•Risk-free interest rate: The risk-free interest rate was based upon quoted market yields for the United States Treasury instruments with terms that were consistent with the expected term of our stock options.
The table below summarizes the assumptions used in the Black-Scholes Option-Pricing Model to estimate the fair value of each stock option award on the grant date.
| | | | | | | | | | | |
| December 31, 2025 | | December 31, 2024 |
Expected volatility | 59.5% to 65.4% | | 54.6% to 64.3% |
Expected dividend yield | — | % | | — | % |
Expected option term (in years) | 5.0 – 6.2 | | 5.0 – 9.9 |
Risk-free interest rate | 3.6% to 4.4% | | 3.5% to 4.7% |
We are required to estimate the fair value of the common stock underlying our equity awards when performing fair value calculations. Due to the absence of a public trading market, the fair value of our common stock underlying our stock-based awards has historically been determined by our Board, with input from management and contemporaneous independent third-party valuations.
To determine the fair value of our common stock, we considered several objective and subjective factors as of each grant date, including:
•our results of operations and financial position, including our levels of available capital resources;
•the valuation of publicly traded companies in the space and data analytics sector;
•the lack of marketability of our common stock;
•the likelihood of achieving a liquidity event for the holders of our common stock, such as an initial public offering or a sale of our company, given prevailing market conditions;
•trends and developments in our industry;
•external market conditions affecting the space and data analytics industry; and
•U.S. and global capital market conditions.
In valuing our common stock, our board of directors has historically determined the fair value of our business using the market approach. The market approach estimates value based on observable market values for similar assets or securities. Sales and offering prices for comparable assets are adjusted to reflect differences between the asset being valued and the comparable assets, such as, location, time and terms of sale, utility, and physical characteristics. The estimated enterprise value is then allocated to our common stock using (i) the option pricing method, with an option term assumption consistent with management’s expected time to a liquidity event and a volatility assumption based on the estimated stock price volatility of a peer group of comparable public companies over a similar term and (ii) the probability weighted expected return method with respect to a scenario in which we completed an initial public offering event.
Fair Value of Warrants
We used a market approach to estimate our enterprise value of and then allocated the enterprise value to the liability-classified warrants using an option-pricing model. We are required to estimate the fair value of the common stock underlying the warrants when performing fair value calculations. See the discussion of stock-based compensation directly above for the board of director’s approach to this valuation. The significant unobservable inputs used in the valuation model to measure the warrant liability
that is categorized within Level 3 of the fair value hierarchy as of December 31, 2024 and 2025, are as follows:
| | | | | | | | | | | | | | |
| | At-the-Money Warrant Liability |
| | December 31, |
Assumption | | 2025 | | 2024 |
Stock price | | $ | 11.40 | | | $ | 3.02 | |
Strike price | | $ | 11.20 | | | $ | 11.20 | |
Volatility (annual) | | 59.5 | % | | 54.9 | % |
Risk-free rate | | 4.0 | % | | 4.6 | % |
Estimated time to expiration (years) | | 7.5 | | 2 |
Dividend yield | | — | % | | — | % |
| |
| | |
| | Bank Warrant Liability |
| | December 31, |
Assumption | | 2025 | | 2024 |
Stock price | | $ | 11.40 | | | $ | 3.02 | |
Strike price | | $2.30 – 4.70 | | $ | 2.30 | |
Volatility (annual) | | 56.8 – 58.8% | | 82.5 | % |
Risk-free rate | | 4.0 – 4.2% | | 4.2 | % |
Estimated time to expiration (years) | | 8.2 – 10 | | 10 |
Dividend yield | | — | % | | — | % |
Recently Issued and Adopted Accounting Standards
Recently issued and adopted accounting pronouncements are described in Note 2 to our audited consolidated financial statements included elsewhere in this prospectus.
Emerging Growth Company Accounting Election
We are an “emerging growth company” under the JOBS Act, which permits us to take advantage of an extended transition period to comply with new or revised accounting standards applicable to public companies. We have elected to use this extended transition period until we are no longer an emerging growth company or until we affirmatively and irrevocably opt out of the extended transition period. As a result, our consolidated financial statements may not be comparable to companies that comply with new or revised accounting pronouncements applicable to public companies.
Quantitative and Qualitative Disclosures About Market Risk
We are exposed to market risks in the ordinary course of our business, which primarily relate to interest rate risk, credit risk, and inflation risk.
Interest Rate Risk
We had cash and cash equivalents of $92.7 million and $67.2 million as of December 31, 2025 and 2024, respectively. Our cash and cash equivalents consist of cash in bank accounts, money market accounts, and other highly liquid investments with original maturities of three months or less from the date of purchase. Marketable securities consist of U.S. treasuries. Our investment policy and strategy are focused on the preservation of capital and supporting our liquidity requirements. We do not enter into investments for trading or speculative purposes. Due to the relatively short-term nature of our investment portfolio, a hypothetical 10% change in interest rates would not have a material effect on the fair value of our portfolio or our consolidated financial statements for the periods presented.
We have outstanding variable-rate debt totaling $48.6 million as of December 31, 2025. A hypothetical 100-basis point change in interest rates would change interest expense by approximately $0.5 million.
Credit Risk
Credit risk arises primarily from receivables from our customers. We have a concentration of contractual revenue arrangements with governmental agencies and nongovernmental entities. Credit risk is managed through ongoing credit evaluations of our customers’ financial condition, taking into account the financial condition, current economic trends, analysis of historical bad debts, and aging of accounts receivables. The maximum exposure to credit risk at the reporting date is primarily from accounts receivables (including related party receivables) which amounted to $53.3 million and $11.7 million as of December 31, 2025 and 2024, respectively.
Financial instruments which potentially subject us to concentrations of credit risk consist of cash and cash equivalents, restricted cash, investments, and trade receivables. At times, such cash may be in excess of the FDIC limit. As of December 31, 2025, we had cash in excess of the $250 thousand federally insured limit. We believe we are not exposed to any significant credit risk on cash and cash equivalents as our cash and cash equivalents are placed with high-credit quality financial institutions and issuers. To date, we have not experienced any credit loss relating to our cash and cash equivalents.
Inflation Risk
We do not believe that inflation has had a material effect on our business, results of operations, or financial condition. If our costs were to become subject to significant inflationary pressures, we may not be able to fully offset such higher costs through price increases. Our inability or failure to do so could harm our business, financial condition, or results of operations.
BUSINESS
Our Company
Our Mission
HawkEye 360 is a trusted SIGINT partner of the United States and its allies, committed to advancing national interests through the use of our innovative technology. Our mission is to provide actionable, trusted, and valuable signals intelligence to the U.S. Government and allied customers.
•We make the world safer and more secure by providing mission-critical capabilities for defense and intelligence applications.
•We identify and comprehend highly complex signals intelligence.
•We apply our technology advantage to protect, preserve, and defend the national interests of the United States and its allies.
Our values are deeply embedded in service and leadership, guiding our efforts to support critical intelligence, defense, and security initiatives across the world. We are privileged to serve our nation, our allies, and our shared humanity.
Who We Are
HawkEye 360 provides secure end-to-end signals solutions which are tightly integrated into the fabric of national security architectures. As a trusted signals intelligence partner to the U.S. Government and its allies, we are the first commercial space-enabled defense technology company to disrupt electronic warfare at scale. We deliver shareable, battlefield-proven RF intelligence that supports Warfighters during varied cycles of geopolitical volatility. We operate across the entire value chain from design and build, to data collection, to processing and analysis, delivering capabilities and insights to customers throughout our global allied defense landscape.
Where We Started
HawkEye 360 was founded in 2015 by a team of military veterans, engineers, and national security technologists. From our beginning, we have disrupted the SIGINT market that had historically been served by traditional defense providers. We identified a critical gap in unclassified RF signals intelligence across the U.S. Government and allied nations. We then developed advanced processing capabilities and an extensive space-based RF database to deliver actionable SIGINT insights to address this gap. RF signals intelligence had historically been limited to state actors until we built upon the structural tailwinds of more accessible satellite launch, satellite miniaturization, and cloud computing power to create an end-to-end unclassified analytics capability. We created a proprietary data collection system leveraging small-satellite technology to provide unprecedented commercial access to RF signal data from on-orbit sensors, delivering a new form of unclassified intelligence that was previously unavailable. In parallel, we built a signals processing platform with proprietary algorithms using our unclassified collected data to power our differentiated processing and analytics capabilities. We are continuously evolving and adding disruptive, new capabilities – through launching additional satellites, developing new and increasingly sophisticated sensors, expanding our RF emitter database, optimizing our analytics and insights, and perfecting increasingly mission-specific algorithms in our constant effort to provide the most possible value to our customers.
ISA Acquisition
In December 2025, we completed our acquisition of ISA. This acquisition enhances our existing offerings by providing critical signal processing technologies, including detection and classification across multiple domains, such as air, land, and maritime domains, while gaining access to classified architecture, thereby strengthening our relationship with the U.S. Government and the U.S. intelligence community.
This acquisition allows us to combine our unclassified satellite collectors with highly trusted classified algorithms, unlocking a larger national security augmentation market. Additionally, unclassified ISA algorithms and expertise enhance our signal processing platform, allowing us to offer improved, automated capabilities to an expanded set of U.S. Government and international customers.
HawkEye 360 Today
We are disrupting the defense technology industry through our transformational strategy focused on new on-orbit capabilities, signal processing enhancements, and optimization of our AI/ML analytics algorithms using our expansive RF emitter database. Our algorithms are designed, improved, and validated on over one billion data points from our proprietary signals archive, uniquely collected by our sensor network. With over 30 satellites on orbit and additional clusters in development, we maintain a robust global operational footprint and are committed to expanding our reach, improving our revisit rate and latency, and accelerating product delivery to our customers. We are a key provider to the U.S. Government of signal processing algorithms, customized hardware and commercial SIGINT data and information. We operate across classified and unclassified data, leveraging relationships with the DoW and the U.S. intelligence community and the international equivalents of our allies around the globe.
Our Total Addressable Market
Our TAM today consists of the global RF spectrum exploitation market. We estimate that this TAM represents an approximately $24 billion opportunity as of October 2025, according to a study we commissioned by Renaissance Strategic Advisors (the “Renaissance Study”). This market encompasses collection systems and associated processing and analysis services. This includes sensors, payloads, algorithms, and services that support data collection. We expect our TAM to reach approximately $34 billion by 2030, driven by the expansion in the number of sensors across domains, growth in support services, and increasing government demand for contractor-sourced RF data. Our TAM is comprised of U.S. and allied international government markets and does not yet include commercial opportunities. Our business has significant product offerings for selling to these customers. We are scaling our capabilities to capture a larger share of this rapidly growing market.
The Problem We Address
We operate in an unprecedented and increasingly unstable environment that demands an active intelligence and defense posture. Even during periods of peace, the need for ongoing surveillance of borders, maritime environments, and the aerial domain, as well as ensuring compliance with treaty provisions, drives strong demand growth for our offerings. Our customers face ongoing adversarial threats in active conflicts and require real-time situational awareness across the signal spectrum. Customers increasingly demand rapid, actionable data, edge autonomy, and cost-effective mission solutions. Traditional defense contractors have been unable to meet these rapidly evolving technological needs. Meanwhile, governments are accelerating investment in defense capabilities to address geopolitical uncertainty and to satisfy ever growing needs for valuable and timely intelligence. As a result, the defense and intelligence communities are increasingly turning to commercial vendors such as HawkEye 360 to fulfill these needs.
What We Do
HawkEye 360 delivers a variety of tailored SIGINT capabilities across the value chain with direct integration into national security architectures for U.S. and allied governments. We developed a fully integrated RF data platform encompassing collection, end-to-end signal processing, signals library, and proprietary analytics. Our data and unclassified algorithms flow into U.S. and allied collection systems, while our classified algorithms are trusted and integrated within many U.S. SIGINT programs. As a result, we believe we are indispensable to national security architectures across the value chain. Through our partnerships, we bring decades of DoW relationships and multi-domain expertise across space, airborne, maritime, and terrestrial systems.
We are trusted to deliver mission-ready capabilities and insights to support strategic decision-making, situational awareness, and operational effectiveness across a wide range of mission needs. We fill intelligence gaps for our customers while building out their national SIGINT capabilities through training, analytics, dedicated hardware development, and customized intelligence platforms. Examples of these solutions include:
•Customized SIGINT solutions including hardware, algorithms, and software capabilities;
•Monitoring maritime activity in a customer’s regional domain;
•Tracking military radar and air defense systems;
•Tracking extremist group communications, movement, and activity;
•Maintaining border security and providing tactical ISR on battlefield environments;
•Ensuring navigational integrity of GNSS; and
•Core signal processing algorithms used in national government SIGINT systems.
Our offerings range from operational deployment in Ukraine to GPS disruption monitoring in the Middle East and integration within critical classified U.S. Government processing chains. Our acquisition of ISA further enhances these offerings through critical signal processing technologies, including detection and classification across multiple domains, expanded ground processing, and trusted classified and unclassified algorithm expertise, strengthening our ability to deliver integrated SIGINT solutions across both classified and unclassified environments. These solutions are deployed in high-stakes environments where mission success, precision, technical excellence, reliability, and intelligence superiority are paramount to our customers.
Our Technology Advantage
Our vertically integrated technology stack powers the HawkEye 360 signal processing ecosystem, enabling continuous evolution and transformation to meet emerging defense and intelligence needs. We refer to this technology as the HawkEye 360 Signal Processing Platform, which can ingest data from multiple collectors, route to the appropriate foundational signal processing algorithms, and fold in high-order analytics functions per customer demand.
•Collection: We design, manufacture, own, and operate a global constellation of over 30 satellites that collect data in proprietary formations of three satellites, with broad coverage from 30 MHz to 18 GHz and a revisit rate of less than 45 minutes globally.
•End-to-End Signal Processing: We use proprietary signal processing algorithms to detect and characterize a wide set of emitter types, including radars, jammers, beacons, and mobile radio devices. Our algorithms are used to process classified data for the U.S. Government, and separately, unclassified data within our own system. Our advantage comes from our processing and geolocation intellectual property and our unique data platform, as well as decades of operating within U.S. Government systems.
•Proprietary Analytics and Insights: Our analytics and insights capabilities operate on the outputs of our signals processing algorithms. We employ our proprietary AI-enabled algorithms to identify, track, analyze, and predict specific emitters, converting data into insights for our intelligence partners. Our insights identify patterns of life, classify and identify emitters, predict activity, detect threats, and enhance situational awareness. Our unclassified data analysis promotes greater accessibility for the United States and its allies, while our classified capabilities serve to further entrench us with our intelligence customers.
Our First-Mover Advantage
The HawkEye 360 Signal Processing Platform is built on highly complex proprietary signals algorithms, designed by signal processing experts, supported by our constellation of over 30 satellites on orbit, and developed on more than a decade of R&D and capital investment. As a result, we believe our platform has collection scale, latency, geolocation accuracy, revisit rates, and technical optimization that would take years for a competitor to replicate.
Furthermore, our RF emitter database and collection data archive are built on years of contested-environment data collection and a mature processing pipeline, making it difficult for a competitor to replicate our data advantage. This data and technology feeds into our AI/ML models to create unique emitter identification, pattern of life analysis, and other insights. We believe our strength in this area, combined with our ability to fuse data from multiple sources and platforms, makes us less vulnerable to becoming commoditized, especially in comparison to other space-based intelligence collecting satellite constellations, such as electro-optical and synthetic aperture radar imagery. In addition, we are vertically integrated in our customers’ value chains, allowing us to serve customers across all their needs (e.g., specialized algorithm development or end-product analyses).
Operationally, we have recruited engineers with prior experience in premier government and defense industrial base signal processing environments, and nearly half of our personnel hold security clearances. We deploy our own capital at risk, and our nimble business model allows us to move quickly, building out capacity ahead of customer demand. We have been purpose built from inception to serve the U.S. Government and its allies, with whom we have built trusted relationships over the past decade. As a result, we have built sales infrastructure, product orientation, and program management support to serve our customers.
Serving Our Customers
We serve the world’s most demanding customers, addressing their highest-priority defense needs with precision, trustworthiness, and agility. Our customers are a diverse mix of U.S. Government defense, intelligence, and national security agencies, as well as allied international governments. For the year ended December 31, 2025, our U.S. customers, which are predominantly U.S. Government entities, accounted for 61% of our revenue, while our customers in Japan accounted for 16% of our revenue and our other non-U.S. customers, in the aggregate, accounted for 23% of our revenue. We also engage in selective minor commercial applications focused on maritime safety, security, and communications regulations compliance, although we have specifically chosen to focus initially on government centric customers and missions. Our unclassified and shareable data model enables extended use cases for end customers, enhancing interoperability and mission effectiveness.
Financial Highlights
We have demonstrated strong financial performance and scalable growth. We are focused on profitability, productivity, and return on invested capital. Our funded backlog of $302.7 million as of December 31, 2025 supports predictable revenue expansion through a recurring model. Our net income was $2.7 million and our adjusted EBITDA was $24.8 million for the year ended December 31, 2025.
We intend to continue enhancing our margins and capital efficiency. Data reusability, multi-signal capabilities, and diversification of our product offerings allow us to improve our margins by leveraging our existing fixed cost base for greater output. We make strategic investments in R&D, engineering talent, satellite infrastructure, and future capacity, investing in new capabilities while optimizing our current offerings. As the business scales, our existing fixed costs and capital investments support greater revenue generation.
Our Market Opportunity
We operate primarily in the defense technology market. Increasing global tensions and geopolitical uncertainty have heightened demand for advanced technologies to counter near-peer and asymmetric threats. In the United States, bipartisan support for robust defense spending remains evident, together with a clear policy emphasis on leveraging commercial technologies, with the DoW budget expected to reach approximately $960 billion in fiscal year 2026, compared to approximately $860 billion in fiscal year 2025, according to the Office of the Under Secretary of Defense. This shift toward defense technology is structural in both peacetime and conflict, as reliable intelligence is mission-critical for monitoring ceasefires and enforcing compliance with international law.
Outside the United States, governments are also investing heavily in sovereign defense capabilities to address regional threats, with Europe and APAC leading growth. Following an extended period of underinvestment, European NATO defense budgets increased from $279 billion in 2019 to $564 billion in 2025, representing a CAGR of over 10%. Growth in European NATO defense spending is expected to continue, underpinned by the recent commitment of NATO members to spend 5% of GDP on defense, a significant increase from the average European defense spending level of 2% of GDP over the last three years. In response to military encroachment from China, defense spending by U.S. allies in APAC rose from $255 billion to over $307 billion during the same period.
Historical Applications of RF
RF has a long legacy in modern warfare, evolving from a basic communication platform to a critical enabler of sensing, navigation, intelligence, and coordination on the battlefield. Early examples include utilization of radio in World War II mechanized mobile divisions and radar systems that helped secure air superiority. Later in the century, GPS revolutionized maneuverability and targeting as exemplified in the First Gulf War, while airborne RF jammers tracked and disabled adversary radars. Today, massive amounts of battlefield data are available, creating the need for seamless coordination across ground/naval/aerial/space forces, drones, and platforms. As a result, RF is more integral than ever. RF sensing provides persistent, wide-area coverage that remains effective in conditions where optical sensors often fail, including mountainous terrain, poor weather, and darkness. RF signals are more difficult to mask, and serve as the best proxy for human activity, applicable beyond defense applications, including for economic activity, law enforcement, and sustainability applications, such as identifying illegal fishing or illicit mining. RF enables sensing, positioning, navigation, and timing, dramatically increasing the volume and precision of defense intelligence.
RF Utilization Across Domains
Today, global government spectrum exploitation is split among four domains – terrestrial, maritime, air and space. Recent initiatives, such as the Golden Dome, aim to create a next-generation, layered missile defense shield for the U.S. homeland, integrating all four domain systems into a unified architecture at an estimated cost of up to $3.6 trillion over its lifetime. Current global spending in the terrestrial domain remains the largest portion of global spending, totaling $8.9 billion from January 2025 to October 2025, according to the Renaissance Study, driven by the need to monitor continental activity. Global spending in the maritime domain was $1.5 billion from January 2025 to October 2025, according to the Renaissance Study, to effectuate the need to locate vessels in the wide ocean expanse and conduct signals intelligence offshore. Global spending in the air domain was $6.6 billion from January 2025 to October 2025, according to the Renaissance Study, primarily for intelligence collection in international airspace.
Space is widely regarded by national security experts as the most essential warfighting domain in modern warfare, with the United States framing orbital supremacy as a geopolitical imperative. Utilizing this critical domain requires space-based RF expertise to ensure the detection, characterization, and geolocation of RF emissions globally. The RF space domain ascends beyond the ground, maritime, and air domains to deliver a persistent global vantage point accessed on orbit far above national borders and
territorial airspace and waters, unlocking capabilities that redefine defense intelligence. Space-based RF delivers resilient, wide-area global coverage at scale, enabling missile launch detection, air defense mapping, and orbital object tracking with insulation from adversarial threats. In an era of electronic warfare and contested environments, resilience, and precision are mission critical. As space infrastructure continues to expand, it naturally enables economies of scale. From January 2025 to October 2025, government spending on spectrum exploitation in the space domain has surged to $7.3 billion, according to the Renaissance Study.
Today’s Strategic Necessity for SIGINT
Geopolitical volatility and electronic warfare trends such as drone proliferation, widespread jamming, spoofing, and GPS interference are driving urgent demand for advanced RF intelligence and space-based SIGINT capabilities. Assured ability to communicate and synchronize people, sensors, and strategies across domains is critical. Drone proliferation amplifies the need for robust command and control, spanning secure communications, real-time data sharing, and decision-making to ensure forces can act cohesively across domains. Preserving this command-and-control advantage requires maintaining access to and denying adversaries use of the electromagnetic spectrum.
U.S. Government agencies and combatant commands are already procuring commercial solutions, while international interest is accelerating across NATO, Eastern Europe, the Middle East, and the Indo-Pacific. Recent U.S. bipartisan policy actions signal a transformative moment for defense technology such as the SPEED Act and the FoRGED Act, which incentivize rapid integration of commercial innovations into national security programs. These measures prioritize commercial partnerships, reduce procurement friction, and unlock new funding pathways for defense technology companies, positioning the sector for accelerated growth.
Furthermore, many allies lack sovereign SIGINT capacity and require training, embedded support, and interoperable data frameworks. This demand spans direct data sales, sovereign or hybrid assets, and on-site exploitation support, reinforced by licensing models that enable lawful multi-nation sharing and monetization. We enable commercial entities to provide these services faster and to deploy new technologies quicker to allow customers to receive SIGINT capabilities rapidly. SIGINT adoption is mission critical in the face of rising adversarial threats, illegal maritime operations, and transnational crime.
Disruption of Legacy Models
Amid this procurement shift, legacy models are failing to keep pace with the realities of the modern battlefield. Traditional providers have been structured to develop and build large platforms (e.g., ships, aircraft, and tanks) over decades, but are challenged to accelerate development, scale up production, or release complex AI-enabled software at commercial industry and battlefield timelines. The DoW has acknowledged that the traditional contracting model must adapt as the new battlefield reality evolves continuously. Defense tech disruptors prioritize mission outcomes through rapid iteration and adaptability, delivering field-ready solutions quickly. Unlike traditional contractors with long project timelines, and more cost effective than traditional defense industrial base entities, we move at the speed of the Warfighter – we commit capital and resources well in advance of user need and acquisition contracts, thereby enabling rapid response to operational changes.
Our Total Addressable Market
Our TAM today consists of the global RF spectrum exploitation market. We estimate that this TAM represents an approximately $24 billion opportunity as of October 2025, according to the Renaissance Study. This market encompasses collection systems and associated processing and analysis services. This includes sensors, payloads, algorithms, and services that support data collection. As global governments’ demand grows, we are scaling alongside their needs, helping expand the overall market and capturing a greater market share. We expect our TAM to reach approximately $34 billion by 2030,
driven by the expansion in the number of sensors across domains, growth in support services and increasing government demand for contractor-sourced RF data.
Historically, the collection systems accounted for 37% of the market as of October 2025 according to the Renaissance Study. However, we expect the shift to space-based RF to fundamentally disrupt the previous customer purchase structure. As the space domain becomes increasingly critical to the United States and its allies, we see an opportunity for more customers to shift from hardware systems procurement to Data-as-a-Service, since LEO satellites have advantages in shareability, cost-effectiveness, speed to the Warfighter, customization, and global footprint unlike a localized drone or ship. Because a country’s own sovereign hardware system spends most of its time over other geographies, owning such a system is less appealing – making data purchases a more attractive option. We recognize that increased capture of this market will require continued investment in highly skilled personnel and software development. Our strategy is to dramatically scale RF data collection while continuously evolving our sensor network to meet growing customer demand.
Our Technology Advantage
Our vertically integrated technology stack powers the HawkEye 360 signal processing ecosystem, enabling continuous evolution and transformation to meet emerging defense and intelligence needs. Our capabilities allow us to dive deeper into the value chain where most other platforms are restricted through technical limitations. Additionally, our global coverage allows us to receive situational awareness over larger areas in a more cost-effective and time-sensitive manner than static sensors. Finally, our USR, with its ability to identify and track specific emitter types, delivers considerable military value and continues to improve as our signal library expands.
Our Vertically Integrated Technology Stack
Collection
We design, manufacture, own, and operate a global constellation of over 30 satellites that collect RF data in formations of three, with fully reconfigurable software defined radar providing broad SIGINT coverage from 30 MHz to 18 GHz with a revisit rate of less than 45 minutes. The satellite’s broad beam allows us to cover more than one million square kilometers of the Earth in a single pass. We have deep expertise in designing and deploying highly capable and maneuverable small form factor payloads that integrate seamlessly onto commercial and national satellites. These payloads combine proprietary algorithms with advanced hardware – antennas and software-defined radios – creating a unique blend
that delivers differentiated performance. This proven capability extends beyond our own constellation, enabling flexible deployment across multiple platforms and mission environments depending upon customer needs and the availability of other hosting platforms. Alternatives to our satellites are either highly classified or currently do not exist for most international customers lacking space capabilities. Additionally, our broad coverage provides an advantage over more limited terrestrial collection capabilities.
Evolution of Our Satellites Types
End-to-End Signal Processing
HawkEye 360 operates on RF signals. Unlike imagery, the RF data form is unintelligible to humans, and requires custom algorithms to convert raw data into understandable featured and actionable intelligence – “unlocking” RF signals insights using our platform. These algorithms require a deep understanding of physics, RF characteristics of emitters and receivers, and deep knowledge of the modulation, waveforms, and emissions pulses, among many technical factors. We have developed a unique set of signal processing algorithms that allow us to detect, geolocate, and characterize a wide set of emitter types, including radars, GPS jammers, and mobile radio devices and tagging, tracking, and locating beacons (TTL). Our algorithms have several decades of operational history embedded within the U.S. Government’s SIGINT architecture. In addition to the algorithms, our processing advantage comes from our unclassified data archive of five years of collections, allowing us to mine this data to improve the algorithms. The archive has enabled us to build a proprietary unclassified emitter database to help identify signals. Our algorithms are built on the data collected from our constellation but are extensible to all domains – we are the only ones able to access this data and therefore the only ones able to interpret it. As a result, we deliver exceptional performance in signal detection, latency reduction, and scalability with clear market leadership.
Signals Process & Analytics Chain
Proprietary Analytics and Insights
Our analytics and insights capabilities operate on the outputs (i.e. features) of our signals processing algorithms. We employ our proprietary AI-enabled algorithms to identify, track, analyze, and predict patterns of behaviors for specific emitters, converting data into valuable and timely insights for Warfighters, intelligence analysts, and decision makers. We use our analytics capabilities as well as third party data (e.g. AIS transponders, imagery) to package these insights into a wide range of end products. In an age where governments and Warfighters have access to a tremendous volume of data, our analytics enable our customers to sort through this volume more swiftly and arrive at key insights for their missions. We can identify patterns of life and predict activity, detect threats, and enhance situational awareness. Our unclassified data analysis promotes greater accessibility for the United States and its allies compared to traditional government systems, while our classified capabilities serve to further entrench us with Warfighters, intelligence analysts, and decision makers.
Our AI-enabled algorithms are proprietary to us and are internally developed. We develop these AI-enabled algorithms by leveraging our unique signals archive of years of global collection data to train our in-house machine learning models. As part of a standard quality assurance and quality control review of new algorithms, we validate their overall function by comparing a selection of outputs to other sources of information (such as satellite imagery or AIS transponder data). Our AI-enabled algorithms rely on machine learning models, rather than large language models that may experience algorithmic hallucinations.
Our Offerings
Our offerings span the SIGINT value chain, comprising hardware and software solutions, comprehensive training programs, data products, embedded analysts for spectrum exploitation, and extensive data products. Our offerings solve a breadth of mission requirements, including mission-critical defense and intelligence applications, humanitarian-oriented solutions, and sustainability-focused capabilities. Currently, a significant portion of our revenue derives from data and analytics that provide intelligence across the following applications:
Maritime Intelligence
Our maritime intelligence capabilities deliver comprehensive situational awareness across the global maritime domain without forward deployment. We detect, geolocate, identify, classify, and track vessels of
all types, from commercial ships to sanctioned, suspicious, or nefarious actors who “spoof” or silence their identification transponders. By leveraging our proprietary algorithms integrated with third-party AIS and imagery, we provide high-confidence vessel identification and advanced analytics, such as movement tracking and velocity estimates. These capabilities enable actionable insights for mission-critical maritime security and law enforcement operations.
Maritime Domain Awareness in the South China Sea
HawkEye 360 has unique ability to track all types of maritime vessels
including those which obfuscate their location
Military Radar Monitoring
We are one of the few sources of unclassified data that provides advanced military radar monitoring capabilities, enabling autonomous detection, characterization, and identification of air defense systems. Global allied nations use our platform to monitor near-peer threats via analytics that identify specific radars, track their location and movements, distinguish radar operating modes, analyze operational patterns of life, and predict and track potential threats.
GNSS Jamming Detection
We deliver advanced GNSS jamming and spoofing detection across L1, L2, and L5 bands to ensure situational awareness and secure, uninterrupted operations in contested GPS environments. We can detect and pinpoint the source of GNSS jamming, a differentiator from peers in the market. Military operations routinely face contested GPS environments, where GNSS jamming and spoofing detection ensure situational awareness and secure operations. Our algorithms identify and characterize interference sources by detecting unauthorized transmissions within relevant frequency bands. Our tri-satellite clusters enable accurate source geolocation of GPS interference across complex terrain and identify the nature of disruption. Further, the existence of GNSS jamming can be an indicator of the
nearby presence of HVTs which can be thwarted by long range targeting through our RF data combined with other complementary sources of intelligence.
Iranian GPS Disruption
Evidence of Jamming and GPS spoofing is rampant in the Arabian Gulf;
HawkEye 360 is uniquely positioned to geolocate the source
Communications Mapping
We deliver critical situational awareness in remote, contested, or difficult-to-patrol regions by illuminating patterns of radio activity commonly used by criminal networks, violent organizations, border-crossing groups, and illicit poaching operations through detecting, geolocating, and mapping networks of non-encrypted military radio systems utilized by generally unsophisticated battlefield actors. By detecting, locating, and analyzing the behavior of PTT, DMR, and SATCOM devices – tools often relied upon when terrain or distance limit other technologies – we help governments understand how nefarious actors coordinate and move. Our analytics map out the structure of these radio networks, showing how devices associate, groups organize, and activity flows across channels, with technical and legal access to the demodulated signals. This enables actionable insights into group linkages, roles, and operational patterns essential for effective interdiction and order-of-battle development.
Spectrum Exploitation
We provide unique access to raw, unprocessed RF signal data collection and delivery, enabling customers to perform deep technical analysis of the spectrum and associated signals. This capability
supports highly sensitive missions where customers apply their own proprietary processing algorithms, delivering flexibility for advanced exploitation and specialized operational requirements.
Solving NOAA's GOES-R Satellite Interference
In December 2024, interference disrupted one of the data reception channels used by weather
forecasting satellites that support flood monitoring, tsunami warnings, and scientific sensors. NOAA
engaged HawkEye 360 to identify and geolocate the source of the interference and were subsequently
able to restore normal data reception
Custom SIGINT Solutions
We provide custom SIGINT solutions for the U.S. Government, built for real-time collection and processing in the most demanding environments, powering and deeply integrated into the most critical national capabilities across space and other domains. Combining proven commercial hardware with proprietary FPGA accelerated systems and mission-specific algorithms, we deliver ultra-low latency, wideband signal processing with rapid adaptability and customization. The tailored SIGINT solutions we offer to the U.S. Government reduce cost, accelerate deployment, and ensure lifecycle maintainability. By tailoring waveform signal processing and exploitation tools to each mission, we deliver scalable, intuitive platforms that are deployed into the government collection, ground processing, and tactical edge systems.
Our Customers
We serve the world’s most demanding Warfighters, intelligence analysts, and decision makers, addressing their highest-priority defense needs with precision and agility. Our diverse mix of customers, ranging from U.S. Government defense, intelligence, and national security agencies to allied international governments, create a business model with limited customer concentration and broad applicability across use cases. Furthermore, we maintain deep relationships with government agencies, a strong understanding of government procurement processes, and prioritize international customers with strong demand, clear mission fit, and large budgets. Many of our international customers do not have their own organic space-based SIGINT capabilities, which enables us to build longer-term contracted sovereign space capabilities for our allied partners. We also engage in selective minor commercial applications
focused on maritime safety, security, and communications regulations compliance, and intend to scale into broader commercial applications.
To date, the majority of our data and insights delivery has occurred through customer-tasked signal collection and analytics. A portion of our revenue also comes from selling subscriptions to data in areas of interest (for example, data relating to vessels operating in the South China Sea). These subscriptions are HawkEye 360-tasked collections that are sold to multiple subscribed customers, allowing us to improve the product features, offer better customer pricing, and increase our margins. As a result of our broad collection capabilities, each collection produces multiple outputs that can be sold to multiple customers. We can perform prescribed analytics and gather insights for different customers on a singular set of data.
Our Competitive Strengths
Scalable Hardware and Rapid Data Delivery
Our deployed constellation of more than 30 satellites – built on more than a decade of R&D and five years of continuous learning and iterative design – delivers global coverage with revisit rates of approximately 45 minutes. We have prioritized a culture of continuous improvement, expanding the capabilities of each iterative satellite cluster while identifying and implementing initiatives that reduce costs of the constellation and envisioning long-term development efforts that can revolutionize our collection and processing architectures. Equipped with advanced sensors spanning tens of GHz, our system provides robust detection, geolocation, and characterization of diverse emitters in real-world noise and interference impacted environments. Our technical expertise in miniaturizing payloads and enhancing satellite capability was developed through years of experience and substantial company intellectual property. This has resulted in over a dozen successfully deployed satellite clusters, a strong strategic advantage to be further expanded as launch and satellite costs decrease.
Unique Technology Stack and Proprietary Signals Processing Platform
While we believe our constellation provides a sustainable advantage versus the competition, it is not, by itself, sufficient to drive our success. Our greatest advantage and area of intellectual property lies in our processing and analytics software platform that exploits our data. Built on five years of proprietary data collection, contested environment testing, and iterative refinement, the HawkEye 360 Signal Processing Platform incorporates our growing unclassified emitter database that enables identification of emitter types and unique signal recognition to identify individual vessels and emitters. Our analytics layer transforms processed data into actionable, differentiated insights for defense, intelligence, humanitarian, and sustainability missions. Fully vetted for operations within classified enclaves, the HawkEye 360 Signal Processing Platform expands intelligence reach and Warfighter awareness. By housing all capability within a unified platform, as opposed to a scattered data and code base, we can rapidly field new capabilities and customer asks.
Our algorithms require a deep understanding of physics, electromagnetics, and applied mathematics – fields where there is a limited pool of talent. We have built a team that combines academic rigor with decades of operational experience to deliver unique solutions, and nearly half of which hold security clearances. Extensive satellite RF data remains a highly protected resource outside national systems, and replicating this capability would demand access to expertise, years of contested environment data collection, and a mature processing pipeline integrated with hardware. In this market, even small algorithmic and data gains drive outsized operational impact, making our intellectual property rare and defensible and our products exceptionally valuable.
Comprehensive Product Portfolio and Flexible Service Model
We have invested significant resources to build a highly capable end-to-end operating model. This includes designing, testing, and building payloads and satellites, as well as owning and operating satellite constellations, processing, analyzing, and productizing the data, and deploying custom capabilities into U.S. Government SIGINT systems. Our model enables us to serve customers across the value chain and
meet them where their needs are. This vertical integration allows us to run our system at scale and capture network effects, such as rapidly tailoring algorithms based on new signal knowledge, modifying satellite payloads to better detect new emitters, or leveraging our scale of collected data to identify new signals and further improve our products. Our nimble business model allows us to move quickly, building out capacity ahead of customer demand while controlling risk through our deep understanding of customers’ needs and operating environments.
We promote flexibility throughout our platform, engaging customers through various capacities to execute their respective missions. For those customers requiring extensive support, we provide engineers and solutions architects who work directly with customers to design and implement tailored solutions, including capabilities such as IQ dedicated tasking, geolocation, and subscription packages with pricing aligned to mission requirements. For more sophisticated customers, we deliver raw RF data alongside associated processing toolkits and these customers conduct their own analysis. For customers requiring dedicated capacity and clusters, we provide service levels ranging from fixed monitoring to reserved and on-demand tasking. For customers seeking turn-key intelligence estimates and data analytics “answers”, we provide our knowledge-based products offered on a subscription basis and tailored to the customer’s area of interest. Our wide-ranging product portfolio is supported by contractual flexibility and data shareability enabled by EULAs across partner nations to enhance interoperability. Across all tiers, our strength in signal detection, latency reduction, and scalable analytics, combined with the ability to fuse data from multiple sources and platforms, mitigates commoditization risk and delivers differentiated insights.
Trusted Relationships
We are a trusted SIGINT partner for U.S. Government agencies, allied ministries, and international organizations. Intentionally and specifically built to serve the U.S. Government and its allies, we hold the security clearances, cyber posture, contract vehicles, partnering relationships, and export infrastructure to operate at national-security scale. We hold over 200 export licenses — a major barrier to entry for potential competitors — and maintain trusted status with sophisticated customers and partners of national importance. The U.S. Government trusts our algorithms within critical national security systems. These relationships, which include key strategic partners/investors, require considerable time and understanding of government requirements to construct the contract vehicles from which we deliver our capabilities. Our contracts with the government are distinct from traditional government procurement, representing a collaboration between a commercial entity and the government to achieve an optimal outcome for the government and the Warfighter.
On an international basis, both directly and through the U.S. Government, we maintain deep engagement with more than ten international entities and key U.S. defense branches with rapid expansion into new mission areas. Our multi-year international contracts are highly sticky, driven by proven performance, rapid innovation, and a constantly evolving constellation.
Strong Financial Profile with Significant Runway
Our growth model is driven by increased scale, margin improvements, and efficiency. Due to our historical investment in our vertically integrated signals processing platform, we can rapidly scale our products with little incremental cost. As we integrate more data, we unlock multiple monetization points, and continuously enhance our collection, processing, and signals database. Customer demand largely translates directly into profit, without requiring new constellations or more engineers. From the year ended December 31, 2022 to the year ended December 31, 2025, our revenue grew from $30.5 million to $117.7 million, and our net income was $2.7 million and our adjusted EBITDA was $24.8 million for the year ended December 31, 2025, with only modest headcount growth, while signal processing and hardware innovations in our Block 3 satellites have further reduced our capital intensity, in some cases approaching 75% reduction in capital intensity. Our multi-year pipeline visibility and KPIs demonstrate our compounding business model, with increases in backlog, EBITDA growth, and improving Free Cash Flow.
Growing datasets and constant transformative iteration reinforce our lead in a market where high capital requirements and scarce domain talent keep competitors at bay.
Multi-Prong Approach to Reducing Capital Intensity
Our Growth Strategies
We have a robust growth strategy across multiple channels, which we intend to execute through organic efforts, strategic partnerships, and acquisitions for key capabilities.
Enhance RF Capability for Significant Customer Expansion
In the near term, we are focused on expanding market penetration by delivering improved RF intelligence capabilities to existing and new customers.
Our continuous organic and inorganic development strengthens our signals processing platform with advanced algorithm expertise, accelerating signal discovery, and improving analytics to deliver scalable, customized products for our customers. Our recent ISA acquisition provides a general-purpose detection engine capable of identifying and isolating signals without prior knowledge in highly congested RF environments. We believe the upgraded platform will expand what we can detect and monetize, integrate HawkEye 360 data with third-party sources (including national systems, AIS feeds, and optical imagery), and create a unified environment for correlation, geolocation, and USR to detect and characterize previously unknown emitters.
Additionally, we are developing automated analytics software to fuse multiple data streams for real-time alerts, cueing, and mission orchestration, while expanding third-party integrations to deliver richer mission insights and operational advantages to a broader base of U.S. Government customers. Within the U.S. Government, we are actively expanding within multiple intelligence community organizations, serving new departments and teams as we field new capabilities and analytics. Within the DoW, we are moving from multiple small-scale engagements and test-and-evaluation programs to full-scale deployments, creating a substantial growth runway for the capabilities we already deliver. As we demonstrate proven performance, we intend to deepen domestic market penetration and expand to additional DoW customers. Our international growth strategy centers on three layers: selling data, deploying sovereign or hybrid assets, and providing on-site exploitation support. This approach positions us to access the $2 trillion global defense market of U.S. allies and partner nations, which represents two-thirds of our overall TAM. Our proven performance with our international anchor customers in theaters such as the Western Pacific and Eastern Europe supports expansion into new adjacent missions, like blue force tracking, long-range fires support, and space domain awareness. We are transitioning from single-year, limited buys to scaled programs of record that deliver superior data products, platforms, and sovereign systems,
integrating multiple intelligence disciplines into a unified architecture. We are applying this proven service model to target new large customers, with many new potential anchor customers in the pipeline. We intend to offer these partner nations data, analytics, training, embedded personnel, and shareable data structures governed by EULAs. As foreign nations build independent capabilities, they look to HawkEye 360 as a trusted provider.
Improved Latency and Tactical Applications
We intend to transform RF intelligence into a fully automated, globally persistent, real-time capability to better serve the operational mission. By reducing end-to-end latency from hours to minutes – and ultimately to seconds – we intend to enable insights fast enough to support tactical decision-making for missions such as Warfighter support, long-range fires, tactical ISR, and Golden Dome defense systems. These ultra-low-latency capabilities and global persistence will allow direct integration with U.S. Government systems that require rapid response.
Beyond defense, we expect this real-time persistent capability will extend to commercial and security applications, including maritime and border monitoring, enforcement operations, humanitarian, sustainability, and civil uses. Growing international demand for persistent, low-latency RF systems underscores the global relevance of these advancements. Our anticipated architecture leverages multiple paths to reduce latency, including direct downlinks, satellite crosslinks, and onboard processing, to deliver latency measured in seconds, combined with scalability, resiliency, and cost efficiency. This ensures full-spectrum situational awareness for threat anticipation and precision targeting, which would significantly expand our TAM.
To deliver on this vision, we are advancing RF intelligence through our agile constellation and platform enhancements. To significantly increase capacity while improving economics, we are deploying cost-efficient Block 3 satellites that capture about 80% of signals at roughly 75% lower cost, while upgraded Block 4 satellites provide superior precision in location and frequency. Our roadmap focuses on increasing multi-signal collection per satellite cluster pass, improving satellite uptime, and moving more processing into space to reduce downlink bottlenecks. We are also enhancing our tasking capability to initiate collections within minutes when a satellite is overhead, with rapid handoffs for persistent coverage and long-term tipping and cuing with other space-based geospatial assets to create meaningful multi-modal multi-INT products. Additionally, we are leveraging RF payload capabilities to build sensors for the U.S. Government, supporting space architecture modernization, and enabling international partners seeking RF data.
Growing RF Utilization Across Domains
We are expanding beyond data delivery to become a global, multi-domain RF intelligence provider capable of providing collection from geostationary orbit to the terrestrial sensor layer and becoming the leader in commercial RF geolocation, processing, and analysis. Building on our current capabilities spanning space to the Earth’s surface, we are enhancing integration across domains to deliver deeper situational awareness, faster decision cycles, resilience against adversary countermeasures, operational flexibility, and accelerated AI-driven development. Our recent ISA acquisition expanded our multi-domain processing across sources, identification, geolocation, and data retrieval, significantly enhancing our tactical relevance for the Warfighter. In addition to expanding space-based assets through Block 3 satellites, our strategy includes expanding integration with terrestrial sensors, naval drones, and airborne SIGINT platforms. This will allow us to leverage the best-in-kind capabilities from each domain, integrate them into our comprehensive signals processing platform, and deliver fused analytics that better serve customer needs. We aim to partner for the cost-intensive domain sensors / collectors and focus our efforts on the software platform that enables tasking, integration, and delivery.
To meet rising demand for dedicated or sovereign systems, we intend to offer customized satellite clusters and bespoke algorithms for customers requiring unique configurations. These capabilities will be combined with a dedicated capacity business model that enables us to retain ownership and operational
control of the sovereign asset. We expect our model of operating and processing the data from these systems will serve as a demand driver for additional data purchases, generating incremental recurring revenue, and enable end-to-end control, security, and operational independence. We further aim to design specialized RF payloads and hardware integrated directly into national security architectures as our capabilities become increasingly relevant for addressing U.S. Government space-based SIGINT requirements. We expect key features to include low-latency payloads on our satellites, ground stations deployed within customer countries for secure operations, and full capability delivery where tasking and downlink occur entirely within the customer’s region to ensure sovereignty. We intend to engineer each satellite cluster, data product, and analytics task to meet specific mission requirements, reinforcing our role as a trusted partner in building next-generation RF infrastructure.
Mergers and Acquisitions
Acquisitions and strategic partnerships form a core pillar of our growth strategy, enabling us to accelerate capability development and expand our TAM. We target acquisitions that strengthen RF processing, AI/ML analytics, hardware capabilities, multi-domain processing, RF services, and tactical relevance while adding relationships with U.S. Government organizations and mature business systems to support scale. Our criteria focus on companies with compelling margins, profitable operations, defensible IP, strong revenue visibility, complementary mission-first corporate cultures, and clean structures that integrate seamlessly into our business. By vetting dozens of companies to identify a shortlist of high-priority targets, we seek to ensure each acquisition compounds our ability to deliver differentiated insights and maintain leadership in a market with high capital barriers and scarce domain expertise. We have demonstrated a set of business competencies with the acquisition of ISA and, earlier, Aurora, and anticipate further acquisitive growth in the future.
Intellectual Property
Our intellectual property is an important part of our business. We rely on a combination of patents, copyrights, trademarks, and trade secret laws in the United States and other jurisdictions, as well as license agreements, confidentiality procedures, non-disclosure agreements with third parties, and other contractual protections, to establish and protect our proprietary rights, including our proprietary technology, software, know-how, and brand.
We have certain registrations (and applications for registration) for intellectual property rights. As of December 15, 2025, we held 28 U.S. granted patents and five patents granted in various foreign jurisdictions, five patent applications pending in the United States, and 14 patent applications pending in various foreign jurisdictions. Our issued patents as of December 15, 2025 are scheduled to expire on between 2036 and 2043. As of December 15, 2025, we held 12 registered trademarks in the United States and no registered trademarks in various non-U.S. jurisdictions. As of December 15, 2025, we held 16 domain names. The existence of a pending application is not an assurance that it will issue or lead to a registration. We actively monitor our intellectual property portfolio and enforcement strategy to maintain the integrity of our brand and proprietary assets.
Our patent portfolio is detailed in the chart below:
| | | | | | | | | | | | | | | | | | | | | | | |
| Owned / Licensed | Type | Jurisdiction | Title | Application / Publication / Patent No. | Earliest Priority Date | Status | Expected Expiration Date1 |
| Hawkeye 360, Inc. |
| Owned | Utility | Canada | Detecting Radio Signal Emitter Locations | 3067545 3067545 | 6/30/2017 | Granted | 6/6/2038 |
| Owned | Utility | Europe | Detecting Radio Signal Emitter Locations | 18825101.1 3646647 | 6/30/2017 | Granted | 6/6/2038 |
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
| | | | | | | | | | | | | | | | | | | | | | | |
| Owned / Licensed | Type | Jurisdiction | Title | Application / Publication / Patent No. | Earliest Priority Date | Status | Expected Expiration Date1,1 |
| Owned | Utility | France | Detecting Radio Signal Emitter Locations | 18825101.1 3646647 | 6/30/2017 | Granted | 6/6/2038 |
| Owned | Utility | Germany | Detecting Radio Signal Emitter Locations | 18825101.1 3646647 | 6/30/2017 | Granted | 6/6/2038 |
| Owned | Utility | Luxembourg | Detecting Radio Signal Emitter Locations | 18825101.1 3646647 | 6/30/2017 | Granted | 6/6/2038 |
| Owned | Utility | United Kingdom | Detecting Radio Signal Emitter Locations | 18825101.1 3646647 | 6/30/2017 | Granted | 6/6/2038 |
| Owned | Utility | Europe | Detecting Radio Signal Emitter Locations | 22199344.7 4138470 | 6/30/2017 | Granted | 6/6/2038 |
| Owned | Utility | United States | Detecting Radio Signal Emitter Locations | 16/000,934 10,466,336 | 6/30/2017 | Granted | 6/6/2038 |
| Owned | Utility | United States | Detecting Radio Signal Emitter Locations | 16/671,398 10,859,668 | 6/30/2017 | Granted | 6/6/2038 |
| Owned | Utility | United States | Detecting Radio Signal Emitter Locations | 17/108,708 11,480,649 | 6/30/2017 | Granted | 6/6/2038 |
| Owned | Utility | United States | Determining Emitter Locations | 15/369,228 9,661,604 | 6/30/2016 | Granted | 12/5/2036 |
| Owned | Utility | United States | Determining Emitter Locations | 15/599,530 10,057,873 | 6/30/2016 | Granted | 12/5/2036 |
| Owned | Utility | United States | Determining Emitter Locations | 15/998,985 10,440,677 | 6/30/2016 | Granted | 12/5/2036 |
| Owned | Utility | United States | Determining Emitter Locations | 16/550,369 10,813,073 | 6/30/2016 | Granted | 12/5/2036 |
| Owned | Utility | United States | Determining Emitter Locations | 17/072,595 11,516,763 | 6/30/2016 | Granted | 12/5/2036 |
| Owned | Utility | United States | Determining Emitter Locations | 17/592,150 11,882,540 | 6/30/2016 | Granted | 12/5/2036 |
| Owned | Utility | Europe | Determining Emitter Locations | 17820961.5 3479793 | 6/30/2016 | Granted | 6/22/2037 |
| Owned | Utility | France | Determining Emitter Locations | 17820961.5 3479793 | 6/30/2016 | Granted | 6/22/2037 |
| Owned | Utility | Germany | Determining Emitter Locations | 17820961.5 3479793 | 6/30/2016 | Granted | 6/22/2037 |
| Owned | Utility | Luxembourg | Determining Emitter Locations | 17820961.5 3479793 | 6/30/2016 | Granted | 6/22/2037 |
| Owned | Utility | United Kingdom | Determining Emitter Locations | 17820961.5 3479793 | 6/30/2016 | Granted | 6/22/2037 |
| Owned | Utility | Europe | Determining Emitter Locations | 23178735.9 4236509 | 6/30/2016 | Pending | |
| Owned | Utility | Canada | Geolocation-Aided Unique Signal Recognition | 3244837 3244837 | 3/4/2022 | Pending | |
| Owned | Utility | Europe | Geolocation-Aided Unique Signal Recognition | 23764009.9 4487534 | 3/4/2022 | Pending | |
| Owned | Utility | United States | Geolocation-Aided Unique Signal Recognition | 18/843,666 2025/0175283 | 3/4/2022 | Pending | |
| Owned | Utility | United States | Hierarchical Satellite Task Scheduling System | 16/167,001 10,474,976 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | United States | Hierarchical Satellite Task Scheduling System | 16/676,840 11,276,019 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | United States | Hierarchical Satellite Task Scheduling System | 17/693,497 11,720,840 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | United States | Hierarchical Satellite Task Scheduling System | 18/214,071 12,182,746 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | Canada | Scheduling System Of A Plurality Of Hierarchical Tasks For A Satellite System | 3078264 3078264 | 10/20/2017 | Pending | |
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
| | | | | | | | | | | | | | | | | | | | | | | |
| Owned / Licensed | Type | Jurisdiction | Title | Application / Publication / Patent No. | Earliest Priority Date | Status | Expected Expiration Date1,1,1 |
| Owned | Utility | Europe | Method And Scheduling System Of A Plurality Of Hierarchical Tasks For A Satellite System | 18800795.9 3698486 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | France | Method And Scheduling System Of A Plurality Of Hierarchical Tasks For A Satellite System | 18800795.9 3698486 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | Germany | Method And Scheduling System Of A Plurality Of Hierarchical Tasks For A Satellite System | 18800795.9 3698486 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | Luxembourg | Method And Scheduling System Of A Plurality Of Hierarchical Tasks For A Satellite System | 18800795.9 3698486 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | United Kingdom | Method And Scheduling System Of A Plurality Of Hierarchical Tasks For A Satellite System | 18800795.9 3698486 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | Europe | Method And Scheduling System Of A Plurality Of Hierarchical Tasks For A Satellite System | 22173500.4 4117199 | 10/20/2017 | Pending | |
| Owned | Utility | United States | Metadata-Based Emitter Localization | 16/166,579 10,338,189 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | United States | Metadata-Based Emitter Localization | 16/454,245 10,739,436 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | Canada | Metadata-Based Emitter Localization | 3078435 3078435 | 10/20/2017 | Pending | |
| Owned | Utility | Europe | Metadata-Based Emitter Localization | 18800407.1 3698161 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | France | Metadata-Based Emitter Localization | 18800407.1 3698161 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | Germany | Metadata-Based Emitter Localization | 18800407.1 3698161 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | Luxembourg | Metadata-Based Emitter Localization | 18800407.1 3698161 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | United Kingdom | Metadata-Based Emitter Localization | 18800407.1 3698161 | 10/20/2017 | Granted | 10/22/2038 |
| Owned | Utility | Canada | Mission Space | 3229449 3229449 | 8/20/2021 | Pending | |
| Owned | Utility | Europe | Mission Space | 22859268.9 4388339 | 8/20/2021 | Pending | |
| Owned | Utility | United States | Mission Space | 18/685,150 2025/0142289 | 8/20/2021 | Pending | |
| Owned | Utility | Canada | Temporal Rectification Of Radio Frequency Signals | 3243822 3243822 | 3/15/2022 | Pending | |
| Owned | Utility | Europe | Temporal Rectification Of Radio Frequency Signals | 23771319.3 4494370 | 3/15/2022 | Pending | |
| Owned | Utility | Europe | Temporal Rectification Of Radio Frequency Signals | 25172080.1 4568331 | 3/15/2022 | Pending | |
| Owned | Utility | United States | Temporal Rectification Of Radio Frequency Signals | 18/847,103 2025/0211348 | 3/15/2022 | Pending | |
| Owned | Utility | United States | Initialization, Steady State And Dark Ship Operation Of A System For Unique Signal Recognition | 18/610,656 2024/0320558 | 3/21/2023 | Pending | |
| Owned | Utility | Canada | Initialization, Steady State And Dark Ship Operation Of A System For Unique Signal Recognition | 3286172 3286172 | 3/21/2023 | Pending | |
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
| | | | | | | | | | | | | | | | | | | | | | | |
| Owned / Licensed | Type | Jurisdiction | Title | Application / Publication / Patent No. | Earliest Priority Date | Status | Expected Expiration Date1,1,1,1 |
| Owned | Utility | Europe | Initialization, Steady State And Dark Ship Operation Of A System For Unique Signal Recognition | 24775634.9 4684541 | 3/21/2023 | Pending | |
Aurora Insight, Inc. |
| Owned | Utility | United States | System and Methods For Detecting and Characterizing Electromagnetic Emissions | 15/991,540 10,338,118 | 4/12/2018 | Granted | 5/29/2038 |
| Owned | Utility | United States | Systems and Methods For Measuring Terrestrial Spectrum From Space | 15/585,102 10,684,347 | 3/8/2016 | Granted | 5/2/2037 |
| Owned | Utility | United States | Large Scale Radio Frequency Signal Information Processing and Analysis System | 16/384,621 10,582,401 | 3/8/2016 | Granted | 5/2/2037 |
| Owned | Utility | United States | Large Scale Radio Frequency Signal Information Processing and Analysis System Using Bin-Wise Processing | 16/808,327 10,798,598 | 3/8/2016 | Granted | 5/2/2037 |
| Owned | Utility | United States | Large Scale Radio Frequency Signal Information Processing And Analysis System Using Bin-Wise Processing | 16/885,698 11,337,092 | 3/8/2016 | Granted | 5/2/2037 |
| Owned | Utility | United States | Large Scale Radio Frequency Signal Information Processing And Analysis System Using Bin-Wise Processing | 17/746,901 12,127,019 | 3/8/2016 | Granted | 5/2/2037 |
| Owned | Utility | United States | System and Method for Large-Scale Radio Frequency Signal Collection and Processing | 16/822,239 10,779,179 | 3/8/2016 | Granted | 5/2/2037 |
| Owned | Utility | United States | System and Method for Large-Scale Radio Frequency Signal Collection and Processing | 17/021,109 11,553,361 | 3/8/2016 | Granted | 5/2/2037 |
| Owned | Utility | United States | System and Method for Large-Scale Radio | 17/956,675 11,825,324 | 3/8/2016 | Granted | 5/2/2037 |
| | | Frequency Signal Collection and Processing | o. | | | |
| Owned | Utility | United States | System And Method for Large-Scale Radio Frequency Signal Collection and Processing | 18/477,631 2024/0031846 | 3/8/2016 | Pending | |
| Owned | Utility | United States | Large Scale Radio Frequency Signal Information Processing and Analysis System Using Bin-Wise Processing | 17/003,016 11,546,784 | 3/8/2016 | Granted | 5/2/2037 |
| Owned | Utility | United States | Large Scale Radio Frequency Signal Information Processing and Analysis System | 17/956,521 11,950,117 | 3/8/2016 | Granted | 5/2/2037 |
| Owned | Utility | United States | Large Scale Radio Frequency Signal Information Processing and Analysis System Using Bin-Wise Processing | 16/885,637 11,540,151 | 3/8/2016 | Granted | 5/2/2037 |
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
| | | | | | | | | | | | | | | | | | | | | | | |
| Owned / Licensed | Type | Jurisdiction | Title | Application / Publication / Patent No. | Earliest Priority Date | Status | Expected Expiration Date1,1,1,1,1 |
| Owned | Utility | United States | Large Scale Radio Frequency Signal Information Processing and Analysis System Using Bin-Wise Processing | 16/885,610 11,910,209 | 3/8/2016 | Granted | 5/2/2037 |
Innovative Signal Analysis, Inc. |
| Owned | Utility | United States | Imaging System | 11/934,344 8,072,482 | 11/9/2006 | Granted | 11/2/2027 |
| Owned | Utility | United States | Moving Object Detection | 12/627,656 8,803,972 | 11/9/2006 | Granted | 11/2/2027 |
| Owned | Utility | United States | Multi-Dimensional Staring Lens System | 12/627,671 8,670,020 | 11/9/2006 | Granted | 11/2/2027 |
| Owned | Utility | United States | System For Extending A Field-Of-View Of An Image Acquisition Device | 13/357,354 8,792,002 | 11/9/2006 | Granted | 11/2/2027 |
| Owned | Utility | United States | System For Extending A Field-Of-View Of An Image Acquisition Device | 14/314,646 9,413,956 | 11/9/2006 | Granted | 11/2/2027 |
| Owned | Utility | United States | Moving Object Detection, Tracking And Displaying Systems | 12/908,281 9,430,923 | 11/30/2009 | Granted | 10/20/2030 |
| Owned | Utility | United States | Moving Object Detection, Tracking And Displaying Systems | 15/216,813 10,510,231 | 11/30/2009 | Granted | 10/20/2030 |
| Owned | Utility | United States | Video-Enabled Inspection Using Unmanned Aerial Vehicles | 14/830,990 10,139,819 | 8/22/2014 | Granted | 8/20/2035 |
| Owned | Utility | United States | Target Detection And Mapping Using An Image Acquisition Device | 15/912,916 11,039,044 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | Australia | Target Detection And Mapping | 2018230677 2018230677 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | Canada | Target Detection And Mapping | 3055316 3055316 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | Europe | Target Detection And Mapping | 18764832.4 3593324 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | Belgium | Target Detection And Mapping | 18764832.4 3593324 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | Germany | Target Detection And Mapping | 602018049980.6 3593324 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | France | Target Detection And Mapping | 18764832.4 3593324 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | United Kingdom | Target Detection And Mapping | 18764832.4 3593324 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | Netherlands | Target Detection And Mapping | 18764832.4 3593324 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | India | Target Detection And Mapping | 201927030416 513926 | 3/6/2017 | Granted | 3/6/2038 |
| Owned | Utility | United States | Multi-Source 3- Dimensional Detection And Tracking | 17/304,699 11,770,506 | 6/25/2020 | Granted | 6/24/2041 |
| Owned | Utility | Australia | Multi-Source 3- Dimensional Detection And Tracking | 2021351611 2021351611 | 6/25/2020 | Granted | 6/24/2041 |
| Owned | Utility | Canada | Multi-source 3dimensional detection and tracking | 3182163 3182163 | 6/25/2020 | Pending | |
| Owned | Utility | Europe | Multi-Source 3- Dimensional Detection And Tracking | 21876154.2 4172960 | 6/25/2020 | Pending | |
| Owned | Utility | India | Multi-source 3dimensional detection and tracking | 202327002027 560400 | 6/25/2020 | Granted | 6/24/2041 |
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
1 The expiration date of a United States patent may be earlier or later than as listed in this table due to patent term adjustment and/or the existence of a terminal disclaimer.
We control access to and use of our proprietary technology and other confidential information through the use of internal and external controls, including contractual protections. We require our employees, consultants, independent contractors, and other third parties to enter into confidentiality and proprietary rights agreements, and we control and monitor access to our software, documentation, proprietary technology, and confidential information. Our policy is to require all employees, consultants, and independent contractors to sign agreements assigning to us any inventions, trade secrets, works of authorship, developments, processes, and/or other intellectual property generated by them on our behalf and under which they agree to protect our confidential information. However, our internal and external controls may not always prevent third parties from gaining access to our trade secrets, confidential information, or proprietary technologies.
Our Competition
We primarily compete with a range of private and government providers offering satellite and data collection, processing and analytics products and services. Additionally, the U.S. Government and international governments may develop, construct, launch, and operate internal capabilities that compete with ours. The principal competitive factors in our market include:
•platform capabilities, performance and technical features;
•data privacy and security;
•reliability;
•ease and speed of adoption, use, and deployment;
•product innovation;
•ability to customize products to meet specific needs of the customer;
•pricing and cost structures;
•customer experience, including support; and
•brand awareness, trust, and reputation.
We believe that we generally compete favorably with our competitors across these factors. However, some of our competitors have greater name recognition, longer operating histories, more experience with regulatory compliance, access to technologies not available to us, broader, deeper, or otherwise more established relationships with U.S. and international government customers; wider geographic presence or greater access to larger potential customer bases; greater focus in specific geographies, protective measures by international governments, lower labor and research and development costs, larger and more mature intellectual property portfolios, and substantially greater financial, technical, and other resources to provide services, to make acquisitions, and to develop and introduce new products and capabilities.
Operations and Manufacturing
We design, manufacture and test many of the components of our satellites, and have developed supply chain operations and capabilities across the United States and globally.
We obtain raw materials, components, subsystems, capital equipment, and other supplies from suppliers that we believe to be reputable and reliable. We have established and follow internal quality control processes to source suppliers, considering engineering validation, quality, cost, delivery, and lead-time factors. We have a quality management team that is responsible for managing and ensuring that supplied components meet quality standards. While we often source raw materials and other inputs and
services from multiple sources, in some cases we also purchase various inputs and services from a sole or single source.
Our current manufacturing capability supports the assembly, integration and testing of our satellites. We leverage a culture of personal accountability and aim to adhere to the appropriate quality and process controls on a continuous basis. We also provide customer service, support and training to ensure the safe and effective operation of our platform.
Government Regulation
Our industry is highly regulated and our operations are subject to various foreign, federal, state, and local laws and regulations. We must comply with, and are affected by, laws and regulations relating to the formation, administration, and performance of U.S. Government and foreign government contracts, and by laws and regulations relating to the launch and operation of the satellites used to provide our services. Changes to or additional government regulations or policies relating to our business could increase regulatory uncertainty and may have an adverse effect on our business, financial condition, and results of operations.
Among the most significant U.S. Government regulations affecting our business are:
•the ITAR, which regulate the export and import of defense articles and defense services;
•the EAR, which regulate the export of dual-use commodities, software, and technology not otherwise regulated by other U.S. regulatory agencies;
•the FCC rules and regulations, which govern the licensing of the use of the radio frequency spectrum used, inter alia, by satellites for telecommand and telecontrol and for communication services;
•the Federal Acquisition Regulation and supplemental agency regulations, which comprehensively regulate the formation, administration, and performance under government contracts;
•the Truthful Cost or Pricing Data Statute (formerly the Truth in Negotiations Act), which requires certification and disclosure of cost and pricing data in connection with certain contract negotiations;
•the Cost Accounting Standards, which impose accounting requirements that govern our right to reimbursement under cost-based government contracts;
•the National Industrial Security Program Operating Manual, which establishes the security guidelines for classified programs and facilities as well as individual security clearances;
•CFIUS, which is tasked with reviewing the national security implications of foreign acquisitions of and direct investments in U.S. businesses;
•the False Claims Act and the False Statements Act, which, respectively, impose penalties for payments made on the basis of false facts provided to the government and impose penalties on the basis of false statements, even if they do not result in a payment; and
•laws, regulations and executive orders restricting the use, access, and dissemination of information and articles classified for National Security purposes.
The nature of the work we do for the U.S. Government may also limit the parties who may invest in or acquire us. Any foreign investment in us will require notification to and review by numerous regulatory agencies and government customers, such as review under the Exon-Florio provisions of the DPA, including review by CFIUS under FIRRMA. Foreign investment in us may not be approved or may require implementation of mitigation measures that limit control and influence of foreign investors as well as
prohibitions on access to information related to our contracts with U.S. agencies. Additionally, foreign investment in us may require prohibition of access to technical data and technical information by the foreign investor. Export laws may keep us from providing potential foreign acquirers with a review of the technical data they would be acquiring.
Any foreign investment that results in FOCI may prompt the DoW to require us and/or a prospective foreign owner to adopt mitigation measures that could include establishment of an independent Proxy Board to isolate the part of the Company that performs classified work. Furthermore, in this situation, it may be necessary for our subsidiaries with facility clearances to obtain a National Interest Determination (“NID”) from the DoW to access certain types of proscribed or restricted information. Failure to obtain a NID could have implications for our subsidiaries’ facility clearances, operations and ability to obtain and retain contracts requiring such access.
U.S. Export Controls
Our business is subject to, and we must comply with, stringent U.S. import and export control laws, including the ITAR and the EAR. The ITAR generally restrict the export of “defense articles” and “defense services” that are enumerated on the U.S. Munitions List or that are determined by State, if exported, to provide a critical military or intelligence advantage that warrants control pursuant to the ITAR. The EAR regulate the export of items listed on the Commerce Control List, but not items that are subject to the exclusive jurisdiction of another U.S. agency, for example defense articles and defense services subject to the ITAR.
The U.S. Government agencies responsible for administering the ITAR and the EAR have significant discretion in the interpretation, administration, and enforcement of these regulations. The agencies also have significant discretion in approving, denying, conditioning, or revoking authorizations to engage in controlled activities. Such decisions are influenced by the U.S. Government’s national security policy, foreign policy, commitments to treaties and other international agreements (including multilateral export control regimes), and changes in relations with individual nations.
Many different types of internal controls and efforts are required to ensure compliance with such export control requirements. In particular, we are required to maintain a registration under the ITAR, determine the proper licensing jurisdiction and classification of any software, hardware, technology, and/or services we export, and obtain licenses or other forms of U.S. Government authorizations to engage in certain activities, including the performance of services for foreign customers that are necessary to sustain our business and the release of controlled technology to foreign national employees, foreign customers and third country national employees of our foreign customers. The inability to secure and maintain necessary licenses and other authorizations could negatively affect our ability to compete successfully or to operate our business as planned. Any changes in the export control regulations or U.S. Government licensing policy, such as that necessary to implement U.S. Government commitments to international agreements, or changes in U.S. foreign policy may restrict our operations.
Failures by us to comply with export control laws and regulations could result in civil or criminal penalties, fines, investigations, more onerous compliance requirements, loss of export privileges, debarment from government contracts, or limitations on our ability to enter into contracts with the U.S. Government.
U.S. Communications Regulations
We are licensed by the FCC to use radiofrequency spectrum for communications to and from our satellite constellation and associated ground stations to operate and control our satellites, and for operation of data relays from the satellites to the ground stations or other satellites. The federal Communications Act and the FCC’s rules govern the authorization, operation, replacement, and decommissioning of satellite systems, as well as coordination with other satellite operators to prevent harmful radio interference. FCC authorizations are granted for a fixed term, and must be renewed prior to expiration to permit continued operation in space. As part of the process of obtaining authorization we
also must file and receive approval from the FCC of an orbital debris mitigation plan covering the launch, in-orbit operation, and end-of life deorbiting of our satellite constellation.
Government Contracts
A material portion of our revenue is derived from contracts, directly or indirectly, with the U.S. Government that are subject to U.S. Government contracting rules and regulations and therefore are subject to the business risks specific to the defense industry, including the ability of the U.S. Government to unilaterally: (1) suspend us from receiving new contracts; (2) terminate existing contracts at its convenience and without significant notice; (3) reduce the value of existing contracts; (4) audit our contract-related costs and fees, including allocated indirect costs; and (5) revoke required security clearances. Violations of government procurement laws could result in civil or criminal penalties.
We also need security clearances to continue working on and advancing certain of our programs and contracts with the U.S. Government. Classified programs generally will require that we comply with various executive orders, federal laws and regulations and customer security requirements that may include restrictions on how we develop, store, protect, and share information, and may require our employees to obtain government clearances.
Cybersecurity
Given our industry and customer base, we face and will continue to face cybersecurity risks. We operate in a highly sensitive industry with multiple government agency partners and customers and handle sensitive information on their behalf. In the current geopolitical environment, our industry, customer base, and partnerships create heightened cybersecurity risks to ourselves, the third parties with whom we work, and our information technology supply chain. Cybersecurity incidents could result in adverse business consequences. Further, we are subject to regulatory and contractual requirements relating to our cybersecurity practices, including the Cybersecurity Maturity Model Certification for DoW contractors, related to our provision of services to the U.S. Government and other customers.
For more information regarding the cybersecurity risks to our business, see “Risk Factors—Risks Related to Information Technology, Cybersecurity, Data Privacy and Intellectual Property—If our information technology systems or those third parties with whom we work or our data, are or were compromised, we could experience adverse consequences resulting from such compromise, including regulatory investigations or actions; litigation; fines and penalties; disruptions of our business operations; reputational harm; loss of revenue or profits; loss of customers; and other adverse consequences.”
Environmental, Health, and Safety Matters
Our operations and facilities are subject to an extensive regulatory framework of federal, state, local, and foreign environmental, health, and safety laws, and regulations and permits that govern, among other things, employee health and safety, discharges of pollutants, and the generation, handling, storage, release, and disposal of hazardous materials and wastes. In addition, we are subject to various and potentially conflicting substantive requirements and disclosure requirements with respect to greenhouse gas emissions and climate change. Non-compliance with such laws, regulations and permits could result in substantial fines, penalties, litigation, liabilities, and obligations. In addition, such laws and regulations may require us to investigate and remediate the effects of the release or disposal of materials at sites associated with past and present operations, and any obligations to remediate and investigate could be joint and several without regard to fault.
See “Risk Factors—Legal and Regulatory Risks—Our operations are subject to governmental law and regulations relating to environmental matters, which may expose us to significant costs and liabilities that could negatively impact our financial condition.” See also “Risk Factors—Legal and Regulatory Risks—We may be adversely affected by global climate change or by legal, regulatory or market responses to such change.”
Our Facilities
Our corporate headquarters is located in Herndon, Virginia and comprises three buildings with a total surface area of 38,354 square feet. Such facilities host our constellation operations, data processing, software development, payload development, satellite assembly, and administrative functions. Additionally, our wholly-owned subsidiary, ISA, occupies three facilities in Richardson, Texas with a total surface area of 85,491 square feet, collectively, and one facility in Aurora, Colorado with a total surface area of 8,185 square feet. Such facilities host ISA’s customer classified networks and certain manufacturing functions. We do not own any real property. We intend to procure additional space when we add employees and expand geographically. We believe that our facilities are adequate to meet our needs for the immediate future, and that, should it be needed, suitable additional space will be available to accommodate any such expansion of our operations.
Human Capital and Our Culture
As of December 31, 2025, we had 395 full-time employees and 8 part-time employees, none of whom is subject to any collective bargaining agreement, and 16 contractors. Prior to joining us, many of our employees held roles at defense technology, space and radio frequency, and other signals sensing and processing companies, as well as government and military leadership positions relevant to our mission. To date, we have not experienced any work stoppages, and we consider our relationship with our employees to be good.
Our people are a precious resource. We believe our success depends, in part, on our continuing ability to identify, hire, attract, train, and develop highly qualified personnel and that our Virginia-based business provides access to a deep pool of talent. The majority of our employees are engaged in research and development, engineering and technology roles, and experienced and highly skilled employees in these areas are in high demand. Competition for these employees can be intense, and there may be concerns regarding new employees’ unauthorized disclosure of competitors’ trade secrets. Generally, each employee is required to sign a confidentiality, non-disclosure, and non-use agreement with us.
Our culture is one that emphasizes teamwork, accountability, transparency, and continuous improvement. Our organization works, iterates, fails, and succeeds as a team, and we value collective team achievement over individual accomplishment. We believe that individuals who are treated with respect, equality and trust and are provided with responsibility, respond by taking accountability and investing their personal best. We embrace transparency and seek to create a safe, positive environment where matters of performance, relationships and conduct are handled professionally and judiciously. We acknowledge the value of differing perspectives, and our people respect and value one another’s opinions. We believe that continuous learning is an essential job function for all of our people, and seek to develop our teammates into better thinkers, better leaders, and better employees.
Our compensation program is designed to retain, motivate and, as needed, attract highly qualified employees. Accordingly, we use a mix of competitive base salary, cash-based annual incentive compensation, equity compensation awards and other employee benefits.
Public Benefit Corporation
As a demonstration of our long-term commitment to public safety and security, and in recognition of the way our commercial activities promote the same, we will make an election to be treated as a public benefit corporation under Delaware law, to be effective upon the completion of this offering. Public benefit corporations are a class of corporations that are intended to produce a public benefit and to operate in a responsible and sustainable manner. Under Delaware law, a public benefit corporation is required to identify in its certificate of incorporation the public benefit or benefits it will promote, and its directors have a duty to manage the affairs of the corporation in a manner that balances the pecuniary interests of the corporation’s stockholders, the best interests of those materially affected by the corporation’s conduct, and the specific public benefit or benefits identified in the corporation’s certificate of incorporation. Public
benefit corporations organized in Delaware are also required to assess their benefit performance internally and to disclose to stockholders at least biennially a report detailing their success in meeting their benefit objectives. Our public benefit, as provided in our amended and restated certificate of incorporation, is to preserve the safety, security, and resilience of the American people and our allies.
Legal Proceedings
From time to time, we are involved in various legal proceedings arising from activities in the normal course of business. We are not presently a party to any litigation the outcome of which, we believe, if determined adversely to us, would individually or taken together have a material adverse effect on our business, financial condition, results of operations, and cash flows. Defending any legal proceedings is costly and can impose a significant burden on management and employees. The results of any litigation cannot be predicted with certainty, and regardless of the outcome, litigation can have an adverse impact on us because of defense and settlement costs, diversion of management resources, and other factors.
MANAGEMENT
Executive Officers and Directors
The following table provides information regarding our current executive officers and directors, including their ages as of December 31, 2025:
| | | | | | | | | | | | | | |
| Name | | Age | | Position(s) |
Executive Officers | | | | |
John Serafini | | 49 | | President, Chief Executive Officer and Director |
Craig Searle | | 42 | | Chief Financial Officer |
Patrick Zeitouni | | 46 | | Chief Strategy Officer |
Todd Probert | | 59 | | Chief Operating Officer |
Alex Fox | | 64 | | President, HawkEye 360 International |
Michael Turner | | 58 | | Chief Legal Officer |
Chris Herndon | | 61 | | Chief Information Officer |
Janine Sweeney | | 59 | | Chief Human Resources Officer |
| | | |
|
Non-Employee Directors | | | | |
Mark Spoto | | 56 | | Chairman of the Board |
David G. DeWalt | | 61 | | Director |
| Francis A. Finelli | | 68 | | Director |
Arthur Money | | 85 | | Director |
| Jonathan Shames | | 64 | | Director |
James “Sandy” Winnefeld | | 69 | | Director |
Executive Officers
John Serafini. John Serafini has served as our President and Chief Executive Officer since 2016. He has also served as Venture Partner and a member of the Investment Committee at Shield Capital, a venture capital firm that invests in early-stage AI, cybersecurity and space technology companies, since May 2021. Previously, he served as Senior Vice President of Allied Minds PLC., a publicly traded venture capital firm focused on early-stage company development within the technology and life sciences sectors, from 2011 to 2016, as an Airborne Ranger-qualified U.S. Army infantry officer from 1998 to 2004, and the National Guard from 2004 to 2006. Mr. Serafini has served as a member of the Advisory Board of the National Security Space Association since 2022, as a member of the Board of Governors of the Middle East Institute since 2024, and as a member of the Board of Trustees of the INSA Foundation since 2024. Mr. Serafini holds a B.S. from the United States Military Academy, an M.P.A. from the Harvard Kennedy School, and an M.B.A. from Harvard Business School. We believe that Mr. Serafini is qualified to serve on our board of directors due to his involvement since our inception and extensive expertise in investment and entrepreneurship.
Craig Searle. Craig Searle has served as our Chief Financial Officer since September 2025. Previously, Mr. Searle served as our Chief Business Officer from February 2025 to September 2025, Vice President of Strategic Finance from October 2023 to February 2025, and as a member of our Board of Directors and Audit Committee from 2019 to October 2023. Prior to joining us, Mr. Searle was Vice President of Strategy at 21shares, a financial technology company, from 2021 to 2023 where he was responsible for financial planning and analysis, strategy and business development. Previously, he served as Director of Strategic Investments and Acquisitions at Advance, a private holding company, from 2017 to 2021, where he was responsible for sourcing, diligence and execution of acquisitions and investments, and as an associate and later a director in Investment Banking at UBS Investment Bank, from 2012 to
2017. Mr. Searle holds a B.A. in Economics from the University of Rochester and an M.B.A. from Columbia Business School.
Patrick Zeitouni. Patrick Zeitouni has served as our Chief Strategy Officer since January 2023. Previously, Mr. Zeitouni served as Head of Space Mobility at Blue Origin, a space transportation company, from 2017 to December 2022, and as a partner at McKinsey & Co. from 2009 to 2017. He also worked as a senior systems engineer at Northrop Grumman, a defense company, from 2001 to 2007. Mr. Zeitouni holds a B.S. in Electrical Engineering from the Georgia Institute of Technology, an M.S. in Astronautics from the University of Southern California, an M.S. in Electrical Engineering from the University of Southern California, and an M.B.A. from the Massachusetts Institute of Technology’s Sloan School of Management.
Todd Probert. Todd Probert has served as our Chief Operating Officer since January 2026, and previously served as our President of U.S. Government Business from February 2025 to January 2026. From July 2020 to August 2024, Mr. Probert served as President of National Security and Innovative Solutions at CACI International Inc. From January 2020 to June 2020, Mr. Probert served as the President of Defense and Security at CAE Inc. and as a member of the board of directors of CAE US. Prior to his role at CAE Inc., Mr. Probert held various senior leadership positions, over approximately ten years, at RTX Corporation, an aerospace and defense company, including Vice President of Command and Control, Space, and Intelligence and Vice President of Engineering for one RTX’s four businesses. Mr. Probert holds a B.S. in Aerospace Engineering from the University of Michigan and an M.S. in Aeronautical and Astronautical Engineering from Purdue University.
Alex Fox. Alex Fox has served as our President, HawkEye 360 International since January 2026. Mr. Fox previously served as our President, International Business from February 2025 to January 2026, and as our Chief Growth Officer from 2019 to February 2025. Prior to joining us, Mr. Fox was Director of Space ISR Solutions at Harris Corporation, a technology and defense company, and previously held various executive roles in business development, engineering, and operations at IBM, USAF/A2Q Pentagon, DigitalGlobe, Northrop Grumman, GeoEye, Orbital Sciences Corporation, Fairchild Space and Defense, and the Georgia Tech Research Institute (GTRI). Since 2019, Mr. Fox has served on the Georgia Tech College of Computing Advisory Board. He holds a B.S. in Information and Computer Science from the Georgia Institute of Technology and an M.S. in Computer Science from Johns Hopkins University.
Michael Turner. Michael Turner has served as our Chief Legal Officer since December 2025. Previously, Mr. Turner held various roles at 908 Devices Inc., a publicly traded company focused on purpose-built handheld chemical analysis tools for vital health, safety, and defense technology applications, including Chief Legal and Administrative Officer from March 2023 to December 2025, Secretary from November 2020 to December 2025, and Vice President, General Counsel from November 2020 to March 2023. Previously, Mr. Turner served as Co-Chief Executive Officer, General Counsel and Executive Director from 2019 to 2020, and as Executive Vice President, General Counsel and Company Secretary from 2014 to 2019, of Allied Minds plc, a publicly traded venture firm focused on early-stage company development within the technology and life science sectors. Prior to that, he served as a Partner at DLA Piper LLP from 2010 to 2014, and as an Associate and later a Partner at Goodwin Procter LLP from 1998 to 2009, counseling public and private companies, investment banks, and private equity and venture capital firms, with an emphasis on capital markets, mergers and acquisitions, and corporate governance for growth companies in the technology and life science sectors. Mr. Turner holds a B.A. from Colgate University and a J.D. from Cornell Law School.
Chris Herndon. Chris Herndon has served as our Chief Information Officer since January 2026. Mr. Herndon previously served as our Chief Operating Officer and Chief Information Officer from March 2025 to January 2026, and as our Chief Information Officer from 2019 to March 2025. Mr. Herndon is also the founder of TechCentrics, Inc., a consulting company, and has served as its Chief Operating Officer since 2018. Prior to joining us, Mr. Herndon served as Director of White House Information Technology from 2017 to 2018, where he oversaw the development and execution of IT strategy and operations for the
Executive Office of the President. Mr. Herndon holds a B.S. in Electrical Engineering from the University of Maryland.
Janine Sweeney. Janine Sweeney has served as our Chief Human Resources Officer since January 2025. Previously, Ms. Sweeney was our Senior Vice President of Human Resources from 2019 to December 2024. Prior to joining us, Ms. Sweeney held leadership roles managing Human Resources at a variety of companies, including Comsearch, Data Systems and Solutions, OMNIPLEX World Services Corporation and Constellis. Ms. Sweeney holds a B.A. in Business Psychology from Miami University.
Each executive officer serves at the discretion of our board of directors and holds office until his or her successor is duly appointed and qualified or until his or her earlier resignation or removal.
Non-Employee Directors
Mark Spoto. Mark Spoto has served as a member of our board of directors since 2016. Mr. Spoto is a Co-Founder and Managing Partner at Razor’s Edge Ventures, a multi-stage investment firm that invests in technology companies solving significant challenges in national security and high-growth commercial markets, where he has been a Partner since 2011. Previously, Mr. Spoto was a Partner at Cooley LLP from 1999 to 2011. Mr. Spoto has served on the board of directors of 908 Devices, Inc. since 2012. Mr. Spoto also serves on the boards of several private companies, including BlackVe and X-Bow Systems. Mr. Spoto holds a B.S. in Aerospace Engineering from Boston University and a J.D. from Georgetown University Law Center. We believe that Mr. Spoto is qualified to serve on our board of directors due to his financial, investment and legal expertise.
David G. DeWalt. David G. DeWalt has served on our board of directors since April 2021. Mr. DeWalt is the Founder, Managing Director and Chief Executive Officer of NightDragon Security, a venture capital and advisory firm focused on cybersecurity, safety, security, and privacy, which he founded in 2012. He has also served as a Managing Director of AllegisCyber Capital, an early-stage cybersecurity venture capital firm, since 2017. Mr. DeWalt previously served as the Executive Chairman of FireEye, Inc., a global network cybersecurity company. He served as FireEye’s Chief Executive Officer from 2012 to 2016 and as Chairman of the board from 2012 to 2017. Mr. DeWalt was President and Chief Executive Officer of McAfee, Inc., a security technology company, from 2007 until 2011, when McAfee, Inc. was acquired by Intel Corporation. From 2003 to 2007, Mr. DeWalt held executive positions with EMC Corporation, a provider of information infrastructure technology and solutions, including serving as Executive Vice President and President - Customer Operations and Content Management Software. Mr. DeWalt has served on the boards of Delta Airlines since 2011 and Exelon Corporation since March 2025. Previously, Mr. DeWalt served on the boards of various public companies, including ForgeRock Inc. from 2017 to May 2022, Five9, Inc. from 2012 to June 2024, NightDragon Acquisition Corp. from February 2021 to December 2022 and Forescout Technologies, Inc. from 2015 to 2020. Mr. DeWalt holds a B.S. in Computer Science from the University of Delaware. We believe that Mr. DeWalt is qualified to serve on our board of directors due to his background in management and public company board experience.
Francis A. Finelli. Francis A. Finelli has served on our board of directors since March 2026. Mr. Finelli has served as the Founding Principal of White Pelican Advisory, LLC since March 2024 and as a Senior Advisor to The Carlyle Group, where he focuses on deals in the defense and aerospace industries, since his retirement from the firm in February 2024. From 1998 to February 2024, Mr. Finelli served as an investment professional at The Carlyle Group, where he was a Managing Director and Partner, and served as Military Legislative Assistant to Senator Dan Coats (R-IN) from 1997 to 1998. Previously, Mr. Finelli served in the U.S. Army from 1979 to 1997, retiring as Lieutenant Colonel of Field Artillery. He holds a B.S. in Economics from the U.S. Military Academy, an M.S. in Management from the Massachusetts Institute of Technology and an M.M.A.S. in Strategy from U.S. Army Command and General Staff College. We believe that Mr. Finelli is qualified to serve on our board of directors due to his strategy expertise and his experience in the defense and aerospace industries.
Arthur Money. The Honorable Arthur L. Money has served on our board of directors since 2019. Since 2001, Mr. Money has provided board and consulting services to a variety of public and private companies developing technology in intelligence, signal processing and information processing, including most recently The KeyW Corp., a national security solutions provider which was acquired by Jacobs, and BlackVe, Inc., a privately-held space systems firm. He has also served a number of companies as an advisor or on advisory boards, including Iridium Communications Inc., a global satellite communications company, 1Kosmos Inc., a privately-held remote identity verification company, and Razor’s Edge Ventures, a venture capital firm. Mr. Money has also served on a number of U.S. Government panels, boards and commissions, including the National Security Agency Advisory board from 2001 to 2018, and served as a Special Government Employee, including most recently to the Defense Science Board from 2001 to January 2025. Previously, Mr. Money held various roles in government service, including the U.S. Assistant Secretary of Defense for Command, Control, Communications and Intelligence (ASD C31) from 1998 to 2001, the DoW Chief Information Officer from 1998 to 2001, the Assistant Secretary of the Air Force for Research, Development and Acquisition from 1996 to 1998 and the Chief Information Officer for the Air Force from 1996 to 1998. Prior to his government service, Mr. Money served as President of ESL Inc., a subsidiary of TRW, from 1989 to 1996. Mr. Money holds a B.S. in Mechanical Engineering from San Jose State University and an M.S. in Mechanical Engineering from University of Santa Clara. We believe that Mr. Money is qualified to serve on our board of directors due to his vast experience in our industry.
Jonathan Shames. Jonathan Shames has served on our board of directors since March 2026. Mr. Shames has served on the Board of Trustees and as Audit Committee Chairman for Blue Owl Capital Digital Infrastructure Trust and Blue Owl Capital Real Estate Net Lease Trust, since August 2025 and August 2022, respectively. Since March 2022, Mr. Shames has served as a senior advisor to the Consulting division of Highspring, a management and technology consulting firm that works with leading businesses to address critical finance, technology, and business objectives. Previously, Mr. Shames held various roles, including senior leadership positions, at Ernst & Young LLP from 1983 to July 2021. He is a licensed CPA and holds a B.A. in Economics from Colgate University and an M.B.A. in Finance from New York University. We believe that Mr. Shames is qualified to serve on our board of directors due to his experience in audit, accounting, and financial reporting matters.
James “Sandy” Winnefeld. Admiral James A. “Sandy” Winnefeld Jr. has served as a member of our board of directors since February 2024. He currently serves as a consultant and as a Professor of the Practice at the Georgia Institute of Technology, roles he has held since 2015. Previously, Admiral Winnefeld held various senior leadership roles in the U.S. military, including as the Ninth Vice Chairman of the Joint Chiefs of Staff from 2011 to 2015. He served as the Chair of the President’s Intelligence Advisory Board from March 2022 to January 2025. Additionally, he has served on the board of directors and the Audit and Compensation Committees of Molson Coors Beverage Company since 2020 and on the board of directors and the Special Activities, Compensation, Governance and Audit Committees of RTX Corporation since 2017. He received his B.A.E. in Aerospace Engineering from the Georgia Institute of Technology and graduated from the Naval War College and Navy Nuclear Power School. We believe that Admiral Winnefeld is qualified to serve on our board of directors due to his defense and intelligence expertise, technology background, experience in strategic design, and prior experience on public company boards.
Family Relationships
There are no family relationships among any of our directors or executive officers.
Board Structure and Composition
Our business and affairs are managed under the direction of our board of directors, which at the time of this offering consists of seven members. Our directors were elected to, and currently serve on, the board pursuant to a voting agreement among us and certain of our stockholders and voting rights granted by our current amended and restated certificate of incorporation. The voting agreement will terminate
upon the closing of this offering, after which there will be no further contractual obligations regarding the election of our directors.
In accordance with our amended and restated certificate of incorporation that will be in effect upon the closing of this offering, our board of directors will be divided into three classes, each of which will consist, as nearly as possible, of one-third of the total number of directors constituting our entire board and which will serve staggered three-year terms. At each annual meeting of stockholders, the successors to directors whose terms then expire will be elected to serve from the time of election and qualification until the third annual meeting following election. Our directors will be divided among the three classes as follows:
•Class I, which will consist of Francis A. Finelli, Arthur Money and James “Sandy” Winnefeld, and their terms will expire at our first annual meeting of stockholders to be held after the closing of this offering;
•Class II, which will consist of John Serafini and Jonathan Shames, and their terms will expire at our second annual meeting of stockholders to be held after the closing of this offering; and
•Class III, which will consist of David G. DeWalt and Mark Spoto, and their terms will expire at our third annual meeting of stockholders to be held after the closing of this offering.
Our amended and restated bylaws, which will become effective upon the closing of this offering, will provide that the authorized number of directors may be changed only by resolution approved by a majority of our board of directors. Any additional directorships resulting from an increase in the number of directors will be distributed among the three classes so that, as nearly as possible, each class will consist of one-third of the directors. The division of our board of directors into three classes with staggered three-year terms may delay or prevent a change of our management or a change of control.
Director Independence
Applicable New York Stock Exchange rules (the “Listing Rules”) require a majority of a listed company’s board of directors to be composed of independent directors within one year of listing. In addition, the Listing Rules require that, subject to specified exceptions, each member of a listed company’s audit, compensation and nominating and corporate governance committees be independent and that audit committee members also satisfy independence criteria set forth in Rule 10A-3 under the Exchange Act. The independence definition under the Listing Rules includes a series of objective tests, including that the director is not, and has not been for at least three years, one of our employees and that neither the director nor any of his or her family members has engaged in various types of business dealings with us. In addition, under the Listing Rules, a director will only qualify as an “independent director” if, in the opinion of the listed company’s board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.
Our board of directors has determined that all of our directors other than John Serafini, representing six of our seven directors, are “independent directors” as defined under the Listing Rules. In making such determination, our board of directors considered the current and prior relationships that each such director has with us and all other facts and circumstances that our board of directors deemed relevant in determining his or her independence, including the beneficial ownership of our capital stock by each director and the transactions described in the section titled “Certain Relationships and Related Party Transactions.”
Role of the Board in Risk Oversight
One of the key functions of our board of directors is informed oversight of our risk management process. Our board of directors does not have a standing risk management committee, but rather administers this oversight function directly through the board of directors as a whole, as well as through
various standing committees of our board of directors that address risks inherent in their respective areas of oversight. In particular, our audit committee will monitor our major financial, accounting, legal, compliance, investment, tax, cybersecurity, and data privacy risks, and the steps our management has taken to identify and control these exposures, including by reviewing and setting guidelines, internal controls, and policies that govern the process by which risk assessment and management is undertaken. In addition, our compensation and management development committee will oversee the management of risks relating to our employment policies and executive compensation plans and arrangements, and our nominating and corporate governance committee will oversee the management of our corporate governance practices.
While our board of directors oversees our risk management, management is responsible for day-to-day risk management processes. Our board of directors expects management to consider risk and risk management in each business decision, to proactively develop and monitor risk management strategies and processes for day-to-day activities, and to effectively implement risk management strategies adopted by our board of directors, as a whole and at the committee level. We believe this division of responsibilities is the most effective approach for addressing the risks we face.
Board Committees
Our board of directors has established an audit committee, a compensation committee and a nominating and corporate governance committee, each of which operates pursuant to a committee charter. The composition and responsibilities of each of the committees of our board of directors are described below. Members serve on these committees until their resignation or until otherwise determined by our board of directors. Our board of directors may establish other committees as it deems necessary or appropriate from time to time.
Audit Committee
Upon the completion of this offering, our audit committee will consist of Francis A. Finelli, Jonathan Shames and James “Sandy” Winnefeld, with Jonathan Shames serving as chair of the audit committee. Our board of directors has determined that each of these individuals meets the independence requirements of Rule 10A-3 under the Exchange Act and the Listing Rules. Each member of our audit committee can read and understand fundamental financial statements in accordance with audit committee requirements. Our board of directors has also determined that Jonathan Shames qualifies as an audit committee financial expert within the meaning of SEC regulations and meets the financial sophistication requirements of the Listing Rules. In arriving at these determinations, the board has examined each audit committee member’s scope of experience and the nature of their prior and/or current employment.
The primary responsibilities of this committee include:
•helping our board of directors oversee our corporate accounting and financial reporting processes;
•managing the selection, engagement, qualifications, independence and performance of a qualified firm to serve as the independent registered public accounting firm to audit our financial statements;
•discussing the scope and results of the audit with the independent registered public accounting firm, and reviewing, with management and the independent accountants, our interim and year-end operating results;
•developing procedures for employees to submit concerns anonymously about questionable accounting or audit matters;
•reviewing related person transactions;
•coordinating the oversight and reviewing the adequacy of our internal control over financial reporting;
•obtaining and reviewing a report by the independent registered public accounting firm at least annually that describes our internal quality control procedures, any material issues with such procedures and any steps taken to deal with such issues when required by applicable law; and
•approving or, as permitted, pre-approving, audit and permissible non-audit services to be performed by the independent registered public accounting firm.
We believe that the composition and functioning of our audit committee will comply with all applicable SEC and the New York Stock Exchange rules and regulations. We intend to comply with future requirements to the extent they become applicable to us.
Compensation Committee
Upon the completion of this offering, our compensation committee will consist of David G. DeWalt, Arthur Money and Mark Spoto, with David G. DeWalt serving as chair of the compensation committee. Each of these individuals is a non-employee director, as defined in Rule 16b-3 promulgated under the Exchange Act and is an “outside director,” as defined pursuant to Section 162(m) of the Code. Our board of directors has determined that each of these individuals is “independent” as defined under the Listing Rules, including the standards specific to members of a compensation committee.
The primary responsibilities of this committee include:
•reviewing and approving, or recommending that our board of directors approve, the compensation of our executive officers;
•reviewing and recommending to our board of directors the compensation of our non-employee directors;
•reviewing and recommending to our board of directors the terms of any compensatory agreements with our executive officers;
•administering our stock and equity incentive plans;
•reviewing and approving, or making recommendations to our board of directors with respect to, incentive compensation and equity plans; and
•establishing our overall compensation philosophy.
We believe that the composition and functioning of our compensation committee will comply with all applicable SEC and the New York Stock Exchange rules and regulations. We intend to comply with future requirements to the extent they become applicable to us.
Nominating and Corporate Governance Committee
Upon the completion of this offering, our nominating and corporate governance committee will consist of Jonathan Shames, Mark Spoto and Sandy Winnefeld, with James “Sandy” Winnefeld serving as chair of the nominating and corporate governance committee. Our board of directors has determined that each of these individuals is “independent” as defined under the Listing Rules and SEC rules and regulations. The primary responsibilities of this committee include:
•identifying and recommending candidates for membership on our board of directors;
•recommending directors to serve on board committees;
•reviewing and recommending to our board of directors any changes to our corporate governance guidelines;
•reviewing proposed waivers of the code of conduct for directors and executive officers;
•overseeing any program relating to corporate responsibility and sustainability matters;
•overseeing the process of evaluating the performance of our board of directors; and
•advising our board of directors on governance matters.
We believe that the composition and functioning of our nominating and corporate governance committee will comply with all applicable SEC and New York Stock Exchange rules and regulations. We intend to comply with future requirements to the extent they become applicable to us.
Government and Security Committee
Upon the completion of this offering, our government and security committee will consist of Arthur Money, Sandy Winnefeld and Francis A. Finelli, with Arthur Money serving as chair of the government and security committee. Our board of directors has determined that each of these individuals is “independent” as defined under the Listing Rules and SEC rules and regulations. The primary responsibilities of this committee include:
•reviewing the strategic, operational and financial aspects of any classified or export-controlled business with the Company’s management;
•reviewing the policies and practices with respect to risk assessment and risk management and the internal control environment in the area of classified or export-controlled business activities;
•reviewing issues, procedures and programs relating to the security of the Company’s facilities, employees, systems and networks for the purposes of insider threat detection, physical security, and protection of classified or controlled cyber data and sensitive controlled (e.g., proprietary) information maintained by the Company;
•reviewing issues and procedures relating to the security of suppliers and the global supply chain within the Company’s classified or export-controlled business; and
•reviewing and assessing the results of significant internal and external reviews, audits and inspections related to the security of personnel, data, and facilities.
We believe that the composition and functioning of our government and security committee will comply with all applicable SEC and New York Stock Exchange rules and regulations. We intend to comply with future requirements to the extent they become applicable to us.
Compensation Committee Interlocks and Insider Participation
None of the members of our compensation committee are currently or has been at any time one of our officers or employees. None of our executive officers currently serves, or has served during the last year, as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving as a member of our board of directors or compensation committee.
Code of Business Conduct and Ethics
Effective upon the pricing of this offering, we will adopt a code of business conduct and ethics that applies to all of our employees, officers, and directors. Following the pricing of this offering, the full text of our code of business conduct and ethics will be posted on the investor relations page on our website at www.he360.com. We intend to disclose any amendments to our code of business conduct and ethics, or waivers of its requirements, on our website or in filings under the Exchange Act. Information contained on,
or that can be accessed through, our website is not incorporated by reference into this prospectus, and you should not consider information on our website to be part of this prospectus.
Non-Employee Director Compensation
Historically, we have not had a formal compensation policy with respect to service on our board of directors. Other than as set forth in the table and described more fully below, we did not pay any compensation, make any equity awards, or non-equity awards to, or pay any other compensation to any of the non-employee directors during the year ended December 31, 2025. We intend to adopt a non-employee director compensation policy, pursuant to which our non-employee directors will be eligible to receive compensation for service on our board of directors and committees of our board of directors, to be effective following the completion of this offering. We have reimbursed and will continue to reimburse all of our non-employee directors for their reasonable out-of-pocket expenses incurred in attending board of directors and committee meetings.
John Serafini, our President and Chief Executive Officer, is also a member of our board of directors, but did not receive any additional compensation for his service as a director during this period.
2025 Director Compensation
| | | | | | | | | | | | | | | | | | | | | | | |
| Name | | Fees earned or paid in cash ($)(1) | | Option awards ($)(1)(2) | | Total ($) |
| Mark Spoto | | — | | | | — | | | — | |
David G. DeWalt | | — | | | | — | | | — | |
| Arthur Money | | 50,000 | | | | 16,125 | | | 66,125 | |
| James “Sandy” Winnefeld | | 50,000 | | | | — | | | 50,000 | |
Dave Wajsgras(4) | | — | | | | 788,245 | | | 788,245 | |
______________
(1)Amounts represent fees earned for attending meetings of the board of directors in 2025.
(2)Amounts reported represent the aggregate grant date fair value underlying options granted to the non-employee director during 2024 under the 2015 Plan. Amounts reported in this column have been computed in accordance with FASB ASC, Topic 718. The assumptions we use in calculating these amounts are included in Note 2 to our audited consolidated financial statements appearing at the end of this prospectus. This amount does not reflect dollar amounts actually received by the non-employee director or the economic value that may be received by the non-employee director.
(3)The following table sets forth the number of shares of common stock underlying outstanding stock option grants held by our non-employee directors as of December 31, 2025:
| | | | | | | | |
| Name | | Option awards (#) |
| Mark Spoto | | — |
David G. DeWalt | | — |
| Arthur Money | | 244,636 |
| James “Sandy” Winnefeld | | 221,445 |
Dave Wajsgras | | 238,862 |
(4)Mr. Wajsgras resigned from our board of directors effective as of January 1, 2026.
In April 2017, our board of directors granted an option to purchase of 117,136 shares of our common stock to Hon. Money, which was fully vested as of December 31, 2025.
In September 2019, our board of directors granted an option to 40,000 shares of our common stock to Hon. Money, which was fully vested as of December 31, 2025.
In May 2021, our board of directors granted an option to purchase 4,000 shares of our common stock to Hon. Money, which was fully vested as of December 31, 2025.
In January 2023, our board of directors granted an option to purchase 1,000 shares of our common stock to Hon. Money, which was fully vested as of December 31, 2025.
In October 2023, our board of directors granted an option to purchase 75,000 shares of our common stock to Hon. Money, which was fully vested as of December 31, 2025.
In January 2023, our board of directors granted an option to purchase 5,000 shares of our common stock to Admiral Winnefeld. This stock option vests over a period of four years, with 25% of the shares underlying the stock option vested on January 1, 2024, and the remaining shares subject to the stock option vesting in equal monthly installments for the 36 months thereafter, subject to continued service through each applicable vesting date.
In February 2024, our board of directors granted an option to purchase 216,445 shares of our common stock to Admiral Winnefeld in connection with his appointment to our board of directors. This stock option vests over a period of four years, with 25% of the shares underlying the stock option vested February 16, 2025, and the remaining shares subject to the stock option vesting in equal monthly installments for the 36 months thereafter, subject to continued service through each applicable vesting date.
In January 2025, our board of directors granted an option to purchase 7,500 shares of our common stock to Hon. Money. This stock option vests in equal monthly installments over a period of four years, subject to continued service through each applicable vesting date.
In September 2025, our board of directors granted an option to purchase 238,862 shares of our common stock to Mr. Wajsgras in connection with his appointment to our board of directors. This stock option vests over a period of four years, with 25% of the shares underlying the stock option to vest on July 16, 2026, and the remaining shares subject to the stock option vesting in equal monthly installments for the 36 months thereafter, subject to continued service through each applicable vesting date.
Each of the unvested options described above are subject to single trigger acceleration in the event of a change in control of the Company.
Non-Employee Director Compensation Policy
Our board of directors adopted a non-employee director compensation policy in April 2026 that will become effective upon the pricing of this offering and is applicable to all of our non-employee directors. This compensation policy provides that each such non-employee director will receive the compensation described below for service on our board of directors:
Cash compensation. Under this policy, we will pay each of our non-employee directors cash retainers for service on our board of directors and committees of our board of directors as follows:
| | | | | |
| Annual Cash Retainer ($) |
| Annual retainer | 50,000 |
Additional retainer for chairperson | 50,000 |
| Additional retainer for audit committee chair | 20,000 |
| Additional retainer for audit committee non-chair member | 10,000 |
| Additional retainer for compensation committee chair | 15,000 |
| Additional retainer for compensation committee non-chair member | 7,500 |
| Additional retainer for nominating and corporate governance committee chair | 10,000 |
Additional retainer for nominating and corporate governance committee non-chair member | 5,000 |
| Additional retainer for government and security committee chair | 10,000 |
| Additional retainer for government and security committee non-chair member | 5,000 |
We will also reimburse each non-employee director for any ordinary and reasonable out-of-pocket expenses actually incurred by such director in connection with in-person attendance at and participation in meetings of our board of directors and committees of our board of directors.
Equity compensation. In addition to cash compensation, each non-employee director will be eligible to receive RSUs under our 2026 Plan. Vesting schedules for equity awards will be subject to the non-employee director’s continuous service on each applicable vesting date, provided that each award will vest in full upon a change in control of the company, as defined in the 2026 Plan.
Initial award. Each new non-employee director elected or appointed to our board of directors after the effective date of the policy will automatically be granted RSUs with an aggregate grant date fair value of $400,000. The RSUs subject to the initial grant will vest in substantially equal annual installments over a three-year period such that the initial grant is fully vested on the third anniversary of the grant date.
Annual awards. On the date of each annual meeting of stockholders of our company after the effective date of the policy, commencing with the 2027 annual meeting of stockholders, each non-employee director that continues to serve on our board of directors will automatically be granted RSUs with an aggregate grant date fair value of $200,000. The RSUs subject to the annual grant shall vest in full on the earlier of the first anniversary of the grant date or our next annual stockholder meeting, provided that such RSUs subject to the annual grant will in any case become fully vested on the date of our next annual stockholder meeting.
Non-employee director compensation limit. The cash and equity compensation that each non-employee director is eligible to receive under the policy will be subject to the director compensation limits set forth in the 2026 Plan.
EXECUTIVE COMPENSATION
Our named executive officers for the year ended December 31, 2025, consisting of our principal executive officer and the next two most highly compensated executive officers who were serving in such capacity as of December 31, 2025, were:
•John Serafini, our President and Chief Executive Officer and a member of our board of directors;
•Todd Probert, our President, U.S. Government Business; and
•Craig Searle, our Chief Financial Officer.
Summary Compensation Table
The following table sets forth information regarding all of the compensation awarded to or earned by or paid to our named executive officers during the fiscal years indicated below.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Name and Principal Position | | Year | | Salary ($) | | Stock Awards ($)(1) | Option Awards ($)(1) | | Non-Equity Incentive Plan Compensation ($)(2) | | All Other Compensation ($)(3) | | Total
($) |
John Serafini President, Chief Executive Officer and Director | | 2025 | | 485,100 | | | — | | 131,087 | | | 465,260 | | | 1,170 | | | 1,082,617 | |
| | 2024 | | 484,212 | | | — | | 68,820 | | | 203,280 | | | 7,380 | | | 763,692 | |
Todd Probert(4)(5) President, U.S. Government Business | | 2025 | | 348,173 | | | — | | 1,860,000 | | | 1,058,915 | | | 975 | | | 3,268,063 | |
Craig Searle(4)(6) Chief Financial Officer | | 2025 | | 316,412 | | | 356,929 | | 837,390 | | | 203,439 | | | 8,104 | | | 1,722,274 | |
______________
(1)Amounts reported represent the aggregate grant date fair value underlying RSU awards and option awards granted to each named executive officer during the indicated year under our 2015 Plan. Amounts reported in this column have been computed in accordance with FASB ASC, Topic 718. The amount reported for Mr. Serafini in 2025 represents the grant date fair value of his option award computed based on the probable outcome with respect to performance, which assumes the highest level of performance. The assumptions we use in calculating these amounts are included in Note 2 to our audited consolidated financial statements appearing at the end of this prospectus. These amounts does not reflect dollar amounts actually received by the named executive officer or the economic value that may be received by the named executive officer.
(2)The amount paid to each of Mr. Serafini and Searle is equal to a percentage of the executive’s target annual bonus pursuant to the applicable employment agreement and determined based on the achievement of pre-determined corporate and personal objectives. For Mr. Probert, amounts paid include (i) $287,623, which is equal to a percentage of the executive’s target annual bonus and determined based on the achievement of pre-determined corporate and personal objectives and (ii) $771,292 of commissions earned under an individualized sales commission plan. For more information, see the description of the annual bonus in “—Narrative to the Summary Compensation Table—Annual Bonus”.
(3)Amounts reported include $7,000 in company matching contributions under our 401(k) plan for Mr. Searle for the year ended December 31, 2025 and $6,210 in company matching contributions under our 401(k) plan for Mr. Serafini for the year ended December 31, 2024, as well as life insurance premium payments made by us on behalf of each named executive officer.
(4)Mr. Probert and Mr. Searle were not named executive officers for 2024, and accordingly, compensation for these individuals for 2024 is not included in the summary compensation table.
(5)Mr. Probert was hired as our President, U.S. Government Business in February 2025. The salary and non-equity incentive plan compensation amounts reported reflect the pro rata amounts earned by Mr. Probert for his service during 2025.
(6)Mr. Searle was promoted to Chief Financial Officer in September 2025, at which time his base salary was increased to $337,000.
Narrative to the Summary Compensation Table
Annual Base Salary
Our named executive officers receive a base salary to compensate them for services rendered to us. The base salary payable to each named executive officer is intended to provide a fixed component of compensation reflecting the executive’s skill set, experience, role and responsibilities. The base salary of our named executive officers is generally determined and approved by our board of directors in connection with the commencement of employment of the named executive officer and may be adjusted from time to time thereafter as the board of directors determines appropriate. The 2025 base salaries for our named executive officers at fiscal year end were as follows: (1) $485,100 for Mr. Serafini, (2) $348,173 for Mr. Probert, and (3) $316,412 for Mr. Searle. In connection with this offering, and as described below, we expect to enter into confirmatory offer letters with each named executive officer, which will provide for the following updated base salaries: (1) $750,000 for Mr. Serafini, (2) $650,000 for Mr. Probert, and (3) $400,000 for Mr. Searle.
Annual Bonus
In addition to base salaries, each of our named executive officers is eligible to receive an annual bonus of up to a percentage of the executive’s gross base salary based on pre-determined individual performance and company performance objectives, as determined by our board of directors. For the year ended December 31, 2025, cash bonus targets were 60% for Mr. Serafini, 50% for Mr. Probert and 40% for Mr. Searle. In connection with this offering, we expect to enter into confirmatory offer letters with each named executive officer, which will provide for the following updated cash bonus targets: 100% for Mr. Serafini, 50% for Mr. Probert, and 50% for Mr. Searle.
The corporate goals the board of directors established for 2025 related to company performance. In January 2026, our board of directors determined that the 2025 corporate goals were achieved at 185.5%. Our board of directors also assessed the performance of each executive and applied an individual performance multiplier to the corporate goal achievement. For the year ended December 31, 2025, the individual performance multiplier was 100% for each of Mr. Serafini, Mr. Probert and Mr. Searle.
In addition, in 2025, Mr. Probert participated in an individualized sales commission plan and earned quarterly commissions based on revenue from the U.S. Government business unit equal to an aggregate of $771,292. Mr. Probert was eligible to receive commissions with respect to U.S. Government business unit revenue in excess of a target amount of revenue at a base commission rate. The amount of commissions that Mr. Probert could receive was subject to a specified percentage of the target amount being achieved and was not capped.
Equity-Based Incentive Awards
Our equity-based incentive awards are designed to align our named executive officers’ interests with those of our stockholders and to retain and incentivize our named executive officers over the long-term. Our board of directors is responsible for approving equity grants. Vesting of equity awards is generally tied to continuous service with us and serves as an additional retention measure. Our named executive officers generally are awarded an initial new hire grant upon commencement of employment. Additional grants may occur periodically in order to specifically incentivize our named executive officers with respect to achieving certain corporate goals or to reward our named executive officers for exceptional performance.
Prior to this offering, we granted all equity awards pursuant to the 2015 Plan. Following this offering, we will grant equity incentive awards under the terms of the 2026 Plan. The terms of our equity plans are described under “—Equity Benefit Plans.” All options are granted with a per share exercise price equal to no less than the fair market value of a share of our common stock on the date of the grant of such award. Generally, our option awards and RSUs vest over a four-year period subject to the holder’s continuous
service to us. The terms of these awards are described under “—Outstanding Equity Awards as of December 31, 2025” below.
Outstanding Equity Awards as of December 31, 2025
The following table sets forth certain information regarding equity awards granted to our named executive officers that remain outstanding as of December 31, 2025.
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| | | | | | Option Awards(1) | | Stock Awards(1) |
| Name | | Vesting
Commencement
Date | | Grant Date | | Number of
securities underlying
unexercised
options
(#)
exercisable | | Number of
securities
underlying
unexercised
options
(#)
unexercisable | | Equity incentive plan awards: Number of securities underlying unexercised unearned options (#) | | Option exercise price
($) | | Option
expiration
date | | Number of shares or units of stock that have not vested (#) | | Market value of shares of units of stock that have not vested ($)(2) |
John Serafini | | 12/1/2016 | | 2/9/2017 | | 1,171,357 | | — | | — | | $ | 0.23 | | | 2/8/2027 | | | | |
| 12/1/2016 | | 2/9/2017 | | 233,272 | | — | | — | | $ | 0.23 | | | 2/8/2027 | | | | |
| 3/15/2018 | | 3/15/2018 | | 12,668 | | — | | — | | $ | 0.45 | | | 3/14/2028 | | | | |
| 12/3/2018 | | 11/27/2018 | | 135,663 | | — | | — | | $ | 0.77 | | | 11/26/2028 | | | | |
| 2/19/2019 | | 2/19/2019 | | 10,958 | | — | | — | | $ | 0.77 | | | 2/18/2029 | | | | |
| 9/19/2019 | | 9/19/2019 | | 659,000 | | — | | — | | $ | 2.29 | | | 9/18/2029 | | | | |
| 1/1/2021 | | 1/26/2021 | | 5,682 | | — | | — | | $ | 2.64 | | | 1/26/2031 | | | | |
| 4/9/2021 | | 6/9/2021 | | 284,802 | | — | | — | | $ | 2.78 | | | 6/8/2031 | | | | |
| 4/9/2021 | | 6/9/2021 | | 259,882 | | — | | 24,920 | | $ | 2.78 | | | 6/8/2031 | | | | |
| 1/1/2022(3) | | 4/20/2022 | | 291,595 | | 6,205 | | — | | $ | 4.25 | | | 4/19/2032 | | | | |
| 1/1/2022 (4) | | 4/20/2022 | | 197,292 | | 74,450 | | 26,058 | | $ | 4.25 | | | 4/19/2032 | | | | |
| 10/6/2023(3) | | 10/23/2023 | | 150,832 | | 127,628 | | — | | $ | 2.31 | | | 10/22/2033 | | | | |
| 10/6/2023(5) | | 10/23/2023 | | 69,615 | | 208,845 | | — | | $ | 2.31 | | | 10/22/2033 | | | | |
| 2/1/2025(6) | | 4/23/2025 | | — | | 72,826 | | — | | $ | 3.02 | | | 4/22/2035 | | | | |
Todd Probert | | 2/26/2025(7) | | 4/23/2025 | | — | | 1,000,000 | | — | | $ | 3.02 | | | 4/22/2035 | | | | |
Craig Searle | | 10/16/2023(7) | | 10/17/2023 | | 9,500 | | 27,500 | | — | | $ | 2.31 | | | 10/16/2033 | | | | |
| 1/6/2025(8) | | 4/23/2025 | | 13,750 | | 46,250 | | — | | $ | 3.02 | | | 04/22/2035 | | | | |
| 9/15/2025(8) | | 9/25/2025 | | 13,768 | | 206,532 | | — | | $ | 4.65 | | | 09/24/2035 | | | | |
| | | | 9/25/2025 | | | | | | | | | | | | 76,759(9) | | 876,588 |
______________
(1)All of the equity awards listed in the table above were granted under the 2015 Plan.
(2)Market value based on $11.42 per share, the fair market value of our common stock as of December 31, 2025, as determined by our board of directors.
(3)This stock option vests monthly in equal installments over 48 months beginning on the one-month anniversary of the vesting commencement date, subject to continued service through each applicable vesting date. The options are subject to the following vesting acceleration provisions: (i) upon a Change in Control (as defined in the 2015 Plan), the vesting of 25% of any then-unvested options will accelerate and vest in full and be exercisable; and (ii) if a Change in Control occurs and within three months before, or within 12 months after, Mr. Serafini’s service terminates due to an involuntary termination (not including death or Total and Permanent Disability) without Cause (each, as defined in the 2015 Plan), then, as of the date of termination of service, 100% of the options that have not yet become exercisable will become exercisable (collectively, “25% Single Trigger and Double Trigger Acceleration”).
(4)This stock option vests as follows, subject to continued service through each applicable vesting date: 20% of the shares underlying the stock option vested on February 1, 2023 upon the certification by the board of directors of the level of attainment of certain 2022 management and business objectives; 21.25% of the shares underlying the stock option vested on February 1, 2024 upon the certification by the board of directors of the level of attainment of certain 2023 management and business objectives; 25% of the shares underlying the stock option vested on February 1, 2025 upon the certification by the board of directors of the level of attainment of certain 2024 management and business objectives; and up to 25% of the shares underlying the stock option vest on February 1, 2026 upon the certification of the board of directors of the level of attainment of certain 2025
management and business objectives. Based on the board of directors’ assessment of performance against the specified objectives for each year, 80% of the applicable option tranche could be earned at the threshold level of performance, up to 100% of the applicable option tranche at the maximum level of performance, with the amount earned for performance between threshold and maximum determined based on linear interpolation. An option tranche would be forfeited if the board of directors determines that performance for the applicable year was below the threshold level. The options are subject to 25% Single Trigger and Double Trigger Acceleration.
(5)This stock option vests as follows, subject to continued service through each applicable vesting date: 25% of the shares underlying the stock option vested on February 1, 2025 upon the certification by the board of directors of the level of attainment of certain 2024 management and business objectives; up to 25% of the shares underlying the stock option vest on February 1, 2026 upon the certification by the board of directors of the level of attainment of certain 2025 management and business objectives; up to 25% of the shares underlying the stock option vest on February 1, 2027 upon the certification by the board of directors of the level of attainment of certain 2026 management and business objectives; and up to 25% of the shares underlying the stock option vest on February 1, 2028 upon the certification by the board of directors of the level of attainment of certain 2027 management and business objectives. Based on the board of directors’ assessment of performance against the specified objectives for each year, 80% of the applicable option tranche could be earned at the threshold level of performance, up to 100% of the applicable option tranche at the maximum level of performance, with the amount earned for performance between threshold and maximum determined based on linear interpolation. An option tranche would be forfeited if the board of directors determines that performance for the applicable year was below the threshold level. The options are subject to 25% Single Trigger and Double Trigger Acceleration.
(6)This stock option vests as follows, subject to continued service through each applicable vesting date: 100% of the shares underlying the stock option shall vest on February 1, 2026 upon the achievement of a specified amount of GAAP revenue for the year ended December 31, 2025. If such threshold is not achieved, 0% will vest and the stock option will be forfeited. The options are subject to 25% Single Trigger and Double Trigger Acceleration.
(7)This stock option vests over a period of four years, with 25% of the shares underlying the stock option vested on the one-year anniversary of the vesting commencement date, and the remaining shares subject to the stock option vesting in equal monthly installments for the 36 months thereafter, subject to continued service through each applicable vesting date. The options are subject to the following vesting acceleration provision: if a Change in Control occurs and within three months before, or within 12 months after the executive’s service terminates due to an involuntary termination (not including death or Total and Permanent Disability) without Cause, then, as of the date of termination of service, 100% of the options that have not yet become exercisable will become exercisable (“Double Trigger Acceleration”).
(8)This stock option vests monthly in equal installments over 48 months beginning on the vesting commencement date, subject to continued service through each applicable vesting date. The options are subject to Double Trigger Acceleration.
(9)The RSUs vest upon the satisfaction of both a service-based vesting condition and a liquidity event vesting condition. The service-based vesting condition will be satisfied as to 25% of the RSUs on an annual basis beginning on the 12-month anniversary of the vesting commencement date, subject to continued service through each vesting date.
Employment Arrangements
We are currently party to employment offer letters with each of our named executive officers. In connection with this offering, we expect to enter into confirmatory offer letters with each of these named executive officers, which provide for at-will employment without any specific term and set forth the named executive officer’s base salary, bonus eligibility, eligibility for employee benefits, and eligibility for severance benefits under the Company’s Severance Plan. Each of our named executive officers has executed our standard confidential information, inventions and non-solicitation agreement and will execute our updated form of agreement in connection with this offering. The key terms of the confirmatory employment offer letters with our named executive officers are described below.
John Serafini
On November 21, 2016, we entered into an offer letter with John Serafini to serve as our President and Chief Executive Officer (the “Serafini Agreement”). The Serafini Agreement also provides that Mr. Serafini will serve as a member of our board of directors. The Serafini Agreement provides that Mr. Serafini is eligible to receive an annual base salary (currently $485,100) and is eligible to receive an annual bonus of up to 60% of his base salary.
In connection with this offering, we expect to enter into a confirmatory offer letter with John Serafini, our President and Chief Executive Officer. The confirmatory offer letter provides for an annual base salary of $750,000 and an annual discretionary bonus at a target amount of 100% of Mr. Serafini’s base salary. The confirmatory offer letter also provides that Mr. Serafini is eligible for severance benefits under the terms of our Severance Plan, the terms of which are described below. The confirmatory offer letter supersedes all existing arrangements and understandings Mr. Serafini may have concerning his employment relationship with us, including (without limitation) Mr. Serafini’s offer letter with the Company dated November 21, 2016.
Mr. Serafini’s 2025 annual base salary at fiscal year end was $485,100, and his target bonus was 60% of his base salary.
On April 1, 2026, our board of directors approved a transaction bonus of $300,000 for Mr. Serafini, to be paid in connection with and at the time of the completion of this offering.
Todd Probert
In connection with this offering, we expect to enter into a confirmatory offer letter with Todd Probert, our Chief Operating Officer. The confirmatory offer letter provides for an annual base salary of $650,000 and an annual discretionary bonus at a target amount of 50% of his base salary. The confirmatory offer letter also provides that Mr. Probert will remain eligible to receive commissions with respect to revenue in excess of target amounts of revenue at a base commission rate as set forth in the applicable commission plan. He will also be eligible for severance benefits under the terms of our Severance Plan, the terms of which are described below. The confirmatory offer letter supersedes all existing arrangements and understandings Mr. Probert may have concerning his employment relationship with us, including (without limitation) Mr. Probert’s offer letter with the Company dated February 3, 2025.
Mr. Probert’s 2025 annual base salary at fiscal year end was $348,173 and his target bonus was 50% of his base salary.
Craig Searle
In connection with this offering, we expect to enter into a confirmatory offer letter with Craig Searle, our Chief Financial Officer. The confirmatory offer letter provides for an annual base salary of $400,000 and an annual discretionary bonus at a target amount of 50% of his base salary. The confirmatory offer letter also provides that Mr. Searle is eligible for severance benefits under the terms of our Severance Plan, the terms of which are described below. The confirmatory offer letter supersedes all existing arrangements and understandings Mr. Searle may have concerning his employment relationship with us, including (without limitation) Mr. Searle’s offer letter with the Company dated October 2, 2023 and amended on September 15, 2025.
Mr. Searle’s 2025 annual base salary at fiscal year end was $316,412 and his target bonus was 40% of his base salary.
On April 1, 2026, our board of directors approved a transaction bonus of $175,000 for Mr. Searle (which amount includes the additional 10% bonus eligibility upon the initial public offering from Mr. Searle’s offer letter), to be paid in connection with and at the time of the completion of this offering.
Potential Payments Upon Termination or Change in Control
Certain of the options granted to our named executive officers are subject to acceleration in the event of a Change in Control, as described above in the table entitled “—Outstanding Equity Awards as of December 31, 2025.”
Severance Plan and Participation Agreements
On April 1, 2026, our board of directors approved and adopted our Severance Plan (the “Severance Plan”), which will become effective upon completion of this offering and provides severance benefits to certain of our executives (the “Covered Executives”) in the event of termination of a Covered Executive’s employment with us other than for Cause (as defined in the Severance Plan), or as a result of such Covered Executive’s resignation for Good Reason (as defined in the Severance Plan) (any such termination, a “Covered Termination”).
All of our named executive officers are expected to be participants in the Severance Plan and will enter into Participation Agreements in connection with this offering. The terms of the Severance Plan described below will generally supersede any severance and change in control benefits set forth in any pre-existing employment agreement that each named executive officer has with us.
Under the terms of the Severance Plan, in the event of a Covered Termination outside of the Change in Control Period (as defined below), a Covered Executive will be eligible to receive as severance: (a) base salary continuation for the applicable number of months set forth in the Covered Executive’s Participation Agreement (12 months for Mr. Serafini and nine months for Messrs. Probert and Searle), paid in equal installments on our regular payroll schedule (the “Severance Period”); (b) a prorated target annual bonus determined by reference to the number of days elapsed in the year of the Covered Executive’s Covered Termination and assuming performance goals for such bonus were achieved at 100% of target; and (c) company-paid COBRA premiums for the Covered Executive’s continued coverage under our benefit plans, subject to timely COBRA election, for the Severance Period (or until the Covered Executive secures employment with similar benefits).
In the event such Covered Termination occurs within three months prior to and 12 months following a Change in Control (as defined in our 2026 Plan) (the “Change in Control Period”), the Covered Executive will be eligible for the following Change in Control severance benefits: (a) base salary continuation for the applicable number of months set forth in the Covered Executive’s Participation Agreement (18 months for Mr. Serafini and 12 months for Messrs. Probert and Searle), paid in in a lump sum (the “CIC Severance Period”); (b) an amount equal to the target annual bonus for the year of such Covered Termination multiplied by the applicable bonus multiple set forth in the Covered Executive’s Participation Agreement (1.5 times for Mr. Serafini and one times for Messrs. Probert and Searle); (c) a prorated target annual bonus determined by reference to the number of days elapsed in the year of the Covered Executive’s Covered Termination and assuming performance goals for such bonus were achieved at 100% of target; (d) each of the Covered Executive’s then-outstanding equity awards, other than performance awards, subject to time-based vesting shall accelerate and become vested and exercisable as to the percentage of the unvested shares subject to the equity award set forth in the Covered Executive’s Participation Agreement (100% for each of Messrs. Serafini, Probert, and Searle); and (e) Company-paid COBRA premiums for the Covered Executive’s continued coverage under the Company benefit plans, subject to timely COBRA election, for the CIC Severance Period (or until the Covered Executive secures employment with similar benefits).
As a condition to any Covered Executive receiving any severance benefits under the Severance Plan, such Covered Executive must sign, and allow to become effective, a separation agreement containing among other provisions, a release of all claims in favor of us and our subsidiaries and affiliates (the “Release”) and the Covered Executive’s continued compliance with any proprietary information and inventions agreement, and any restrictive covenant agreement between the Covered Executive and us.
Other Compensation and Benefits
Each of our named executive officers is eligible to participate in our employee benefit plans, including our medical, dental, vision, life, and long term disability plans, in each case on the same basis as all of our other employees. We pay the premiums for the medical, dental, vision, and life insurance for all of our employees, including our named executive officers. We do not provide perquisites or personal benefits to
our named executive officers, except in limited circumstances, including a Benefits Bank payment of $1,500, which can be used for the reimbursement of certain qualified expenses. In addition, we provide the opportunity to participate in a 401(k) plan to our employees, including each of our named executive officers, as discussed under “—401(k) Plan.”
401(k) Plan
Our named executive officers are eligible to participate in a defined contribution retirement plan that provides eligible U.S. employees with an opportunity to save for retirement on a tax-advantaged basis. Eligible employees may defer eligible compensation on a pre-tax or after-tax (“Roth”) basis, up to the statutorily prescribed annual limits on contributions under the Code. Individual contributions are allocated to each participant’s individual account and are then invested in selected investment alternatives according to the participants’ directions. The 401(k) plan is intended to be qualified under Section 401(a) of the Code with the 401(k) plan’s related trust intended to be tax exempt under Section 501(a) of the Code. As a tax-qualified retirement plan, contributions to the 401(k) plan (except for Roth contributions) and earnings on those contributions are not taxable to the employees until distributed from the 401(k) plan. We may elect, at our discretion, to make matching employee contributions.
Compensation Recovery Policy
Before the completion of this offering, we intend to adopt a Compensation Recovery Policy (the “Compensation Recovery Policy”). The Compensation Recovery Policy will be in accordance with the final rules regarding recovery of erroneously awarded executive officer compensation in connection with an accounting restatement, as adopted by the SEC in October 2022, and consistent with the corresponding listing standards (together, the “Clawback Rules”). Pursuant to the Compensation Recovery Policy, and subject to certain limited exceptions in the Clawback Rules, in the event we are required to restate our financial statements, we will be required to recoup erroneously awarded incentive-based compensation (as described in the Clawback Rules, including both cash and equity compensation) paid to any current or former executive officer (as described in the Clawback Rules) during the three completed fiscal years immediately prior to the date the accounting restatement was required. The amount recoverable will be the amount of any incentive-based compensation received by the executive officer based on the financial statements prior to the restatement that exceeds the amount that such executive officer would have received had the incentive-based compensation been determined based on the financial restatement.
Equity Plans
We believe that our ability to grant equity-based awards is a valuable compensation tool that enables us to attract, retain, and motivate our employees, consultants, and directors by aligning their financial interests with those of our stockholders. The principal features of our equity incentive plans are summarized below. These summaries are qualified in their entirety by reference to the actual text of the plans, which are filed as exhibits to the registration statement of which this prospectus is a part.
2015 Stock Incentive Plan
Our board of directors adopted and our stockholders approved the 2015 Plan in September 2015, and the 2015 Plan has subsequently been amended from time to time. The 2015 Plan permits the grant of stock options (including incentive stock options (“ISOs”) and nonstatutory stock options (“NSOs”), stock appreciation rights, restricted or unrestricted stock awards, phantom stock, RSUs, performance awards, other stock-based awards, or any combination of the foregoing). ISOs may be granted only to our employees and to any of our parent or subsidiary corporation’s employees. All other awards may be granted to employees, directors and consultants of ours and to any of our parent or subsidiary corporation’s employees or consultants. Once our 2026 Plan becomes effective, no further grants will be made under our 2015 Plan. However, the 2015 Plan will continue to govern the terms and conditions of the outstanding awards previously granted thereunder.
Share Reserve. As of December 31, 2025, we had 19,908,600 shares of our common stock reserved for issuance through grants under our 2015 Plan, of which 3,966,977 shares remained available for grant. As of December 31, 2025, options to purchase shares had been exercised; options to purchase 14,675,271 shares remained outstanding, with a weighted-average exercise price of $2.73 per share; and 182,786 RSUs were issued and outstanding. No new awards will be granted under the 2015 Plan after the offering. Any shares of our common stock remaining available for issuance under the 2015 Plan when the 2026 Plan became effective have become available for issuance under the 2026 Plan as shares of our common stock. In addition, any shares subject to options that expired or terminated prior to exercise or were withheld to satisfy tax withholding obligations related to an option or the exercise price of an option were added to the number of shares then available for issuance under the 2026 Plan.
Administration. Our board of directors or a committee or an officer delegated by our board of directors administers the 2015 Plan. Subject to the terms of the 2015 Plan, the administrator has the power to, among other things, select the eligible persons to whom and the time or times at which awards may be granted, determine the types of awards to be granted, determine the number of shares to be covered by or used for reference purposes for each award, impose such terms, limitations, restrictions and conditions upon any such award as the administrator shall deem appropriate, and modify, amend, extend or renew outstanding awards, or accept the surrender of outstanding awards and substitute new awards.
Stock Options. No stock option shall be an incentive stock option unless so designated by the administrator at the time of grant or in the grant agreement evidencing such stock option. Options intended to qualify as incentive stock options under Section 422 of the Code must have an exercise price at least equal to fair market value as of the date of grant. Nonstatutory stock options may be granted with an exercise price less than fair market value only if they are drafted to comply with Section 409A of the Code.
Restricted Stock Units. The Administrator may from time to time grant awards to eligible participants denominated in stock-equivalent units or RSUs in such amounts and on such terms and conditions as it shall determine. RSUs granted to a participant shall be credited to a bookkeeping reserve account solely for accounting purposes and shall not require a segregation of any of the company’s assets. An Award of RSUs may be settled in Common Stock, in cash, or in a combination of common stock and cash, as determined in the sole discretion of the Administrator. Except as otherwise provided in the applicable grant agreement, the grantee shall not have the rights of a stockholder with respect to any shares of common stock represented by a RSUs solely as a result of the grant of a RSU to the grantee.
Change in Control Transactions. In the event of any transaction resulting in a Change in Control (as defined in the 2015 Plan) of the company, outstanding stock options and other awards that are payable in or convertible into common stock under the 2015 Plan will terminate upon the effective time of such Change in Control unless provision is made in connection with the transaction for the continuation or assumption of such awards by, or for the substitution of equivalent awards, as determined in the sole discretion of the administrator, of, the surviving or successor entity or a parent thereof. In the event of such termination, the administrator may, in its sole discretion, permit the holders of stock options and other awards under the 2015 Plan, immediately before the Change in Control, to exercise or convert all portions of such stock options or other awards under the 2015 Plan that are then exercisable or convertible or which become exercisable or convertible upon or prior to the effective time of the Change in Control. The administrator may determine in its sole discretion that upon a Change in Control, each award outstanding shall be canceled in exchange for a payment with respect to each vested shares subject to such award in cash, stock, or other property with a fair market value equal to the fair market value of the consideration to be paid in the Change in Control recused by the exercise price per share of such award.
Plan Amendment or Termination. The board of directors may terminate, amend or modify the 2015 Plan or any portion thereof at any time. As discussed above, once our 2026 Plan becomes effective, no further grants will be made under our 2015 Plan. Except as otherwise determined by the board of directors, termination of the 2015 Plan shall not affect the administrator’s ability to exercise the powers
granted to it hereunder with respect to awards granted under the 2015 Plan prior to the date of such termination.
2026 Equity Incentive Plan
We expect our board of directors and our stockholders to approve the 2026 Plan prior to the completion of this offering. The 2026 Plan is a successor to and continuation of the 2015 Plan. The 2026 Plan will become effective on the date of this prospectus. The 2026 Plan came into existence upon its adoption by our board of directors, but no grants will be made under the 2026 Plan prior to its effectiveness. Once the 2026 Plan is effective, no further grants will be made under the 2015 Plan.
Awards. The 2026 Plan provides for the grant of ISOs within the meaning of Section 422 of the Code to employees, including employees of any parent or subsidiary, and for the grant of NSOs, stock appreciation rights, restricted stock awards, RSUs awards, performance awards and other forms of awards to employees, directors and consultants, including employees and consultants of our affiliates.
Authorized Shares. Initially, the maximum number of shares of our common stock that may be issued under the 2026 Plan after it becomes effective will not exceed shares of our common stock, which is the sum of (1) new shares of our common stock, plus (2) an additional number of shares of our common stock consisting of (A) shares that remain available for the issuance of stock awards under the 2015 Plan as of immediately prior to the time the 2026 Plan becomes effective and (B) shares subject to outstanding stock awards granted under the 2015 Plan that, on or after the 2026 Plan becomes effective, expire or otherwise terminate prior to exercise or settlement; are not issued because the stock award is settled in cash; are forfeited or repurchased because of the failure to vest; or are reacquired or withheld to satisfy a tax withholding obligation or the purchase or exercise price, if any, as such shares become available from time to time. In addition, the number of shares of our common stock reserved for issuance under our 2026 Plan will automatically increase on January 1 of each year, starting on January 1, 2027 through and including January 1, 2036, in an amount equal to (1) % of the total number of shares of our common stock outstanding on the last day of the preceding year, or (2) a lesser number of shares of our common stock determined by our board of directors prior to the date of the increase. The maximum number of shares of our common stock that may be issued on the exercise of ISOs under our 2026 Plan is shares.
Shares subject to stock awards granted under the 2026 Plan that expire or terminate without being exercised or otherwise issued in full or that are paid out in cash rather than in shares do not reduce the number of shares available for issuance under the 2026 Plan. Shares withheld under a stock award to satisfy the exercise, strike or purchase price of a stock award or to satisfy a tax withholding obligation do not reduce the number of shares available for issuance under the 2026 Plan. If any shares of our common stock issued pursuant to a stock award are forfeited back to or repurchased or reacquired by us (1) because of the failure to vest, (2) to satisfy the exercise, strike or purchase price, or (3) to satisfy a tax withholding obligation in connection with an award, the shares that are forfeited or repurchased or reacquired will revert to and again become available for issuance under the 2026 Plan.
Plan Administration. Our board of directors, or a duly authorized committee of our board of directors, will administer the 2026 Plan and is referred to as the “plan administrator” herein. Under the 2026 Plan, our board of directors has the authority to determine award recipients, grant dates, the numbers and types of stock awards to be granted, the applicable fair market value, and the provisions of each stock award, including the period of exercisability and the vesting schedule applicable to a stock award. The plan administrator may also delegate to one or more persons or bodies the authority to do one or more of the following: (1) designate recipients (other than officers) to receive specified awards provided that no person or body may be delegated authority to grant an award to themselves; (2) determine the number of shares subject to such awards; and (3) determine the terms of such awards.
Under the 2026 Plan, the board of directors also generally has the authority to effect, with the consent of any materially adversely affected participant, (1) the reduction of the exercise, purchase, or strike price
of any outstanding option or stock appreciation right; (2) the cancellation of any outstanding option or stock appreciation right and the grant in substitution therefore of other awards, cash, or other consideration; or (3) any other action that is treated as a repricing under GAAP.
Stock Options. ISOs and NSOs are granted under stock option agreements adopted by the plan administrator. The plan administrator determines the exercise price for stock options, within the terms and conditions of the 2026 Plan, provided that the exercise price of a stock option generally cannot be less than 100% of the fair market value of our common stock on the date of grant. Options granted under the 2026 Plan vest at the rate specified in the stock option agreement as determined by the plan administrator.
The plan administrator determines the term of stock options granted under the 2026 Plan, up to a maximum of 10 years. Unless the terms of an optionholder’s stock option agreement provide otherwise, if an optionholder’s service relationship with us or any of our affiliates ceases for any reason other than disability, death, or cause, the optionholder may generally exercise any vested options for a period of three months following the cessation of service. This period may be extended in the event that exercise of the option is prohibited by applicable securities laws. If an optionholder’s service relationship with us or any of our affiliates ceases due to death, or an optionholder dies within a certain period following cessation of service, the optionholder or a beneficiary may generally exercise any vested options for a period of 18 months following the date of death. If an optionholder’s service relationship with us or any of our affiliates ceases due to disability, the optionholder may generally exercise any vested options for a period of 12 months following the cessation of service. In the event of a termination for cause, options generally terminate upon the termination date. In no event may an option be exercised beyond the expiration of its term.
Acceptable consideration for the purchase of our common stock issued upon the exercise of a stock option will be determined by the plan administrator and may include (1) cash, check, bank draft or money order, (2) a broker-assisted cashless exercise, (3) the tender of shares of our common stock previously owned by the optionholder, (4) a net exercise of the option if it is an NSO or (5) other legal consideration approved by the plan administrator.
Unless the plan administrator provides otherwise, options and stock appreciation rights generally are not transferable except by will or the laws of descent and distribution. Subject to approval of the plan administrator or a duly authorized officer, an option may be transferred pursuant to a domestic relations order, official marital settlement agreement or other divorce or separation instrument.
Tax Limitations on ISOs. The aggregate fair market value, determined at the time of grant, of our common stock with respect to ISOs that are exercisable for the first time by an award holder during any calendar year under all of our stock plans may not exceed $100,000. Options or portions thereof that exceed such limit will generally be treated as NSOs. No ISO may be granted to any person who, at the time of the grant, owns or is deemed to own stock possessing more than 10% of our total combined voting power or that of any of our parent or subsidiary corporations unless (1) the option exercise price is at least 110% of the fair market value of the stock subject to the option on the date of grant, and (2) the term of the ISO does not exceed five years from the date of grant.
Restricted Stock Unit Awards. RSU awards are granted under RSU award agreements adopted by the plan administrator. RSU awards may be granted in consideration for any form of legal consideration that may be acceptable to our board of directors and permissible under applicable law. An RSU award may be settled by cash, delivery of shares of our common stock, a combination of cash and shares of our common stock as determined by the plan administrator, or in any other form of consideration set forth in the RSU award agreement. Additionally, dividend equivalents may be credited in respect of shares covered by an RSU award. Except as otherwise provided in the applicable award agreement, RSU awards that have not vested will be forfeited once the participant’s continuous service ends for any reason.
Restricted Stock Awards. Restricted stock awards are granted under restricted stock award agreements adopted by the plan administrator. A restricted stock award may be awarded in consideration for cash, check, bank draft or money order, past services to us, or any other form of legal consideration that may be acceptable to our board of directors and permissible under applicable law. The plan administrator determines the terms and conditions of restricted stock awards, including vesting and forfeiture terms. If a participant’s service relationship with us ends for any reason, we may receive any or all of the shares of common stock held by the participant that have not vested as of the date the participant terminates service with us through a forfeiture condition or a repurchase right.
Stock Appreciation Rights. Stock appreciation rights are granted under stock appreciation right agreements adopted by the plan administrator. The plan administrator determines the strike price for a stock appreciation right, which generally cannot be less than 100% of the fair market value of our common stock on the date of grant. A stock appreciation right granted under the 2026 Plan vests at the rate specified in the stock appreciation right agreement as determined by the plan administrator. Stock appreciation rights may be settled in cash or shares of our common stock or in any other form of payment, as determined by our board of directors and specified in the stock appreciation right agreement.
The plan administrator determines the term of stock appreciation rights granted under the 2026 Plan, up to a maximum of 10 years. If a participant’s service relationship with us or any of our affiliates ceases for any reason other than cause, disability, or death, the participant may generally exercise any vested stock appreciation right for a period of three months following the cessation of service. This period may be further extended in the event that exercise of the stock appreciation right following such a termination of service is prohibited by applicable securities laws. If a participant’s service relationship with us, or any of our affiliates, ceases due to disability or death, or a participant dies within a certain period following cessation of service, the participant or a beneficiary may generally exercise any vested stock appreciation right for a period of 12 months in the event of disability and 18 months in the event of death. In the event of a termination for cause, stock appreciation rights generally terminate immediately upon the occurrence of the event giving rise to the termination of the individual for cause. In no event may a stock appreciation right be exercised beyond the expiration of its term.
Performance Awards. The 2026 Plan permits the grant of performance awards that may be settled in stock, cash or other property. Performance awards may be structured so that the stock or cash will be issued or paid only following the achievement of certain pre-established performance goals during a designated performance period. Performance awards that are settled in cash or other property are not required to be valued in whole or in part by reference to, or otherwise based on, our common stock.
The performance goals may be based on any measure of performance selected by our board of directors. The performance goals may be based on company-wide performance or performance of one or more business units, divisions, affiliates, or business segments and may be either absolute or relative to the performance of one or more comparable companies or the performance of one or more relevant indices. Unless specified otherwise by our board of directors when the performance award is granted, our board of directors will appropriately make adjustments in the method of calculating the attainment of performance goals as follows: (1) to exclude restructuring and/or other nonrecurring charges; (2) to exclude exchange rate effects; (3) to exclude the effects of changes to GAAP; (4) to exclude the effects of any statutory adjustments to corporate tax rates; (5) to exclude the effects of items that are “unusual” in nature or occur “infrequently” as determined under GAAP; (6) to exclude the dilutive effects of acquisitions or joint ventures; (7) to assume that any portion of our business which is divested achieved performance objectives at targeted levels during the balance of a performance period following such divestiture; (8) to exclude the effect of any change in the outstanding shares of our common stock by reason of any stock dividend or split, stock repurchase, reorganization, recapitalization, merger, consolidation, spin-off, combination or exchange of shares or other similar corporate change, or any distributions to common stockholders other than regular cash dividends; (9) to exclude the effects of stock based compensation and the award of bonuses under our bonus plans; (10) to exclude costs incurred in connection with potential acquisitions or divestitures that are required to be expensed under GAAP; and
(11) to exclude the goodwill and intangible asset impairment charges that are required to be recorded under GAAP.
Other Stock Awards. The plan administrator may grant other awards based in whole or in part by reference to our common stock. The plan administrator will set the number of shares under the stock award (or cash equivalent) and all other terms and conditions of such awards.
Non-Employee Director Compensation Limit. The aggregate value of all compensation granted or paid to any non-employee director with respect to any calendar year, including awards granted and cash fees paid by us to such non-employee director, will not exceed (1) $ in total value or (2) if such non-employee director is first appointed or elected to our board of directors during such calendar year, $ in total value.
Changes to Capital Structure. In the event there is a specified type of change in our capital structure, such as a stock split, reverse stock split, or recapitalization, appropriate adjustments will be made to (1) the class and maximum number of shares reserved for issuance under the 2026 Plan, (2) the class and maximum number of shares by which the share reserve may increase automatically each year, (3) the class and maximum number of shares that may be issued on the exercise of ISOs, and (4) the class and number of shares and exercise price, strike price, or purchase price, if applicable, of all outstanding stock awards.
Corporate Transactions. The following applies to stock awards under the 2026 Plan in the event of a corporate transaction (as defined in the 2026 Plan), unless otherwise provided in a participant’s stock award agreement or other written agreement with us or one of our affiliates or unless otherwise expressly provided by the plan administrator at the time of grant.
In the event of a corporate transaction, any stock awards outstanding under the 2026 Plan may be assumed, continued or substituted for by any surviving or acquiring corporation (or its parent company) and any reacquisition or repurchase rights held by us with respect to the stock award may be assigned to our successor (or its parent company). If the surviving or acquiring corporation (or its parent company) does not assume, continue or substitute for such stock awards, then (i) with respect to any such stock awards that are held by participants whose continuous service has not terminated prior to the effective time of the corporate transaction, or current participants, the vesting (and exercisability, if applicable) of such stock awards will be accelerated in full (or, in the case of performance awards with multiple vesting levels depending on the level of performance, vesting will accelerate at 100% of the target level) to a date prior to the effective time of the corporate transaction (contingent upon the effectiveness of the corporate transaction) and such stock awards will terminate if not exercised (if applicable) at or prior to the effective time of the corporate transaction, and any reacquisition or repurchase rights held by us with respect to such stock awards will lapse (contingent upon the effectiveness of the corporate transaction) and (ii) any such stock awards that are held by persons other than current participants will terminate if not exercised (if applicable) prior to the effective time of the corporate transaction, except that any reacquisition or repurchase rights held by us with respect to such stock awards will not terminate and may continue to be exercised notwithstanding the corporate transaction.
In the event a stock award will terminate if not exercised prior to the effective time of a corporate transaction, the plan administrator may provide, in its sole discretion, that the holder of such stock award may not exercise such stock award but instead will receive a payment equal in value to the excess (if any) of (i) the per share amount payable to holders of common stock in connection with the corporate transaction, over (ii) any per share exercise price payable by such holder, if applicable. In addition, any escrow, holdback, earn out or similar provisions in the definitive agreement for the corporate transaction may apply to such payment to the same extent and in the same manner as such provisions apply to the holders of our common stock.
Under the 2026 Plan, a corporate transaction is generally defined as the consummation of: (1) a sale of all or substantially all of our assets, (2) the sale or disposition of at least 50% of our outstanding
securities, (3) a merger or consolidation where we do not survive the transaction, or (4) a merger or consolidation where we do survive the transaction but the shares of our common stock outstanding immediately before such transaction are converted or exchanged into other property by virtue of the transaction.
Change in Control. Awards granted under the 2026 Plan may be subject to acceleration of vesting and exercisability upon or after a change in control as may be provided in the applicable stock award agreement or in any other written agreement between us or any affiliate and the participant, but in the absence of such provision, no such acceleration will automatically occur.
Under the 2026 Plan, a change in control is generally defined as: (1) the acquisition by any person or company of more than 50% of the combined voting power of our then outstanding stock; (2) a consummated merger, consolidation or similar transaction in which our stockholders immediately before the transaction do not own, directly or indirectly, more than 50% of the combined voting power of the surviving entity (or the parent of the surviving entity) in substantially the same proportions as their ownership immediately prior to such transaction; (3) a consummated sale, lease, exclusive license or other disposition of all or substantially all of our assets other than to an entity more than 50% of the combined voting power of which is owned by our stockholders in substantially the same proportions as their ownership of our outstanding voting securities immediately prior to such transaction; or (4) when a majority of our board of directors becomes comprised of individuals who were not serving on our board of directors on the date the 2026 Plan was adopted by the board of directors, or the incumbent board, or whose nomination, appointment, or election was not approved by a majority of the incumbent board still in office.
Plan Amendment or Termination. Our board of directors has the authority to amend, suspend, or terminate the 2026 Plan at any time, provided that such action does not materially impair the existing rights of any participant without such participant’s written consent. Certain material amendments also require the approval of our stockholders. No ISOs may be granted after the tenth anniversary of the date our board of directors adopts the 2026 Plan. No stock awards may be granted under the 2026 Plan while it is suspended or after it is terminated.
2026 Employee Stock Purchase Plan
We expect our board of directors and our stockholders will approve the ESPP prior to the completion of this offering. The ESPP will become effective on the date of this prospectus. The purpose of the ESPP is to secure the services of new employees, to retain the services of existing employees and to provide incentives for such individuals to exert maximum efforts toward our success and that of our affiliates. The ESPP will be designed to allow eligible U.S. employees to purchase our common stock in a manner that may qualify for favorable tax treatment under Section 423 of the Code.
Share Reserve. Following this offering, the ESPP will authorize the issuance of shares of our common stock pursuant to purchase rights granted to our employees or to employees of any of our designated affiliates. The number of shares of our common stock reserved for issuance will automatically increase on of each year, from through , by the lesser of (1) % of the total number of shares of our common stock outstanding on the last day of the preceding calendar year and (2) shares of our common stock; provided, that prior to the date of any such increase, our board of directors may determine that such increase will be less than the amount set forth in clauses (1) and (2).
Administration. Our board of directors intends to delegate concurrent authority to administer the ESPP to our compensation committee. The ESPP is implemented through a series of offerings under which eligible employees are granted rights to purchase shares of our common stock on specified dates during such offerings. Under the ESPP, we may specify offerings with durations of not more than 27 months and may specify shorter purchase periods within each offering. Each offering will have one or
more purchase dates on which shares of our common stock will be purchased for employees participating in the offering. An offering under the ESPP may be terminated under certain circumstances.
Payroll Deductions. Generally, all regular employees, including executive officers, employed by us or by any of our designated affiliates, may participate in the ESPP and may contribute, normally through payroll deductions, up to a specified maximum percentage of their earnings (as determined by the board of directors with respect to each offering) for the purchase of our common stock under the ESPP. Unless otherwise determined by our board of directors, common stock will be purchased for the accounts of employees participating in the ESPP at a price per share equal to the lower of (a) 85% of the fair market value of a share of our common stock on the first trading date of an offering or (b) 85% of the fair market value of a share of our common stock on the date of purchase.
Limitations. Employees may have to satisfy one or more of the following service requirements before participating in the ESPP, as determined by our board of directors, including: (1) being customarily employed for more than twenty hours per week; (2) being customarily employed for more than five months per calendar year; or (3) continuous employment with us or one of our affiliates for a period of time (not to exceed two years). No employee may purchase shares under the ESPP at a rate in excess of $25,000 worth of our common stock based on the fair market value per share of our common stock at the beginning of an offering for each year such a purchase right is outstanding. Finally, no employee will be eligible for the grant of any purchase rights under the ESPP if immediately after such rights are granted, such employee has voting power over 5% or more of our outstanding capital stock measured by vote or value pursuant to Section 424(d) of the Code.
Changes to Capital Structure. In the event that there occurs a change in our capital structure through such actions as a stock split, merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, large nonrecurring cash dividend, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or similar transaction, the board of directors will make appropriate adjustments to (1) the number of shares reserved under the ESPP, (2) the maximum number of shares by which the share reserve may increase automatically each year, (3) the number of shares and purchase price of all outstanding purchase rights and (4) the number of shares that are subject to purchase limits under ongoing offerings.
Corporate Transactions. In the event of a corporate transaction (as defined in the ESPP), any then-outstanding rights to purchase our stock under the ESPP may be assumed, continued or substituted for by any surviving or acquiring entity (or its parent company). If the surviving or acquiring entity (or its parent company) elects not to assume, continue or substitute for such purchase rights, then the participants’ accumulated payroll contributions will be used to purchase shares of our common stock within 10 business days prior to such corporate transaction and such purchase rights will terminate immediately after such purchase.
Under the ESPP, a corporate transaction is generally the consummation of: (1) a sale of all or substantially all of our assets; (2) the sale or disposition of more than 50% of our outstanding securities; (3) a merger or consolidation where we do not survive the transaction; and (4) a merger or consolidation where we do survive the transaction but the shares of our common stock outstanding immediately before such transaction are converted or exchanged into other property by virtue of the transaction.
ESPP Amendments, Termination. Our board of directors has the authority to amend or terminate our ESPP, provided that except in certain circumstances such amendment or termination may not materially impair any outstanding purchase rights without the holder’s consent. We will obtain stockholder approval of any amendment to our ESPP, as required by applicable law or listing requirements.
Limitation of Liability and Indemnification
Our amended and restated certificate of incorporation that will become effective immediately prior to the closing of this offering limits the liability of our current and former directors and officers for monetary damages to the fullest extent permitted by Delaware law. Delaware law provides that directors and
officers of a corporation will not be personally liable for monetary damages for any breach of fiduciary duties as directors or officers, except liability for:
•any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders;
•any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
•as a director, unlawful payments of dividends or unlawful stock repurchases or redemptions;
•as an officer, derivative claims brought on behalf of the corporation by a stockholder; or
•any transaction from which the director or officer derived an improper personal benefit.
This limitation of liability does not apply to liabilities arising under federal securities laws and does not affect the availability of equitable remedies such as injunctive relief or recission.
Our amended and restated certificate of incorporation will authorize us to indemnify our directors, officers, employees, and other agents to the fullest extent permitted by Delaware law. Our amended and restated bylaws will provide that we are required to indemnify our directors and officers to the fullest extent permitted by Delaware law and may indemnify our other employees and agents. Our amended and restated bylaws will also provide that, on satisfaction of certain conditions, we will advance expenses incurred by a director or officer in advance of the final disposition of any action or proceeding and permit us to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in that capacity regardless of whether we would otherwise be permitted to indemnify him or her under the provisions of Delaware law. We have entered and expect to continue to enter into agreements to indemnify our directors, executive officers, and other employees as determined by the board of directors. With certain exceptions, these agreements provide for indemnification for related expenses including attorneys’ fees, judgments, fines, and settlement amounts incurred by any of these individuals in any action or proceeding.
We believe that these amended and restated certificate of incorporation and amended and restated bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. We also maintain customary directors’ and officers’ liability insurance.
The limitation of liability and indemnification provisions in our amended and restated certificate of incorporation and amended and restated bylaws may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against our directors and officers, even though an action, if successful, might benefit us and other stockholders. Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage awards against directors and officers as required by these indemnification provisions.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the Securities Act), may be permitted for directors, executive officers, or persons controlling us, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
At present, there is no pending litigation or proceeding involving any of our directors, executive officers or employees for which indemnification is sought, and we are not aware of any threatened litigation that may result in claims for indemnification.
Rule 10b5-1 Sales Plans
Our directors and executive officers may adopt written plans, known as Rule 10b5-1 plans, in which they will contract with a broker to buy or sell shares of our common stock on a periodic basis. Under a Rule 10b5-1 plan, a broker executes trades pursuant to parameters established by the director or
executive officer when entering into the plan, without further direction from them. The director or executive officer may amend a Rule 10b5-1 plan in some circumstances and may terminate a Rule 10b5-1 plan at any time. Our directors and executive officers also may buy or sell additional shares of common stock outside of a Rule 10b5-1 plan when they are not in possession of material nonpublic information subject to compliance with the terms of our insider trading policy and any applicable 10b5-1 guidelines.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
The following is a description of transactions since January 1, 2023 to which we have been a participant in which the amount involved exceeds the lesser of $120,000 or one percent of the average of our total assets at year end for the last two completed fiscal years, and in which any of our directors, executive officers or holders of more than 5% of our voting securities, or any members of their immediate family, had or will have a direct or indirect material interest, other than compensation arrangements which are described under “Executive Compensation.”
Private Placements of Our Securities
Series D-1 Preferred Stock Financing and Warrants
In July 2023, we entered into a Series D-1 preferred stock purchase agreement (the “Series D-1 Purchase Agreement”) with certain investors, including beneficial owners of greater than 5% of our capital stock, pursuant to which we issued and sold to such investors an aggregate of 4,966,566 shares of our Series D-1 preferred stock, par value $0.0001 per share (the “Series D-1 Preferred Stock”), at a purchase price of $11.1747 per share for aggregate gross proceeds of $55.5 million. In July 2023, we issued and sold an additional 223,719 shares of Series D-1 Preferred Stock pursuant to the Series D-1 Purchase Agreement for gross proceeds of $2.5 million, and in September 2023, we issued and sold an additional 894,876 shares of Series D-1 Preferred Stock pursuant to the Series D-1 Purchase Agreement for gross proceeds of $10.0 million.
In connection with the issuance and sale of our Series D-1 Preferred Stock, we issued to certain investors, including beneficial owners of greater than 5% of our capital stock, warrants including (i) the Series D-1 At-the-Money Warrants, with an exercise price per share equal to $11.1747, (ii) the Series D-1 Merger Warrants, with an exercise price per share equal to $0.01, and (iii) the Series D-1 Penny Warrants, with an exercise price per share equal to $0.01.
The table below sets forth the aggregate number of shares of Series D-1 Preferred Stock and Series D-1 Warrants issued to our related parties:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Name | | Series D-1 Preferred Stock (#) | | Aggregate Purchase Price ($) | | Series D-1 Penny Warrant (#) | | Series D-1 At-the- Money Warrant (#) | | Series D-1 Merger Warrant (#) |
NightDragon Growth I, L.P.(1) | | 278,635 | | 3,113,663 | | | 85,173 | | 13,520 | | 33,799 |
Entities affiliated with Razor’s Edge Ventures II, LLC(2) | | 357,950 | | 3,999,984 | | | 109,545 | | 17,387 | | 16,300 |
Entities affiliated with Insight Partners(3) | | 501,132 | | 5,600,000 | | | 153,368 | | 24,344 | | 60,860 |
______________
(1)Represents shares of Series D-1 Preferred Stock purchased by NightDragon Growth I, L.P. David G. DeWalt, a member of our board of directors, is an executive officer of NightDragon Growth I, L.P. NightDragon Growth I, L.P. beneficially owns more than 5% of our capital stock prior to this offering. See the section titled “Principal Stockholders” for additional information.
(2)Represents shares of Series D-1 Preferred Stock purchased by Razor’s Edge Fund II, LP, Razor’s Edge Fund II-A, LP and REII Sidecar 2, LLC, which are affiliated with Razor’s Edge Ventures II, LLC. Mark Spoto, the Chairman of our board of directors, is a Managing Partner of Razor’s Edge Ventures II, LLC. Entities affiliated with Razor’s Edge Ventures II, LLC beneficially own more than 5% of our capital stock prior to this offering. See the section titled “Principal Stockholders” for additional information.
(3)Represents shares of Series D-1 Preferred Stock purchased by Insight Partners (Cayman) XII, L.P., Insight Partners (Delaware) XII, L.P., Insight Partners (EU) XII, S.C.Sp, Insight Partners XII (Co-Investors) (B), L.P., Insight Partners XII (Co-Investors), L.P. and Insight Partners XII, L.P. (collectively, “Insight Partners”). Insight Partners beneficially owns more than 5% of our capital stock prior to this offering. See the section titled “Principal Stockholders” for additional information.
Series E Preferred Stock Financing
In December 2025, the Company entered into the Series E Purchase Agreement with certain investors, pursuant to which it agreed to issue and sell to such investors an aggregate of 4,242,048 shares of Series E Preferred Stock at the Series E Per Share Price, resulting in aggregate gross proceeds of $80.0 million.
The table below sets forth the aggregate number of shares of Series E Preferred Stock to be issued to our related parties under the Series E Purchase Agreement:
| | | | | | | | | | | | | | |
Name | | Series E Preferred Stock (#) | | Aggregate Purchase Price ($) |
NightDragon Growth I, L.P.(1) | | 1,272,302 | | | $ | 23,999,979.73 | |
______________
(1)Represents shares of Series E Preferred Stock purchased by NightDragon Growth I, L.P. and NightDragon Growth II, L.P. (collectively, “NightDragon”). David G. DeWalt, a member of our board of directors, is an executive officer of entities affiliated with NightDragon. Entities affiliated with NightDragon beneficially own more than 5% of our capital stock prior to this offering. See the section titled “Principal Stockholders” for additional information.
Secondary Transactions
Pursuant to certain agreements with our stockholders, including our right of first refusal and co-sale agreement, dated as of December 18, 2025, our bylaws, as amended to date, and our equity incentive plans and the equity award documentation thereunder, as amended to date, certain shares of our capital stock are subject to transfer restrictions and/or a right of first refusal in our favor. Since January 1, 2026, in transactions involving related parties and in excess of $120,000, we have waived such rights of first refusal or transfer restrictions in connection with the purchase and sale of (i) 823,031 shares of our common stock, (ii) 3,463,301 shares of our Series A-1 Preferred Stock, (iii) 7,117,212 shares of our Series A-2 Preferred Stock, (iv) 1,274,095 shares of our Series A-3 Preferred Stock, (v) 3,307,097 shares of our Series B Preferred Stock, (vi) 1,064,096 shares of our Series C Preferred Stock and (vii) 425,752 shares of our Series D Preferred Stock. While we were not a participant in such transactions, certain of our directors, officers and holders of more than 5% of our capital stock, including John Serafini, Chris Herndon, Janine Sweeney, David G. DeWalt, Arthur Money, James “Sandy” Winnefeld and Insight Partners, purchased shares in such transactions, and certain of our directors, officers and holders of more than 5% of our capital stock, including Craig Searle, Chris Herndon, Alex Fox, and Razor’s Edge Ventures, LLC, sold shares in such transactions.
Investors’ Rights Agreement, Voting Agreement, Right of First Refusal and Co-Sale Agreement, and Side Letter Agreement
In connection with our convertible preferred stock financings, we entered into investors’ rights, voting, right of first refusal and co-sale and side letter agreements containing registration rights, information rights, rights of first offer, voting rights and rights of first refusal, among other things, with certain holders of our capital stock, including entities affiliated with Razor’s Edge Ventures II, LLC, NightDragon, GIC Pte Ltd., Insight Partners, LLC and John Serafini. These agreements will terminate upon the closing of this offering, except for the registration rights granted under our investors’ rights agreement, as more fully described in the section titled “Description of Capital Stock—Registration Rights.” See also the section titled “Principal Stockholders” for additional information regarding beneficial ownership of our capital stock.
Directed Share Program
At our request, the underwriters have reserved for sale, at the initial public offering price, up to shares of our common stock, or 5% of the shares being offered by this prospectus, to certain of our directors, officers, employees and others as part of a directed share program. The directed share program
will not limit the ability of our directors, officers and their family members, or holders of more than 5% of our capital stock, to purchase more than $120,000 in value of our common stock. We do not currently know the extent to which these related persons will participate in our directed share program, if at all, or the extent to which they will purchase more than $120,000 in value of our common stock. See “Underwriting—Directed Share Program” for additional information.
Employment Arrangements and Equity Grants
We have entered into employment agreements or offer letter agreements with certain of our executive officers. For more information regarding our employment agreements with our named executive officers, see the section titled “Executive Compensation.”
We have also granted stock options and RSUs to certain of our executive officers and directors. For a description of these option and RSU grants, see the sections titled “Management—Non-Employee Director Compensation” and “Executive Compensation.”
Indemnification Agreements
Our amended and restated certificate of incorporation that will be in effect upon the closing of this offering will contain provisions limiting the liability of directors, and our amended and restated bylaws will provide that we will indemnify each of our directors to the fullest extent permitted under Delaware law. Our amended and restated certificate of incorporation and amended and restated bylaws will also provide our board of directors with discretion to indemnify our officers, employees and other agents when determined appropriate by the board.
We have entered into indemnification agreements with each of our directors. In addition, in connection with and prior to the closing of this offering, we expect to enter into indemnification agreements with each of our executive officers and new indemnification agreements with each of our directors. For more information regarding these agreements, see the section titled “Executive Compensation—Limitations of Liability and Indemnification.”
Related Person Transaction Policy
Prior to this offering, we have not had a formal policy regarding approval of transactions with related parties. In connection with this offering, we will adopt a related person transaction policy that sets forth our policies and procedures regarding the identification, review, consideration and approval or ratification of related person transactions, which policy will become effective immediately upon the execution of the underwriting agreement for this offering. For purposes of our policy only, a related person transaction will be a transaction, arrangement or relationship, or any series of similar transactions, arrangements or relationships, in which we and any related person are, were or will be participants in which the amount involved exceeds $120,000, or, if less, 1% of the average of our total assets for the last two completed fiscal years. Transactions involving compensation for services provided to us as an employee or director will not be covered by this policy. A related person will be any executive officer, director, nominee to become a director or a beneficial owner of more than 5% of any class of our voting securities, including any of their immediate family members and entities wholly-owned or controlled by such persons.
Under the policy, if a transaction has been identified as a related person transaction, including any transaction that was not a related person transaction when originally consummated or any transaction that was not initially identified as a related person transaction prior to consummation, our management must present information regarding the related person transaction to our audit committee, or, if audit committee approval would be inappropriate, to another independent body of our board of directors, for review, consideration and approval or ratification. The presentation must include a description of, among other things, all of the parties thereto, the material facts, the interests, direct and indirect, of the related persons, the benefits to us of the transaction and whether the transaction is on terms that are comparable to the terms available to or from, as the case may be, an unrelated third party or to or from employees generally. Under the policy, we will collect information that we deem reasonably necessary from each
director, executive officer and, to the extent feasible, significant stockholder to enable us to identify any existing or potential related-person transactions and to effectuate the terms of the policy. In addition, under our Code of Conduct that we expect to adopt prior to the closing of this offering, our employees and directors will have an affirmative responsibility to disclose any transaction or relationship that reasonably could be expected to give rise to a conflict of interest. In considering related person transactions, our audit committee or other independent body of our board of directors, will take into account the relevant available facts and circumstances including:
•the risks, costs and benefits to us;
•the impact on a director’s independence in the event that the related person is a director, immediate family member of a director or an entity with which a director is affiliated;
•the availability of other sources for comparable services or products; and
•the terms available to or from, as the case may be, unrelated third parties or to or from employees generally.
The policy will require that, in determining whether to approve, ratify or reject a related person transaction, our audit committee, or other independent body of our board of directors, 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 or other independent body of our board of directors, determines in the good faith exercise of its discretion.
All of the transactions described in this section were entered into prior to the adoption of this policy. Although we have not had a written policy for the review and approval of transactions with related persons, our board of directors has historically reviewed and approved any transaction where a director or officer had a financial interest, including the transactions described above. Prior to approving such a transaction, the material facts as to a director’s or officer’s relationship or interest in the agreement or transaction were disclosed to our board of directors. Our board of directors took this information into account when evaluating the transaction and in determining whether such transaction was fair to us and in the best interest of all our stockholders.
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information with respect to the beneficial ownership of our common stock as of March 15, 2026:
•each of our named executive officers;
•each of our directors;
•all of our directors and executive officers as a group; and
•each person, or group of affiliated persons, known by us to beneficially own more than 5% of our common stock.
We have determined beneficial ownership in accordance with the rules of the SEC, and therefore it represents sole or shared voting or investment power with respect to our securities. Unless otherwise indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole investment power with respect to all shares that they beneficially owned, subject to community property laws where applicable. We have deemed shares of common stock subject to options that are currently exercisable or exercisable within 60 days of March 15, 2026, to be outstanding and to be beneficially owned by the person holding the option for the purpose of computing the percentage ownership of that person but have not treated them as outstanding for the purpose of computing the percentage ownership of any other person.
We have based percentage ownership of common stock before this offering on shares of common stock outstanding as of March 15, 2026, after giving effect to the conversion of all outstanding shares of convertible preferred stock into common stock immediately upon the closing of this offering and the Warrant Net Exercises. Percentage ownership of common stock after this offering assumes the sale of shares of common stock in this offering and no exercise of the underwriters’ option to purchase additional shares of common stock from us. The following table does not reflect any shares of our common stock that may be purchased pursuant to our directed share program described under “Underwriting—Directed Share Program.”
Unless otherwise indicated, the address for each beneficial owner listed in the table below is c/o HawkEye 360, Inc., 450 Springpark Place, Suite 500, Herndon, Virginia 20170.
| | | | | | | | | | | | | | | | | |
| Number of
Shares
Beneficially
Owned | | $ of Shares
Beneficially
Owned |
| | | Before
Offering | | After
Offering |
| Greater than 5% Stockholders: | | | | | |
Entities affiliated with Insight Partners(1) | | | | | |
Entities affiliated with NightDragon(2) | | | | | |
GIC Pte Ltd(3). | | | | | |
Entities affiliated with Razor’s Edge Ventures II, LLC(4) | | | | | |
Directors and Named Executive Officers: | | | | | |
John Serafini | | | | | |
Todd Probert | | | | | |
Craig Searle | | | | | |
Mark Spoto | | | | | |
David G. DeWalt | | | | | |
| Francis A. Finelli | | | | | |
Arthur Money | | | | | |
| Jonathan Shames | | | | | |
James “Sandy” Winnefeld | | | | | |
All directors and executive officers as a group ( persons) | | | | | |
______________
*Represents beneficial ownership of less than 1%.
(1)Consists of (i) shares of common stock held of record by Insight Partners XII, L.P., (ii) shares of common stock held of record by Insight Partners XII (Co-Investors), L.P., (iii) shares of common stock held of record by Insight Partners XII (Co-Investors) (B), L.P., (iv) shares of common stock held of record by Insight Partners (Cayman) XII, L.P., (v) shares of common stock held of record by Insight Partners (Delaware) XII, L.P., (vi) shares of common stock held of record by Insight Partners (EU) XII, S.C.Sp. and (vii) shares held of record by Insight Partners Holdings Focus-H, L.P. Insight Holdings Group, LLC (“Holdings”) is the sole shareholder of each of Insight Associates XII, Ltd. (“IA XII Ltd”) and Insight Associates (EU) XII, S.a.r.l. (“IA EU XII”) and the sole member of Insight Partners Warehouse GP, LLC (“Warehouse GP”). IA XII Ltd is the general partner of Insight Associates XII, L.P. (“IA XII LP”), which is the general partner of Insight Partners XII, L.P., Insight Partners XII (Co-Investors), L.P., Insight Partners XII (Co-Investors) (B), L.P., Insight Partners (Cayman) XII, L.P. and Insight Partners (Delaware) XII, L.P (collectively, “Fund XII”). IA EU XII is the general partner of Insight Partners (EU) XII, S.C.Sp. Warehouse GP is the general partner of Insight Partners Holdings Focus-H, L.P. Each of Jeffrey L. Horing, Deven Parekh, Jeffrey Lieberman and Michael Triplett is a member of the board of managers of Holdings. Because Messrs. Horing, Parekh, Lieberman and Triplett are members of the board of managers of Holdings, Holdings is the sole shareholder of each of IA XII Ltd and IA EU XII and the sole member of Warehouse GP, IA XII Ltd is the general partner of IA XII LP, IA XII LP is the general partner of Fund XII, IA EU XII is the general partner of Insight Partners (EU) XII, S.C.Sp. and Warehouse GP is the general partner of Insight Partners Holdings Focus-H, L.P., Messrs. Horing, Parekh, Lieberman and Triplett may be deemed to share voting and dispositive power over the shares noted above. The foregoing is not an admission by any of Messrs. Horing, Parekh, Lieberman or Triplett that he is the beneficial owner of the shares noted above. The principal business address for each of the foregoing persons is 1114 Avenue of the Americas, 36th Floor, New York, New York 10036.
(2)Consists of (i) shares of common stock held of record by NightDragon Growth I, L.P. (“NightDragon I”); and (ii) shares of common stock held of record by NightDragon Growth II, L.P. (“NightDragon II”). NightDragon GP I, LLC (“NightDragon GP I”) is the general partner of NightDragon I. NightDragon GP II, LLC (“NightDragon GP II”) is the general partner of NightDragon II. David DeWalt is the managing member of NightDragon GP I and NightDragon GP II and may be deemed to hold voting and investment power with respect to the shares held of
record by NightDragon I and NightDragon II. The principal business address for each of the foregoing persons and entities affiliated with NightDragon is 101 2nd St, Suite 1275, San Francisco, California 94105.
(3)Consists of shares held of record by GIC Private Limited (“GIC”). GIC is a fund manager and only has two clients: the Government of Singapore (“GoS”) and the Monetary Authority of Singapore (“MAS”). Under an investment management agreement with GoS, GIC has been given the sole discretion to exercise the voting rights attached to, and the disposition of, any shares managed on behalf of GoS. Under the investment management agreement with MAS, GIC shares power to exercise the voting rights attached to, and the disposition of, any shares managed on behalf of MAS. GIC is wholly owned by the GoS and was set up with the sole purpose of managing Singapore’s foreign reserves. The GoS disclaims beneficial ownership of such shares. The principal business address of GIC is 168 Robinson Road, #37-01 Capital Tower, Singapore 068912.
(4)Consists of (i) shares of Common Stock held by Razor’s Edge Fund II, LP (“Razor’s Edge Fund II”); (ii) shares of Common Stock held by Razor’s Edge Fund II-A, LP (“Razor’s Edge Fund II-A”); and (iii) shares of Common Stock held by REII Sidecar 2, LLC (“Razor’s Edge SPV” and, together with Razor’s Edge Fund II and Razor’s Edge Fund II-A, the “Razor’s Edge Funds”). Razor's Edge Ventures II, LLC is the general partner of Razor’s Edge Fund II and Razor’s Edge Fund II-A and the manager of Razor’s Edge SPV. Voting and dispositive decisions with respect to the shares held by the Razor’s Edge Funds are made collectively by the managing members of Razor’s Edge Ventures, LLC: Mark Spoto, Peggy Styer, Steven Pann, Richard Moxley and Jack Kerrigan. The address of the Razor’s Edge Funds is 1875 Explorer Street, Suite 560, Reston, Virginia 20190.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock and certain provisions of our amended and restated certificate of incorporation and amended and restated bylaws, as each will become effective immediately prior to the closing of this offering, and certain provisions of Delaware law are summaries. You should also refer to the amended and restated certificate of incorporation and the amended and restated bylaws, which are filed as exhibits to the registration statement of which this prospectus is part.
General
Upon the completion of this offering, our amended and restated certificate of incorporation will authorize us to issue up to 2,000,000,000 shares of common stock, $0.0001 par value per share, and 20,000,000 shares of preferred stock, $0.0001 par value per share, all of which shares of preferred stock will be undesignated. Our board of directors may establish the rights and preferences of the preferred stock from time to time.
As of December 31, 2025, we had outstanding 4,168,374 shares of common stock, held by stockholders of record. As of December 31, 2025, after giving effect to the conversion of all of the outstanding shares of our preferred stock (including shares of Series E Preferred Stock issued subsequent to December 31, 2025) into 68,987,988 shares of common stock, there would have been 73,156,362 shares of common stock issued and outstanding, held by stockholders of record.
Common Stock
Voting Rights
Each holder of our common stock is entitled to one vote for each share on all matters submitted to a vote of the stockholders, including the election of directors. The affirmative vote of holders of at least 662/3% of the voting power of all of the then-outstanding shares of capital stock, voting as a single class, will be required to amend certain provisions of our amended and restated certificate of incorporation, including provisions relating to amending our amended and restated bylaws, the classified board, the size of our board, removal of directors, director liability, vacancies on our board, special meetings, stockholder notices, actions by written consent, and exclusive forum.
Dividends
Subject to preferences that may be applicable to any then-outstanding preferred stock, holders of common stock are entitled to receive ratably those dividends, if any, as may be declared from time to time by the board of directors out of legally available funds.
Liquidation
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 and the satisfaction of any liquidation preference granted to the holders of any then-outstanding shares of preferred stock.
Rights and Preferences
Holders of common stock have no preemptive, conversion or subscription rights and there are no redemption or sinking fund provisions applicable to the common stock. The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely affected by, the right of the holders of shares of any series of preferred stock that we may designate in the future.
Preferred Stock
As of December 31, 2025, there were 67,992,679 shares of preferred stock outstanding, consisting of 7,312,500 shares of Series A-1 Preferred Stock, 12,680,908 shares of Series A-2 Preferred Stock, 4,953,746 shares of Series A-3 Preferred Stock, 11,574,841 shares of Series B Preferred Stock, 6,960,439 shares of Series C Preferred Stock, 12,857,720 shares of Series D Preferred Stock, 6,085,161 shares of Series D-1 Preferred Stock, and 5,567,364 shares of Series E Preferred Stock. All currently outstanding shares of preferred stock (including shares of Series E Preferred Stock issued subsequent to December 31, 2025) will be converted into an aggregate of 68,987,988 shares of common stock upon the closing of this offering.
Under our amended and restated certificate of incorporation that will become effective immediately prior to the closing of this offering, our board of directors will have the authority, without further action by our stockholders, to issue up to 20,000,000 shares of preferred stock in one or more series, to establish from time to time the number of shares to be included in each such series, to fix the rights, preferences and privileges of the shares of each wholly unissued series and any qualifications, limitations or restrictions thereon, and to increase or decrease the number of shares of any such series, but not below the number of shares of such series then outstanding.
Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our common stock. The purpose of authorizing our board of directors to issue preferred stock and determine its rights and preferences is to eliminate delays associated with a stockholder vote on specific issuances. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of delaying, deferring or preventing a change in our control that may otherwise benefit holders of our common stock and may adversely affect the market price of our common stock and the voting and other rights of the holders of our common stock. It is not possible to state the actual effect of the issuance of any shares of preferred stock on the rights of holders of common stock until the board of directors determines the specific rights attached to that preferred stock.
We have no present plans to issue any shares of preferred stock following completion of this offering.
Warrants
Preferred Financing Warrants
As of December 31, 2025, we had outstanding (i) Series C Warrants, (ii) Series D Warrants, (iii) Series D-1 Penny Warrants, (iv) Series D-1 At-the-Money Warrants, and (v) Series D-1 Merger Warrants.
Immediately prior to the completion of this offering, the Preferred Financing Warrants, to the extent vested, will be automatically net exercised for an aggregate of shares of our common stock, based on an assumed initial public offering price of $ per share, which is the midpoint of the price range set forth on the cover page of this prospectus.
Bank Warrants
As of December 31, 2025, we had outstanding (i) the immediately exercisable Original Bank Warrant to purchase a total of shares of our common stock, with an exercise price of $0.23 per share, (ii) the immediately exercisable New Bank Warrant to purchase a total of shares of our common stock, with an exercise price of $0.77 per share, (iii) the immediately exercisable Mezzanine Warrants to purchase a total of shares of our common stock, with an exercise price of $2.29 per share, (iv) the immediately exercisable 2024 Warrants to purchase a total of shares of our common stock, with an exercise price of $2.31 per share, and (v) the immediately exercisable 2025 Warrants to purchase a total of shares of our common stock, with an exercise price of $ per share.
If not exercised prior to or in connection with the completion of this offering, the Bank Warrants will remain outstanding subsequent to the offering.
Options
As of December 31, 2025, there were options to purchase 14,675,271 shares of common stock outstanding under our 2015 Plan. For additional information regarding the terms of our 2015 Plan, see the section titled “Executive Compensation—Equity Plans.”
Restricted Stock Units
As of December 31, 2025, we had outstanding 182,786 unvested RSUs under the 2015 Plan.
Registration Rights
We, the holders of our existing preferred stock and certain holders of our existing common stock have entered into an amended and restated investors’ rights agreement. The registration rights provisions of this agreement provide those holders with demand, piggyback and Form S-3 registration rights with respect to the shares of common stock currently held by them and issuable to them upon conversion of our preferred stock in connection with our initial public offering. These shares are collectively referred to herein as registrable securities.
Demand Registration Rights
At any time beginning 180 days following the effective date of the registration statement of which this prospectus is a part, the holders of at least a majority of the registrable securities then outstanding have the right to demand that we file a Form S-1 registration statement covering at least 60% of the registrable securities then outstanding. Upon such a request, we are required to effect the registration as soon as practicable, but in any event no later than 60 days after the receipt of such request. We are not obligated to take any action in response to such request (i) during the period starting with the date 60 days prior to our good faith estimate of the date of filing of, and ending on a date 180 days after the effective date of, a Company-initiated registration, provided that we are actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective, (ii) if we have already effected two registrations pursuant to such requests for registrations on Form S-1 or (iii) if the initiating holders propose to register securities that may be immediately registered on Form S-3.
These registration rights are subject to specified conditions and limitations, including the right of the underwriters, if any, to limit the number of shares included in any such registration under specified circumstances. Additionally, if we furnish to the initiating holders a certificate signed by our Chief Executive Officer stating that in the good faith judgment of our board of directors that it would be materially detrimental to us for such registration statement to be filed in the near future and that it is therefore in the best interests of the Company to defer the filing of such registration statement, we have the right to defer such filing for the period during which such disclosure would be materially detrimental, provided that we may not deter such filing for a period of more than 60 days after receipt of the request of the initiating holders, provided further that we cannot invoke this right more than twice in any 12 month period, and provided further that we shall not register any securities for our own account or any other stockholder during such 60 day period (other than a registration relating to the sale or grant of securities of participants in one of our stock plans, a registration relating to a corporate reorganization or transaction under Rule 145 of the Securities Act or a registration on in which the only common stock being registered is common stock issuable upon conversion of debt securities that are also being registered).
An aggregate of shares of common stock will be entitled to these demand registration rights.
Piggyback Registration Rights
If we propose to register any of our securities under the Securities Act either for our own account or for the account of other stockholders, the holders of registrable securities will each be entitled to notice of
the registration and will be entitled to include their shares of common stock in the registration statement; provided that this shall not apply in connection with this offering or any registration relating to the sale or grant of securities our employees pursuant to an equity incentive or similar plan, among other exceptions. These piggyback registration rights are subject to specified conditions and limitations, including the right of the underwriters to limit the number of shares included in any such registration under specified circumstances. An aggregate of shares of common stock will be entitled to these piggyback registration rights.
Registration on Form S-3
At any time after we become eligible to file a registration statement on Form S-3, the holders of at least 25% of the registrable securities then outstanding will be entitled to request to have such shares registered by us on a Form S-3 registration statement. These Form S-3 registration rights are subject to other specified conditions and limitations, including the condition that the anticipated aggregate offering price is at least $1.0 million. Upon receipt of this request, the holders of registrable securities will each be entitled to participate in this registration.
We are not obligated to take any action in response to such request (i) during the period starting with the date 60 days prior to our good faith estimate of the date of filing of, and ending on a date 180 days after the effective date of, a Company-initiated registration, provided that we are actively employing in good faith all commercially reasonable efforts to cause such registration statement to become effective, (ii) if we have already effected two registrations pursuant to such requests for registrations on Form S-1 or (iii) if the initiating holders propose to register securities that may be immediately registered on Form S-3.
An aggregate of shares of common stock will be entitled to these Form S-3 registration rights.
Expenses of Registration
We are required to pay all expenses, including fees and expenses of one counsel to represent the selling stockholders (up to $50,000 total), relating to any demand, piggyback or Form S-3 registration, other than underwriting discounts and commissions, stock transfer taxes applicable to the sale of registration securities, subject to specified conditions and limitations. We are not required to pay registration expenses if a demand registration request is withdrawn at the request of a majority of holders of voting registrable securities to be registered, unless holders of a majority of the voting registrable securities agree to forfeit their right to one demand registration.
The amended and restated investors’ rights agreement contains customary cross-indemnification provisions, pursuant to which we are obligated to indemnify the selling stockholders against all expenses reasonably incurred in connection with investigating or defending any claim or proceeding from which any loss, damage, claim or liability to which a party thereto may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such loss, damage, claim or liability arises out of or is based upon (i) any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement of the company, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) an omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any violation (or alleged violation) by us of the Securities Act, the Exchange Act, any state or other securities laws or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law (“Damages”), may result, as such expenses are incurred.
The selling stockholders are obligated to indemnify us against any Damages, in each case only to the extent that such Damages arise out of or based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf if such selling stockholders expressly for use in connection with such registration, subject to certain limitations.
Termination of Registration Rights
The registration rights granted under the investors’ rights agreement will terminate with respect to any particular stockholder upon the earlier of (a) with respect to each stockholder, at such time after the closing of this offering as all shares of registrable securities held or entitled to be held upon conversion by such holder may be immediately sold under Rule 144 during any 90 day period; or (b) after the consummation of a deemed liquidation event, as defined in our certificate of incorporation.
Anti-Takeover Provisions
Section 203 of the Delaware General Corporation Law
We are subject to Section 203 of the DGCL, which prohibits a public Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years after the time that such stockholder became an interested stockholder, with the following exceptions:
•prior to such time, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;
•upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, but not the outstanding voting stock owned by the interested stockholder, those shares owned (i) by persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
•at or subsequent to such time, the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least 662⁄3% of the outstanding voting stock that is not owned by the interested stockholder.
In general, Section 203 defines a “business combination” to include the following:
•any merger or consolidation involving the corporation or any direct or indirect majority-owned subsidiary of the corporation and the interested stockholder;
•any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 10% or more of the assets of the corporation or of any direct or indirect majority-owned subsidiary involving the interested stockholder (in one transaction or a series of transactions);
•subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation or by any direct or indirect majority-owned subsidiary of the corporation of any stock of the corporation or of such subsidiary to the interested stockholder;
•any transaction involving the corporation or any direct or indirect majority-owned subsidiary of the corporation that has the effect, directly or indirectly, of increasing the proportionate share of the stock or any class or series of the corporation or any such subsidiary beneficially owned by the interested stockholder; or
•the receipt by the interested stockholder of the benefit, directly or indirectly, of any loans, advances, guarantees, pledges or other financial benefits by or through the corporation or any direct or indirect majority-owned subsidiary.
In general, Section 203 defines an “interested stockholder” as an entity or person who, together with the person’s affiliates and associates, beneficially owns, or within three years prior to the time of determination of interested stockholder status did own, 15% or more of the outstanding voting stock of the corporation.
Amended and Restated Certificate of Incorporation and Amended and Restated Bylaw Provisions
Our amended and restated certificate of incorporation and our amended and restated bylaws, each to be effective upon the completion of this offering, will include a number of provisions that may have the effect of deterring hostile takeovers, or delaying or preventing changes in control of our management team or changes in our board of directors or our governance or policy, including the following:
•Board of Directors Vacancies. Our amended and restated certificate of incorporation and our amended and restated bylaws will authorize generally only our board of directors to fill vacant directorships resulting from any cause or created by the expansion of our board of directors. In addition, the number of directors constituting our board of directors may be set only by resolution adopted by a majority vote of our entire board of directors. These provisions prevent a stockholder from increasing the size of our board of directors and gaining control of our board of directors by filling the resulting vacancies with its own nominees entitled to vote generally at an election of directors.
•Classified Board. Our amended and restated certificate of incorporation and our amended and restated bylaws will provide that our board of directors is classified into three classes of directors. The existence of a classified board of directors could delay a successful tender offeror from obtaining majority control of our board of directors, and the prospect of that delay might deter a potential offeror. For additional information, see the section titled “Management—Board Structure and Composition.”
•Directors Removed Only for Cause. Our amended and restated certificate of incorporation will provide that stockholders may remove directors only for cause and only by the affirmative vote of the holders of at least 66 2/3% of the voting power of the then-outstanding capital stock.
•Supermajority Requirements for Amendments of Our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws. Our amended and restated certificate of incorporation will further provide that the affirmative vote of holders of at least 66 2/3% of the voting power of the then-outstanding shares of capital stock will be required to amend certain provisions of our amended and restated certificate of incorporation, including provisions relating to the classified board, the size of our board of directors, removal of directors, special meetings, actions by written consent of our stockholders, and designation of our preferred stock. The affirmative vote of holders of at least 66 2/3% of the voting power of all of the then-outstanding shares of capital stock will be required to amend or repeal our amended and restated bylaws, although our amended and restated bylaws may be amended by a simple majority vote of our board of directors.
•Stockholder Action; Special Meetings of Stockholders. Our amended and restated certificate of incorporation will provide that our stockholders may not take action by written consent, but may only take action at annual or special meetings of our stockholders. As a result, holders of our capital stock would not be able to amend our amended and restated bylaws or remove directors without holding a meeting of our stockholders called in accordance with our amended and restated bylaws. Our amended and restated certificate of incorporation and our amended and restated bylaws will provide that special meetings of our stockholders may be called only by a majority of our board of directors, thus prohibiting a stockholder from calling a special meeting. These provisions might delay the ability of our stockholders to force consideration of a proposal or for stockholders to take any action, including the removal of directors.
•Advance Notice Requirements for Stockholder Proposals and Director Nominations. Our amended and restated bylaws will provide advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. Our amended and restated bylaws also will specify certain requirements regarding the form and content of a stockholder’s notice. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders or from making nominations for directors at our annual meeting of stockholders. We expect that these provisions might also discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of our company.
•No Cumulative Voting. The DGCL provides that stockholders are not entitled to the right to cumulate votes in the election of directors unless a corporation’s certificate of incorporation provides otherwise. Our amended and restated certificate of incorporation and amended and restated bylaws will not provide for cumulative voting.
•Issuance of Undesignated Preferred Stock. We anticipate that after the filing of our amended and restated certificate of incorporation, our board of directors will have the authority, without further action by the stockholders, to issue up to shares of undesignated preferred stock with rights and preferences, including voting rights, designated from time to time by our board of directors. The existence of authorized but unissued shares of preferred stock enables our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest or otherwise.
•Choice of Forum. In addition, our amended and restated certificate of incorporation will provide that, to the fullest extent permitted by law, the Court of Chancery of the State of Delaware will be the exclusive forum for any derivative action or proceeding brought on our behalf; any action asserting a breach of fiduciary duty; any action asserting a claim against us arising pursuant to the DGCL, our amended and restated certificate of incorporation or our amended and restated bylaws; any action asserting a claim against us that is governed by the internal affairs doctrine; or any to interpret, apply, enforce, or determine the validity of the amended and restated certificate of incorporation or amended and restated bylaws. 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 a court could find these types of provisions to be inapplicable or unenforceable. Our amended and restated certificate of incorporation will also contain a Federal Forum Provision. While there can be no assurance that federal or state courts will follow the holding of the Supreme Court of the State of Delaware which recently found that such provisions are facially valid under Delaware law or determine that the Federal Forum Provision should be enforced in a particular case, application of the Federal Forum Provision means that suits brought by our stockholders to enforce any duty or liability created by the Securities Act must be brought in federal court and cannot be brought in state court. As Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder, there is uncertainty as to whether a court would enforce such provision. Further, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all claims brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. In addition, the Federal Forum Provision applies, to the fullest extent permitted by law, to suits brought to enforce any duty or liability created by the Exchange Act. Accordingly, actions by our stockholders to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder must be brought in federal court. Our stockholders will not be deemed to have waived our compliance with the federal securities laws and the regulations promulgated thereunder. Any person or entity purchasing or otherwise acquiring or holding any interest in any of our securities shall be deemed to have notice of and consented to our exclusive forum provisions, including the Federal Forum Provision. These provisions may limit a stockholder’s ability to bring a claim in a
judicial forum of their choosing for disputes with us or our directors, officers, or other employees, which may discourage lawsuits against us and our directors, officers, and other employees. If a court were to find the Federal Forum Provision in our amended and restated certificate of incorporation to be inapplicable or unenforceable in an action, we may incur further significant additional costs associated with resolving the dispute in other jurisdictions, all of which could harm our business.
Transfer Agent and Registrar
Upon the completion of this offering, the transfer agent and registrar for our common stock will be Computershare Trust Company, N.A. The transfer agent’s address is 150 Royall Street, Canton, Massachusetts 02021.
Listing
We intend to apply for listing of our common stock on the New York Stock Exchange under the trading symbol “HAWK.”
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, no public market existed for our common stock. Future sales of our common stock in the public market, or the availability of such shares for sale in the public market, could adversely affect market prices prevailing from time to time. As described below, only a limited number of shares will be available for sale shortly after this offering due to contractual and legal restrictions on resale. Nevertheless, sales of our common stock in the public market after such restrictions lapse, or the perception that those sales may occur, could adversely affect the prevailing market price at such time and our ability to raise equity capital in the future.
Based on the number of shares outstanding as of December 31, 2025, upon the closing of this offering and assuming no exercise of the underwriters’ option to purchase additional shares of common stock, shares of common stock will be outstanding. All of the shares of common stock sold in this offering will be freely tradable without restrictions or further registration under the Securities Act, except for any shares sold to our “affiliates,” as that term is defined under Rule 144 under the Securities Act. The remaining shares of common stock held by existing stockholders are “restricted securities,” as that term is defined in Rule 144 under the Securities Act, or certain shares sold pursuant to our directed share program that are subject to “lock-up” restrictions as described under “—Lock-up Agreements” below and in the section titled “Underwriting—Directed Share Program”. Restricted securities may be sold in the public market only if registered or if their resale qualifies for exemption from registration described below under Rule 144 promulgated under the Securities Act or another available exemption. We expect that substantially all of these shares held by existing stockholders will be subject to the lock-up period under the lock-up agreements described below.
Rule 144
In general, non-affiliate persons who have beneficially owned restricted shares of our common stock for at least six months, and any of our affiliates who owns either restricted or unrestricted shares of our common stock, are entitled to sell their securities without registration with the SEC under an exemption from registration provided by Rule 144 under the Securities Act.
Non-Affiliates
Any person who is not deemed to have been one of our affiliates at the time of, or at any time during the three months preceding, a sale may sell an unlimited number of restricted securities under Rule 144 if:
•the restricted securities have been held for at least six months, including the holding period of any prior owner other than one of our affiliates (subject to certain exceptions);
•we have been subject to the Exchange Act periodic reporting requirements for at least 90 days before the sale; and
•we are current in our Exchange Act reporting at the time of sale.
Any person who is not deemed to have been an affiliate of ours at the time of, or at any time during the three months preceding, a sale and has held the restricted securities for at least one year, including the holding period of any prior owner other than one of our affiliates, will be entitled to sell an unlimited number of restricted securities without regard to the length of time we have been subject to Exchange Act periodic reporting or whether we are current in our Exchange Act reporting. Non-affiliate resales are not subject to the manner of sale, volume limitation or notice filing provisions of Rule 144.
Affiliates
Persons seeking to sell restricted securities who are our affiliates at the time of, or any time during the three months preceding, a sale, would be subject to the restrictions described above. They are also subject to additional restrictions, by which such person would be required to comply with the manner of
sale and notice provisions of Rule 144 and would be entitled to sell within any three-month period only that number of securities that does not exceed the greater of either of the following:
•1% of the number of shares of our common stock then outstanding, which will equal approximately shares immediately after the completion of this offering based on the number of shares outstanding as of December 31, 2025; or
•the average weekly trading volume of our common stock on the stock exchange on which our shares are listed during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale.
Additionally, persons who are our affiliates at the time of, or any time during the three months preceding, a sale may sell unrestricted securities under the requirements of Rule 144 described above, without regard to the six-month holding period of Rule 144, which does not apply to sales of unrestricted securities.
Rule 701
Rule 701 under the Securities Act, as in effect on the date of this prospectus, permits resales of shares in reliance upon Rule 144 but without compliance with certain restrictions of Rule 144, including the holding period requirement. Most of our employees, executive officers or directors who purchased shares under a written compensatory plan or contract may be entitled to rely on the resale provisions of Rule 701, but all holders of Rule 701 shares are required to wait until 90 days after the date of this prospectus before selling their shares. However, substantially all Rule 701 shares are subject to lock-up agreements as described below and in the section titled “Underwriting” and will become eligible for sale upon the expiration of the restrictions set forth in those agreements.
Form S-8 Registration Statements
We intend to file one or more registration statements on Form S-8 under the Securities Act to register all shares of common stock subject to outstanding stock options and common stock issued or issuable under our equity plans. We expect to file the registration statement covering shares offered pursuant to our stock plans as soon as practicable after the closing of this offering, permitting the resale of such shares by non-affiliates in the public market without restriction under the Securities Act and the sale by affiliates in the public market, subject to compliance with the resale provisions of Rule 144 and expiration or release from the terms of the lock-up agreements described below.
Lock-Up Agreements
We and our officers, directors, and holders of substantially all of our common stock and securities convertible into or exercisable for our common stock have agreed with the underwriters, subject to exceptions as further described in the section titled “Underwriting”, not to dispose of or hedge any of the common stock or securities convertible into or exchangeable for shares of common stock (including any shares purchased by any of our directors or officers pursuant to the directed share program), without the prior written consent of Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC, during the period from the date of this prospectus and continuing through the close of the first Trading Day on or after the 180th Day after the date of this prospectus, or, if the 180th Day is not a Trading Day, immediately after the close of the last Trading Day immediately preceding the 180th Day. Notwithstanding the foregoing, if the lock-up period would otherwise be scheduled to end during, or within five trading days prior to, a regularly-scheduled blackout period under our insider trading policy, and such date is more than 100 days following the date of this prospectus, then the lock-up period will instead end on the date that is ten trading days prior to the commencement of such regularly-scheduled blackout period (the “Conditional Early Termination Date”); provided, however, that promptly upon our determination of the Conditional Early Termination Date, and in any event at least five trading days in advance of the Conditional Early Termination Date, we shall notify each of the representatives of the date of the impending Conditional Early Termination Date, and shall announce the Conditional Early Termination Date through a major news
service, or on a Form 8-K, at least two trading days in advance of the Conditional Early Termination Date. Any shares purchased by our directors, officers or holders of more than 10% of our capital stock in this offering will also be subject to the lock-up agreements.
In addition to the restrictions contained in the lock-up agreements described above, we have entered into agreements with certain of our security holders that contain market stand-off provisions imposing restrictions on the ability of such security holders to sell or otherwise transfer or dispose of any registrable securities for a period of 180 days following the date of this prospectus.
Registration Rights
Upon the closing of this offering, the holders of shares of our common stock, including common stock issuable upon the conversion of our convertible preferred stock, or their transferees, will be entitled to specified rights with respect to the registration of their registrable shares under the Securities Act, subject to certain limitations and the expiration, waiver or termination of the lock-up agreements. Registration of these shares under the Securities Act would result in the shares becoming freely tradable without restriction under the Securities Act immediately upon effectiveness of the registration. See the section titled “Description of Capital Stock—Registration Rights” for additional information.
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES TO NON-U.S. HOLDERS
The following is a summary of the material U.S. federal income tax consequences to non-U.S. holders (as defined below) of the ownership and disposition of our common stock issued pursuant to this offering. This discussion is not a complete analysis of all potential U.S. federal income tax consequences relating thereto, does not address the potential application of the Medicare contribution tax on net investment income, any alternative minimum tax, or the special tax accounting rules under Section 451(b) of the Code, and does not address any estate or gift tax consequences or any tax consequences arising under any state, local, or non-U.S. tax laws, or any other U.S. federal tax laws. This discussion is based on the Code and applicable Treasury Regulations promulgated thereunder, published rulings and administrative pronouncements of the Internal Revenue Service (“IRS”), and judicial decisions, all as in effect as of the date hereof. These authorities are subject to differing interpretations and may change, possibly retroactively, resulting in U.S. federal income tax consequences different from those discussed below. We have not requested a ruling from the IRS with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS or a court will agree with such statements and conclusions.
This discussion is limited to non-U.S. holders that purchase our common stock pursuant to this offering and that hold our common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all of the U.S. federal income tax consequences that may be relevant to a particular holder in light of such holder’s particular circumstances. This discussion also does not consider any specific facts or circumstances that may be relevant to holders subject to special rules under the U.S. federal income tax laws, including, without limitation:
•certain former citizens or long-term residents of the United States;
•“controlled foreign corporations;”
•“passive foreign investment companies;”
•corporations that accumulate earnings to avoid U.S. federal income tax;
•banks, financial institutions, investment funds or insurance companies;
•brokers, dealers or traders in securities or foreign currencies;
•tax-exempt organizations;
•governmental organizations;
•tax-qualified retirement plans;
•“qualified foreign pension funds” as defined in Section 897(l)(2) of the Code and entities all of the interests of which are held by qualified foreign pension funds;
•persons that own, or have owned, actually or constructively, more than 5% of our common stock at any time;
•persons who acquire our common stock pursuant to the exercise of employee stock options or otherwise as compensation;
•S corporations, disregarded entities or partnerships (or other entities or arrangements treated as partnerships) for U.S. federal income tax purposes and investors therein; and
•persons holding our common stock as part of a hedging or conversion transaction or straddle, a constructive sale or other risk reduction strategy or integrated investment.
If an entity or arrangement that is classified as a partnership for U.S. federal income tax purposes holds our common stock, the U.S. federal income tax treatment of the partnership and the partners thereof generally depend on the status of the partner and the activities of the partnership and certain elections made at the partnership level. Partnerships holding our common stock and partners in such partnerships are urged to consult their tax advisors about the particular U.S. federal income tax consequences to them of holding and disposing of our common stock.
THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT TAX ADVICE. PROSPECTIVE INVESTORS SHOULD CONSULT THEIR TAX ADVISORS REGARDING THE PARTICULAR U.S. FEDERAL INCOME TAX CONSEQUENCES TO THEM OF OWNING AND DISPOSING OF OUR COMMON STOCK, AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER ANY STATE, LOCAL OR NON-U.S. TAX LAWS AND ANY OTHER U.S. FEDERAL TAX LAWS.
Definition of Non-U.S. Holder
For purposes of this discussion, the term “non-U.S. holder” means any beneficial owner of our common stock that is not a “U.S. person” or a partnership (including any entity or arrangement treated as a partnership) for U.S. federal income tax purposes. A U.S. person is any person that, for U.S. federal income tax purposes, is or is treated as any of the following:
•an individual who is a citizen or resident of the United States;
•a corporation (or entity treated as a corporation for U.S. federal income tax purposes) created or organized under the laws of the United States, any state thereof or the District of Columbia;
•an estate, the income of which is subject to U.S. federal income tax regardless of its source; or
•a trust (1) the administration of which is subject to the primary supervision of a U.S. court and that has one or more U.S. persons with the authority to control all substantial decisions of the trust or (2) that has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person.
Distributions On Our Common Stock
We have not paid dividends on our common stock and do not anticipate paying dividends on our common stock for the foreseeable future. However, if we make cash or other property distributions on our common stock, such distributions will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. Amounts not treated as dividends for U.S. federal income tax purposes will constitute a return of capital and will first be applied against and reduce a non-U.S. holder’s tax basis in our common stock, but not below zero. Any excess will be treated as gain realized on the sale or other disposition of our common stock and will be treated as described under “— Gain On Disposition of Our Common Stock” below.
Subject to the discussions below regarding effectively connected income, backup withholding and Sections 1471 through 1474 of the Code (commonly referred to as the Foreign Account Tax Compliance Act (“FATCA”)), dividends paid to a non-U.S. holder generally will be subject to U.S. federal withholding tax at a rate of 30% of the gross amount of the dividends or such lower rate specified by an applicable income tax treaty. To receive the benefit of a reduced treaty rate, a non-U.S. holder must furnish us or our paying agent with a valid IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) and satisfy applicable certification and other requirements. This certification must be provided to us or our paying agent before the payment of distributions. If the non-U.S. holder holds the stock through a financial institution or other agent acting on the non-U.S. holder’s behalf, the non-U.S. holder will be required to provide appropriate documentation to the agent, which then will be required to provide certification to us or our paying agent, either directly or through other intermediaries.
If a non-U.S. holder holds our common stock in connection with the conduct of a trade or business in the United States, and dividends paid on our common stock are effectively connected with such non-U.S. holder’s U.S. trade or business (and, if required by an applicable tax treaty, are attributable to such holder’s permanent establishment or fixed base maintained by the non-U.S. holder in the United States), the non-U.S. holder will be exempt from U.S. federal withholding tax. To claim the exemption, the non-U.S. holder generally must furnish a valid IRS Form W-8ECI (or applicable successor form) to us or our paying agent, certifying that the dividends are effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States. However, any such effectively connected dividends paid on our common stock generally will be subject to U.S. federal income tax on a net income basis at the regular U.S. federal income tax rates in the same manner as if such holder were a resident of the United States. A non-U.S. holder that is a foreign corporation also may be subject to an additional branch profits tax equal to 30% (or such lower rate specified by an applicable income tax treaty) of its effectively connected earnings and profits for the taxable year, as adjusted for certain items. Non-U.S. holders should consult their tax advisors regarding any applicable income tax treaties that may provide for different rules.
Non-U.S. holders that do not provide the required certification on a timely basis, but that qualify for a reduced treaty rate, may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. Non-U.S. holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.
Gain On Disposition of Our Common Stock
Subject to the discussions below regarding backup withholding and FATCA, a non-U.S. holder generally will not be subject to U.S. federal income tax on any gain realized on the sale or other disposition of our common stock, unless:
•the gain is effectively connected with the non-U.S. holder’s conduct of a trade or business in the United States, and if required by an applicable income tax treaty, 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 nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition, and certain other requirements are met; or
•our common stock constitutes a United States real property interest (“USRPI”), by reason of our status as a United States real property holding corporation (“USRPHC”), for U.S. federal income tax purposes at any time within the shorter of the five-year period preceding the disposition or the non-U.S. holder’s holding period for our common stock.
Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular U.S. federal income tax rates in the same manner as if such holder were a resident of the United States. A non-U.S. holder that is a foreign corporation also may be subject to an additional branch profits tax equal to 30% (unless an applicable income tax treaty provides for different treatment) of its effectively connected earnings and profits for the taxable year, as adjusted for certain items. Gain described in the second bullet point above will be subject to U.S. federal income tax at a flat 30% rate (or such lower rate specified by an applicable income tax treaty), but may be offset by certain U.S.-source capital losses (even though the individual is not considered a resident of the United States), provided that 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 tax advisors regarding any applicable income tax treaties that may provide for different rules.
The determination of whether we are a USRPHC depends on the fair market value of our USRPIs relative to the fair market value of our worldwide real property interests and our other assets used or held for use in a trade or business. We believe that we are not currently and do not anticipate becoming a USRPHC for U.S. federal income tax purposes, although there can be no assurance that we will not become a USRPHC in the future. Even if we are or were to become a USRPHC, gain arising from the
sale or other taxable disposition of our common stock by a non-U.S. holder will not be subject to U.S. federal income tax if our common stock is regularly traded (as defined by applicable Treasury Regulations) on an established securities market, and such non-U.S. holder owned, actually and constructively, 5% or less of our common stock throughout the shorter of the five- year period ending on the date of the sale or other taxable disposition or the non-U.S. holder’s holding period. There can be no assurance that our common stock will qualify as regularly traded on an established securities market for this purpose. Prospective investors are encouraged to consult their own tax advisors regarding the possible consequences to them if we are, or were to become, a USRPHC.
Information Reporting and Backup Withholding
Annual reports are required to be filed with the IRS and provided to each non-U.S. holder indicating the amount of distributions on our common stock paid to such holder and the amount of any tax withheld with respect to those distributions. These information reporting requirements apply regardless of whether such distributions constitute dividends and even if no withholding was required. This information may be made available under a treaty or agreement with the tax authorities in the country in which the non-U.S. holder is tax resident. Backup withholding, currently at a 24% rate, generally will not apply to payments to a non-U.S. holder of dividends on, or the gross proceeds of a disposition of, our common stock provided the non-U.S. holder furnishes the required certification for its non-U.S. status, such as by providing a valid IRS Form W-8BEN, IRS Form W-8BEN-E, or IRS Form W-8ECI, or otherwise establishes an exemption, and certain other requirements are met. Backup withholding may apply if the payor has actual knowledge or reason to know, that the holder is a U.S. person who is not an exempt recipient.
Backup withholding is not an additional tax. If any amount is withheld under the backup withholding rules, the non-U.S. holder should consult with a U.S. tax advisor regarding the possibility of and procedure for obtaining a refund or a credit against the non-U.S. holder’s U.S. federal income tax liability, if any.
Foreign Account Tax Compliance Act
FATCA imposes a U.S. federal withholding tax of 30% on certain payments made to a “foreign financial institution” (as specially defined under these rules) unless such institution enters into an agreement with the U.S. Government to withhold on certain payments and to collect and provide to the U.S. tax authorities substantial information regarding certain 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 an exemption applies. FATCA also generally will impose a U.S. federal withholding tax of 30% on certain payments made to a non-financial foreign entity unless such entity provides the withholding agent a certification identifying certain direct and indirect U.S. owners of the entity or an exemption applies. An intergovernmental agreement between the United States and an applicable foreign country may modify these requirements. Under certain circumstances, a non-U.S. holder might be eligible for refunds or credits of such taxes. FATCA currently applies to dividends paid on our common stock. Under applicable Treasury Regulations and administrative guidance, withholding under FATCA would have applied to payments of gross proceeds from the sale or other disposition of stock, but under proposed regulations (the preamble to which specifies that taxpayers are permitted to rely on such proposed regulations pending finalization), no withholding would apply with respect to payments of gross proceeds.
Prospective investors are encouraged to consult with their own tax advisors regarding the possible implications of this legislation on their investment in our common stock.
THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT TAX ADVICE. PROSPECTIVE INVESTORS SHOULD CONSULT THEIR TAX ADVISORS REGARDING THE U.S. FEDERAL, STATE, AND LOCAL AND NON-U.S. INCOME AND NON-INCOME TAX CONSEQUENCES OF ACQUIRING, OWNING AND DISPOSING OF OUR COMMON STOCK IN THEIR
PARTICULAR CIRCUMSTANCES, INCLUDING RELATED REPORTING REQUIREMENTS AND THE IMPACT OF ANY POTENTIAL CHANGE IN LAW.
UNDERWRITING
The Company and the underwriters named below have entered into an underwriting agreement with respect to the shares being offered. Subject to certain conditions, each underwriter has severally agreed to purchase the number of shares indicated in the following table. Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC are the representatives of the underwriters.
| | | | | | | | |
Underwriters | | Number of Shares |
Goldman Sachs & Co. LLC | | |
Morgan Stanley & Co. LLC | | |
RBC Capital Markets, LLC | | |
Jefferies LLC | | |
BofA Securities, Inc. | | |
Robert W. Baird & Co., Incorporated | | |
Raymond James & Associates, Inc. | | |
William Blair & Company, L.L.C. | | |
Drexel Hamilton, LLC | | |
Total | | |
The underwriters are committed to take and pay for all of the shares being offered, if any are taken, other than the shares covered by the option described below unless and until this option is exercised.
The underwriters have an option to buy up to an additional shares of common stock from the Company to cover sales by the underwriters of a greater number of shares than the total number set forth in the table above. They may exercise that option for 30 days from the date of this prospectus. If any shares are purchased pursuant to this option, the underwriters will severally purchase shares in approximately the same proportion as set forth in the table above.
The following table shows the per share and total underwriting discounts and commissions to be paid to the underwriters by the Company. Such amounts are shown assuming both no exercise and full exercise of the underwriters’ option to purchase additional shares of common stock.
| | | | | | | | | | | | | | |
| | No Exercise | | Full Exercise |
Per Share | | $ | | $ |
Total | | $ | | $ |
Shares sold by the underwriters to the public will initially be offered at the initial public offering price set forth on the cover of this prospectus. Any shares sold by the underwriters to securities dealers may be sold at a discount of up to $ per share from the initial public offering price. After the initial offering of the shares, the representatives may change the offering price and the other selling terms. The offering of the shares by the underwriters is subject to receipt and acceptance and subject to the underwriters’ right to reject any order in whole or in part.
The Company has agreed that, from the date of this prospectus and continuing through the close of the first Trading Day on or after the 180th Day after the date of this prospectus, or, if the 180th Day is not a Trading Day, immediately after the close of the last Trading Day immediately preceding the 180th Day (the “lock-up period”), the Company will not (i) offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, or file with or confidentially submit to the SEC a registration statement under the Securities Act relating to, any securities of the Company that are substantially similar to the shares of common stock, including but not limited to any options or warrants to purchase shares of common stock or any securities that are convertible into or exchangeable for, or that represent the right to receive, common stock or any such substantially similar
securities, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the common stock or any such other securities, or publicly disclose the intention to enter into such agreement, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of common stock or such other securities, in cash or otherwise, without the prior written consent of Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC.
However, the restrictions described above will not apply to (a) the shares of common stock to be sold in this offering, (b) the issuance by the Company of shares of common stock upon the exercise of options or the settlement of RSUs (including any net exercise or settlement) outstanding as of, or issued after, the date of this prospectus pursuant to the Company’s equity plans described herein or other arrangement described herein, (c) the issuance by the Company of shares of common stock upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of this prospectus as described herein, (d) the issuance by the Company of shares of common stock or securities convertible into, exchangeable for or that represent the right to receive shares of common stock, in each case, pursuant to the Company’s equity plans described herein, (e) the issuance by the Company of shares of common stock or securities convertible into, exchangeable for or that represent the right to receive shares of common stock in connection with (x) the acquisition by the Company or any of its subsidiaries of the securities, business, technology, property or other assets of another person or entity or pursuant to an employee benefit plan assumed by the Company in connection with such acquisition, and the issuance of any such securities pursuant to any such agreement, or (y) the Company’s joint ventures, commercial relationships and other strategic relationships, or (f) the filing of any registration statement(s) on Form S-8 relating to the securities granted or to be granted pursuant to (A) the Company’s equity plans that are described herein or (B) any assumed employee benefit plan contemplated by clause (f); provided that the aggregate number of shares of common stock that the Company may sell or issue or agree to sell or issue pursuant to clause (e) will not exceed 10% of the total number of shares of common stock of the Company outstanding immediately following the issuance of the shares of common stock contemplated by this prospectus; and provided, further, that in the case of clauses (b), (c), (d) and (e), the Company will cause each recipient of such securities to execute and deliver to Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC, on or prior to the issuance of such securities, a lock-up agreement, unless such recipient is already bound by a lock-up agreement for the remainder of the lock-up period, and enter stop transfer instructions with the Company’s transfer agent and registrar on such securities, which the Company agrees it will not waive or amend without the prior written consent of the representatives.
The directors, executive officers, and holders of all (except as agreed with the representatives) of the Company’s common stock and securities convertible into or exercisable for the Company’s common stock (such persons, collectively, the “lock-up parties”) have agreed that, for the duration of the lock-up period, the lock-up parties will not, and will not cause or direct any of their affiliates to, (i) offer, sell, contract to sell, pledge, grant any option, right or warrant to purchase, purchase any option or contract to sell, lend or otherwise transfer or dispose of any shares of common stock, or any options or warrants to purchase any shares of common stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of common stock (such shares of common stock, options, rights, warrants or other securities, collectively, the “lock-up securities”), including without limitation any such lock-up securities owned as of the date of this prospectus or acquired after the date of this prospectus, (ii) engage in any hedging or other transaction or arrangement (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) which is designed to or which reasonably could be expected to lead to or result in a sale, loan, pledge or other disposition (whether by the lock-up party or someone other than the lock-up party), or transfer of any of the economic consequences of ownership, in whole or in part, directly or indirectly, of any lock-up securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of common stock or other securities, in cash or otherwise (any such sale, loan, pledge or other disposition, or transfer of economic consequences, a “transfer”), (iii) make any demand for or exercise any right with respect to the registration of any lock-up securities or (iv) otherwise publicly announce any
intention to engage in or cause any action, activity, transaction or arrangement described in clause (i), (ii) or (iii) above.
Notwithstanding the foregoing, the lock-up parties may:
(a)transfer the lock-up securities,
(i)as one or more bona fide gifts or charitable contributions, or for bona fide estate planning purposes,
(ii)upon death by will, testamentary document or intestate succession,
(iii)if the lock-up party is a natural person, to any member of the lock-up party’s immediate family (for purposes of the lock-up agreement, “immediate family” will mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin) or to any trust for the direct or indirect benefit of the lock-up party or the immediate family of the lock-up party or, if the lock-up party is a trust, to a trustor or beneficiary of the trust or the estate of a beneficiary of such trust,
(iv)to a partnership, limited liability company or other entity of which the lock-up party and the immediate family of the lock-up party are the legal and beneficial owner of all of the outstanding equity securities or similar interests,
(v)to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (a)(i) through (iv) above,
(vi)if the lock-up party is a corporation, partnership, limited liability company or other business entity, (A) to another corporation, partnership, limited liability company or other business entity that is an affiliate of the lock-up party, or to any investment fund or other entity which fund or entity is controlled or managed by the lock-up party or affiliates of the lock-up party, or (B) as part of a distribution by the lock-up party to its stockholders, partners, members or other equityholders or to the estate of any such stockholders, partners, members or other equityholders,
(vii)by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement,
(viii)to the Company from an employee of the Company upon death, disability or termination of employment, in each case, of such employee,
(ix)if the lock-up party is not an officer or director of the Company or a stockholder holding 10% or more of shares of common stock, in connection with a sale of the lock-up party’s shares of common stock acquired (A) from the underwriters in this offering or (B) in open market transactions after the closing date of this offering,
(x)to the Company in connection with the vesting, settlement or exercise of RSUs, options, warrants or other rights to purchase shares of common stock (including, in each case, by way of “net” or “cashless” exercise) that are scheduled to expire or automatically vest during the lock-up period, including any transfer to the Company for the payment of tax withholdings or remittance payments due as a result of the vesting, settlement or exercise of such RSUs, options, warrants or other rights, or in connection with the conversion of convertible securities, in all such cases pursuant to equity awards granted under a stock incentive plan or other equity award plan, or pursuant to the terms of convertible securities, each as described herein, provided that any securities received upon such vesting, settlement, exercise or conversion will be subject to the terms of the lock-up agreement,
(xi)in connection with the sale or other transfer of the lock-up party’s shares of common stock to satisfy any tax obligations or payments due as a result of (A) the exercise of stock options, if such options expire or the post-termination exercise period applicable to such options expire during the lock-up period or (B) the settlement of RSUs pursuant to awards granted under a stock incentive plan or other equity award plan or arrangement described herein, provided that, in each case, any securities received upon such exercise or settlement that are not transferred or sold to cover any such tax obligations will be subject to the terms of the lock-up agreement, or
(xii)with the prior written consent of Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC on behalf of the underwriters;
provided that (A) in the case of clauses (a)(i), (ii), (iii), (iv), (v) and (vi) above, such transfer or distribution will not involve a disposition for value, (B) in the case of clauses (a)(i), (ii), (iii), (iv), (v), (vi) and (vii) above, it will be a condition to the transfer or distribution that the donee, devisee, transferee or distributee, as the case may be, will sign and deliver a lock‑up agreement, (C) in the case of clauses (a)(ii), (iii), (iv), (v) and (vi) above, no filing by any party (including, without limitation, any donor, donee, devisee, transferor, transferee, distributor or distributee) under the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of lock-up securities will be required or will be voluntarily made in connection with such transfer or distribution, and (D) in the case of clauses (a)(i), (vii), (viii), (ix), (x) and (xi) above, no filing under the Exchange Act or other public filing, report or announcement will be voluntarily made, and if any such filing, report or announcement will be legally required during the lock-up period, such filing, report or announcement will clearly indicate in the footnotes thereto (A) the circumstances of such transfer or distribution and (B) in the case of a transfer or distribution pursuant to clauses (a)(i) or (vii) above, that the donee, devisee, transferee or distributee has agreed to be bound by a lock-up agreement in the form of the lock-up agreement;
(b)enter into or amend a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act relating to the transfer, sale or other disposition of the lock-up party’s lock-up securities, if then permitted by the Company, provided that none of the securities subject to such plan may be transferred, sold or otherwise disposed of until after the expiration of the lock-up period (except to the extent otherwise allowed pursuant to the lock-up agreement) and no public announcement, report or filing under the Exchange Act, or any other public filing, report or announcement, will be voluntarily made (whether by or on behalf of the lock-up party, the Company or any other party) regarding, or that otherwise discloses, the establishment of such plan during the lock-up period (except to the extent otherwise allowed pursuant to the lock-up agreement), and if any such filing, report or announcement will be legally required during the lock-up period, such filing, report or announcement will clearly indicate that that none of the securities subject to such plan may be transferred, sold or otherwise disposed of pursuant to such plan until after the expiration of the lock-up period (except to the extent otherwise allowed pursuant to the lock-up agreement); and
(c)transfer the lock-up party’s lock-up securities pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders of the Company’s capital stock involving a change of control of the Company, in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity); provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the lock-up party’s lock-up securities will remain subject to the provisions of the lock-up agreement.
Notwithstanding the foregoing, if the lock-up period would otherwise be scheduled to end during, or within five trading days prior to, a regularly-scheduled blackout period under the Company’s insider trading policy, and such date is more than 100 days following the date of this prospectus, then the lock-up period will instead end on the date that is ten trading days prior to the commencement of such regularly-
scheduled blackout period (the “Conditional Early Termination Date”); provided, however, that promptly upon the Company’s determination of the Conditional Early Termination Date, and in any event at least five trading days in advance of the Conditional Early Termination Date, the Company shall notify each of the representatives of the date of the impending Conditional Early Termination Date, and shall announce the Conditional Early Termination Date through a major news service, or on a Form 8-K, at least two trading days in advance of the Conditional Early Termination Date.
Prior to the offering, there has been no public market for the shares. The initial public offering price has been negotiated among the Company and the representatives. Among the factors to be considered in determining the initial public offering price of the shares, in addition to prevailing market conditions, will be the Company’s historical performance, estimates of the business potential and earnings prospects of the Company, an assessment of the Company’s management and the consideration of the above factors in relation to market valuation of companies in related businesses.
We intend to apply for listing of our common stock on the New York Stock Exchange under the symbol “HAWK.”
In connection with the offering, the underwriters may purchase and sell shares of common stock in the open market. These transactions may include short sales, stabilizing transactions, and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of shares than they are required to purchase in the offering, and a short position represents the amount of such sales that have not been covered by subsequent purchases. A “covered short position” is a short position that is not greater than the amount of additional shares of common stock for which the underwriters’ option described above may be exercised. The underwriters may cover any covered short position by either exercising their option to purchase additional shares of common stock or purchasing shares in the open market. In determining the source of shares to cover the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase additional shares of common stock pursuant to the option described above. “Naked” short sales are any short sales that create a short position greater than the amount of additional shares of common stock for which the option described above may be exercised. The underwriters must cover any such naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common stock in the open market after pricing that could adversely affect investors who purchase in the offering. Stabilizing transactions consist of various bids for or purchases of common stock made by the underwriters in the open market prior to the completion of the offering.
The underwriters may also impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the representatives have repurchased shares sold by or for the account of such underwriter in stabilizing or short covering transactions.
Purchases to cover a short position and stabilizing transactions, as well as other purchases by the underwriters for their own accounts, may have the effect of preventing or retarding a decline in the market price of the Company’s stock, and together with the imposition of the penalty bid, may stabilize, maintain or otherwise affect the market price of the common stock. As a result, the price of the common stock may be higher than the price that otherwise might exist in the open market. The underwriters are not required to engage in these activities and may end any of these activities at any time. These transactions may be effected on the , in the over-the-counter market or otherwise.
The Company estimates that its share of the total expenses of the offering, excluding underwriting discounts and commissions, will be approximately $ . The Company also agreed to reimburse the underwriters for certain Financial Industry Regulatory Authority, Inc. (“FINRA”)-related expenses incurred by them in connection with the offering in an amount up to $ .
The Company has agreed to indemnify the several underwriters against certain liabilities, including liabilities under the Securities Act.
The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include sales and trading, commercial and investment banking, advisory, investment management, investment research, principal investment, hedging, market-making, brokerage, and other financial and non-financial activities and services. Certain of the underwriters and their respective affiliates have provided, and may in the future provide, a variety of these services to the Company and to persons and entities with relationships with the Company, for which they received or will receive customary fees and expenses.
In the ordinary course of their various business activities, the underwriters and their respective affiliates, officers, directors, and employees may purchase, sell or hold a broad array of investments, and actively trade securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments for their own account and for the accounts of their customers, and such investment and trading activities may involve or relate to assets, securities, and/or instruments of the Company (directly, as collateral securing other obligations or otherwise) and/or persons and entities with relationships with the Company. The underwriters and their respective affiliates may also communicate independent investment recommendations, market color or trading ideas and/or publish or express independent research views in respect of such assets, securities or instruments and may at any time hold, or recommend to clients that they should acquire, long and/or short positions in such assets, securities and instruments.
Directed Share Program
At the Company’s request, the underwriters have reserved up to shares of the Company’s common stock, or 5% of the shares of common stock to be issued by the Company and offered by this prospectus (excluding the additional shares that the underwriters have an option to purchase), for sale, at the initial public offering price, to certain of the Company’s directors, officers, employees and others. Eligible participants must reside in the United States and be at least 18 years of age. Management will provide the list of prospective participants to Morgan Stanley & Co. LLC, an underwriter in this offering, who will administer the directed share program.
The Company cannot provide any assurance that any eligible participant will receive an invitation or will receive an allocation in the directed share program. Prospective participants must submit required documentation to the program administrator. If the directed share program is oversubscribed, allocations will be made at the discretion of management to eligible participants that indicated an interest in purchasing. The program administrator will notify each participant of his or her respective share allocation, along with the total purchase price due upon confirmation of participation. The shares under the directed share program will be allocated following pricing and settle in the same manner as the shares sold to the general public.
Any shares sold in the directed share program to the Company’s directors or officers who have entered into lock-up agreements described above will be subject to the provisions of such lock-up agreements. The number of shares of the Company’s common stock available for sale to the general public will be reduced to the extent such persons purchase such reserved shares. Any reserved shares that are not so purchased will be offered by the underwriters to the general public on the same terms as the other shares offered by this prospectus. The Company has agreed to indemnify Morgan Stanley & Co. LLC against certain liabilities and expenses, including liabilities under the Securities Act, in connection with the directed share program.
Selling Restrictions
European Economic Area
In relation to each Member State of the European Economic Area (each, a “Relevant Member State”), an offer to the public of any shares of common stock may not be made in that Relevant Member State, except that an offer to the public in that Relevant Member State of any shares of common stock may be made at any time under the following exemptions under the EU Prospectus Regulation:
(a)to any legal entity which is a “qualified investor” as defined under the EU Prospectus Regulation;
(b)to fewer than 150 natural or legal persons (other than “qualified investors” as defined under the EU Prospectus Regulation), subject to obtaining the prior consent of the underwriters for any such offer; or
(c)in any other circumstances falling within Article 1(4) of the EU Prospectus Regulation,
provided that no such offer of shares of common stock will result in a requirement for the Company or any of the underwriters to publish a prospectus pursuant to Article 3 of the Prospectus Regulation or a supplemental prospectus pursuant to Article 23 of the Prospectus Regulation and each person who initially acquires any shares of common stock or to whom any offer is made will be deemed to have represented, warranted, and agreed to and with each of the underwriters and the Company that it is a qualified investor within the meaning of Article 2 of the EU Prospectus Regulation.
In the case of any shares of common stock being offered to a financial intermediary as that term is used in Article 1(4) of the EU Prospectus Regulation, each financial intermediary will also be deemed to have represented, warranted, and agreed that the shares of common stock acquired by it in the offer have not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to, persons in circumstances which may give rise to an offer of any shares of common stock to the public, other than their offer or resale in a Relevant Member State to qualified investors as so defined or in circumstances in which the prior consent of the underwriters has been obtained to each such proposed offer or resale.
The Company, the underwriters and their affiliates will rely upon the truth and accuracy of the foregoing representations, warranties, and agreements. Notwithstanding the above, a person who is not a “qualified investor” and who has notified the underwriters of such fact in writing may, with the prior consent of the Notwithstanding the above, a person who is not a “qualified investor” and who has notified the underwriters of such fact in writing may, with the prior consent of the underwriters, be permitted to acquire shares of common stock in the offer.
For the purposes of this provision, the expression an “offer to the public” in relation to any shares of common stock 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 shares of common stock to be offered so as to enable an investor to decide to purchase or subscribe for any shares of common stock, and the expression “EU Prospectus Regulation” means Regulation (EU) 2017/1129.
United Kingdom
This prospectus has been prepared on the basis that the offering of the shares of common stock falls within one of the exceptions specified in Part 1 of Schedule 1 of the Public Offers and Admissions to Trading Regulations 2024 (the “POATRs”) and, accordingly, there will not be a prospectus prepared or published for the purposes of the POATRs. This prospectus does not constitute a prospectus for the purposes of the POATRs.
The underwriters have not made and will not make an offer of shares of common stock which are the subject of this prospectus to the public in the United Kingdom, except that they may make an offer:
(a)at any time to any legal entity which is a qualified investor as defined in paragraph 15 of Schedule 1 to the POATRs;
(b)at any time to fewer than 150 persons (other than qualified investors as defined in paragraph 15 of Schedule 1 to the POATRs) in the United Kingdom subject to obtaining the prior consent of the relevant underwriters nominated by the Company for any such offer; or
(c)at any time in any other circumstances falling within Part 1 of Schedule 1 to the POATRs.
For the purposes of this provision, the expression an “offer of shares of common stock” to the public in relation to any shares of common stock in the United Kingdom means the communication in any form and by any means of sufficient information on the terms of the offer and the shares of common stock to be offered so as to enable an investor to decide to purchase or subscribe for the shares of common stock.
Canada
The securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions, and Ongoing Registrant Obligations. Any resale of the securities must be made in accordance with an exemption form, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment hereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory of these rights or consult with a legal advisor.
Pursuant to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
Hong Kong
The shares may not be offered or sold in Hong Kong by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong), or the Companies (Winding Up and Miscellaneous Provisions) Ordinance, or which do not constitute an invitation to the public within the meaning of the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong), or the Securities and Futures Ordinance, or (ii) to “professional investors” as defined in the Securities and Futures Ordinance and any rules made thereunder, or (iii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance, and no advertisement, invitation or document relating to the 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 shares which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” in Hong Kong as defined in the Securities and Futures Ordinance and any rules made thereunder.
Singapore
This prospectus has not been and will not be registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the shares may not be circulated or distributed, nor may the shares be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor (as defined under Section 4A of the Securities and Futures Act, Chapter 289 of Singapore, or the SFA) under Section 274 of the SFA, or (ii) to an accredited investor as defined in Section 4A of the SFA pursuant to and in accordance with the conditions specified in Section 275 of the SFA.
Japan
The securities have not been and will not be registered under the Financial Instruments and Exchange Act of Japan (Act No. 25 of 1948, as amended), or the FIEA. The securities may not be offered or sold, directly or indirectly, in Japan or to or for the benefit of any resident of Japan (including any person resident in Japan or any corporation or other entity organized under the laws of Japan) or to others for reoffering or resale, directly or indirectly, in Japan or to or for the benefit of any resident of Japan, except pursuant to an exemption from the registration requirements of the FIEA and otherwise in compliance with any relevant laws and regulations of Japan.
Brazil
THE OFFER AND SALE OF THE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE BRAZILIAN SECURITIES COMMISSION (COMISSÃO DE VALORES MOBILIÁRIOS, OR “CVM”) AND, THEREFORE, WILL NOT BE CARRIED OUT BY ANY MEANS THAT WOULD CONSTITUTE A PUBLIC OFFERING IN BRAZIL UNDER CVM RESOLUTION NO 160, DATED 13 JULY 2022, AS AMENDED (“CVM RESOLUTION 160”) OR UNAUTHORIZED DISTRIBUTION UNDER BRAZILIAN LAWS AND REGULATIONS. THE SECURITIES MAY ONLY BE OFFERED TO BRAZILIAN PROFESSIONAL INVESTORS (AS DEFINED BY APPLICABLE CVM REGULATION), WHO MAY ONLY ACQUIRE THE SECURITIES THROUGH A NON-BRAZILIAN ACCOUNT, WITH SETTLEMENT OUTSIDE BRAZIL IN NON-BRAZILIAN CURRENCY. THE TRADING OF THESE SECURITIES ON REGULATED SECURITIES MARKETS IN BRAZIL IS PROHIBITED.
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 shares 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 shares without disclosure to investors under Chapter 6D of the Corporations Act.
The shares 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 shares 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.
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 Israel, this prospectus is being distributed only to, and is directed only at, and any offer of the shares is directed only at, (i) a limited number of persons in accordance with the Israeli Securities Law and (ii) 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 are 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 shares may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (“SIX”) or on any other stock exchange or regulated trading facility in Switzerland. This prospectus 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 prospectus nor any other offering or marketing material relating to the shares or the offering may be publicly distributed or otherwise made publicly available in Switzerland. Neither this prospectus nor any other offering or marketing material relating to the offering, the Company, the shares have been or will be filed with or approved by any Swiss regulatory authority. In particular, this prospectus will not be filed with, and the offer of shares will not be supervised by, the Swiss Financial Market Supervisory Authority FINMA (“FINMA”), and the offer of shares has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes (“CISA”). The investor protection afforded to acquirers of interests in collective investment schemes under the CISA does not extend to acquirers of shares.
LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon for us by Cooley LLP, San Francisco, California. Certain legal matters in connection with this offering will be passed upon for the underwriters by Davis Polk & Wardwell LLP, New York, New York.
EXPERTS
The financial statements of HawkEye 360, Inc. included in this prospectus and elsewhere in the registration statement have been so included in reliance upon the report of Grant Thornton LLP, independent registered public accountants, upon authority of said firm as experts in accounting and auditing.
The financial statements of Innovative Signal Analysis, Inc. (“ISA”) as of September 30, 2025 and December 31, 2024 and for the nine months ended September 30, 2025 and the year ended December 31, 2024 have been audited by Baker Tilly US, LLP, independent auditors as stated in their report thereon, and included in this prospectus and registration statement in reliance upon such report and upon the authority of such firm 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 under the Securities Act with respect to the shares of common stock being offered by this prospectus. This prospectus, which constitutes part of the registration statement, does not contain all of the information in the registration statement and its exhibits. For further information with respect to us and the common stock offered by this prospectus, we refer you to the registration statement and its exhibits. Statements contained in this prospectus as to the contents of any contract or any other document referred to are not necessarily complete, and in each instance, we refer you to the copy of the contract or other document filed as an exhibit to the registration statement. Each of these statements is qualified in all respects by this reference.
You can read our SEC filings, including the registration statement, over the internet at the SEC’s website at www.sec.gov. Upon completion of this offering, we will be subject to the information reporting requirements of the Exchange Act, and we will file reports, proxy statements, and other information with the SEC. These reports, proxy statements and other information will be available at www.sec.gov.
We also maintain a website at www.he360.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. The information contained in, or that can be accessed through, our website is not part of, and is not incorporated into, this prospectus, and the inclusion of our website address in this prospectus is only as an inactive textual reference.
INDEX TO HAWKEYE 360, INC. CONSOLIDATED FINANCIAL STATEMENTS
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INDEX TO INNOVATIVE SIGNAL ANALYSIS, INC. FINANCIAL STATEMENTS
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Board of Directors and Stockholders
HawkEye 360, Inc. and Subsidiaries
Opinion on the financial statements
We have audited the accompanying consolidated balance sheets of HawkEye 360, Inc. (a Delaware corporation) and subsidiaries (the “Company”) as of December 31, 2025 and 2024, the related consolidated statements of operations, comprehensive income (loss), mezzanine equity and stockholders’ deficit, and cash flows for each of the two years in the period ended December 31, 2025, and the related notes (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2025 and 2024, and the results of its operations and its cash flows for each of the two years in the period ended December 31, 2025, in conformity with accounting principles generally accepted in the United States of America.
Basis for opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated 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 the 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. Those standards require that we plan and perform the audit 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/ GRANT THORNTON LLP
We have served as the Company’s auditor since 2021.
Arlington, Virginia
April 10, 2026
HawkEye 360, Inc. and Subsidiaries
Consolidated Balance Sheets
(in thousands, except per share and share amounts)
| | | | | | | | | | | |
| December 31, |
| 2025 | | 2024 |
| Assets | | | |
| Current assets: | | | |
| Cash and cash equivalents | 92,686 | | | 67,179 | |
| Contract accounts receivable | 32,320 | | | 11,577 | |
Contract accounts receivable from related parties | 20,969 | | | 67 | |
| Other accounts receivable | 21 | | | 42 | |
Inventory | 4,025 | | | — | |
| Contract assets | 4,639 | | | 54 | |
| Contract assets from related parties | 4,748 | | | 4,701 | |
| Investments at fair value | — | | | 39,716 | |
| Prepaid expenses and other current assets | 9,183 | | | 3,453 | |
Total current assets | 168,591 | | | 126,789 | |
| Long-term assets: | | | |
| Satellites, property and equipment, net | 110,873 | | | 116,434 | |
| Intangibles, net | 35,973 | | | 1,000 | |
Goodwill | 116,866 | | | — | |
| Operating lease - right-of-use-assets | 15,403 | | | 8,789 | |
| Deposits | 35,932 | | | 3,441 | |
| Restricted cash | 4,587 | | | 4,587 | |
| Other long-term assets | 1,715 | | | — | |
Total long-term assets | 321,349 | | | 134,251 | |
Total assets | $ | 489,940 | | | $ | 261,040 | |
| Liabilities, mezzanine equity and stockholders’ deficit | | | |
| Current liabilities: | | | |
| Accounts payable | 18,486 | | | 10,609 | |
Accrued expenses and other current liabilities | 5,017 | | | 2,741 | |
Accrued compensation payable | 10,511 | | | 5,917 | |
| Contract liabilities | 3,262 | | | 707 | |
| Current portion of operating lease liabilities | 3,437 | | | 3,276 | |
Total current liabilities | 40,713 | | | 23,250 | |
| Long-term liabilities: | | | |
Long-term debt, net of unamortized debt issuance cost | 46,315 | | | — | |
Long-term contract liabilities | 19,892 | | | — | |
Other liabilities | 23,800 | | | — | |
| Deferred tax liabilities | 977 | | | — | |
| Warrant liabilities | 4,267 | | | 362 | |
Operating lease liabilities, net of current portion | 12,893 | | | 6,509 | |
Total long-term liabilities | 108,144 | | | 6,871 | |
Total liabilities | $ | 148,857 | | | $ | 30,121 | |
Commitment and contingencies - Note 17 | | | |
Mezzanine equity | | | |
| Redeemable, convertible preferred stock Series A - $.0001 par value, 24,947,154 shares authorized and issued as of December 31, 2025 and 2024 (aggregate liquidation preference of $30,400 as of December 31, 2025) | 34,174 | | | 34,174 | |
| Redeemable, convertible preferred stock Series B - $.0001 par value, 11,574,841 shares authorized and issued as of December 31, 2025 and 2024 (aggregate liquidation preference of $70,000 as of December 31, 2025) | 66,442 | | | 66,442 | |
| Redeemable, convertible preferred stock Series C - $.0001 par value, 6,960,439 shares authorized and issued as of December 31, 2025 and 2024 (aggregate liquidation preference of $55,001 as of December 31, 2025) | 48,761 | | | 48,761 | |
HawkEye 360, Inc. and Subsidiaries
Consolidated Balance Sheets
(in thousands, except per share and share amounts)
| | | | | | | | | | | |
| Redeemable, convertible preferred stock Series D - $.0001 par value, 12,857,720 shares authorized and issued as of December 31, 2025 and 2024 (aggregate liquidation preference of $151,000 as of December 31, 2025) | 136,715 | | | 136,715 | |
| Redeemable, convertible preferred stock Series D-1 - $.0001 par value, 6,085,161 shares authorized and issued as of December 31, 2025 and 2024 (aggregate liquidation preference of $68,000 as of December 31, 2025) | 58,894 | | | 58,894 | |
Redeemable, convertible preferred stock Series E - $.0001 par value, 14,578,457 shares authorized and 5,567,364 shares issued and outstanding as of December 31, 2025 (aggregate liquidation preference of $106,020 as of December 31, 2025) | 102,600 | | | — | |
Total mezzanine equity | 447,586 | | | 344,986 | |
Stockholders' deficit | | | |
| Common stock - $.0001 par value, 111,000,000 shares authorized and 4,168,374 shares issued and outstanding as of December 31, 2025 and 96,100,000 shares authorized and 3,831,787 shares issued and outstanding as of December 31, 2024 | 2 | | | 2 | |
| Additional paid-in-capital | 39,336 | | | 34,433 | |
| Accumulated other comprehensive income | — | | | 12 | |
| Accumulated deficit | (145,841) | | | (148,514) | |
| Total stockholders' deficit | (106,503) | | | (114,067) | |
Total liabilities, mezzanine equity, and stockholders’ deficit | 489,940 | | | 261,040 | |
The accompanying notes are an integral part of these consolidated financial statements.
HawkEye 360, Inc. and Subsidiaries
Consolidated Statements of Operations
(in thousands except share and per share amounts)
| | | | | | | | | | | |
| Year Ended December 31, |
| 2025 | | 2024 |
| Revenue | $ | 98,743 | | | $ | 49,835 | |
| Revenue from related parties | 18,917 | | | 17,724 | |
Total revenue | 117,660 | | | 67,559 | |
Operating expenses: | | | |
| Direct cost of sales, excluding depreciation and amortization | 21,687 | | | 18,927 | |
| Indirect cost of sales and other expenses, excluding depreciation and amortization | 2,092 | | | 1,421 | |
| Selling, general and administrative | 46,291 | | | 31,919 | |
| Research and development | 28,913 | | | 24,793 | |
| Depreciation and amortization | 23,568 | | | 25,185 | |
Total operating expenses | 122,551 | | | 102,245 | |
Loss from operations | (4,891) | | | (34,686) | |
Other income (expense): | | | |
| Interest income | 3,409 | | | 5,799 | |
| Interest expense | (304) | | | (177) | |
Other (expense) income, net | (2,274) | | | 67 | |
Total other income, net | 831 | | | 5,689 | |
| Loss before income taxes | (4,060) | | | (28,997) | |
| Income tax benefit | 6,733 | | | — | |
Net income (loss) | $ | 2,673 | | | $ | (28,997) | |
| Preferred stock dividend | (2,224) | | | (2,224) | |
| Income allocated to participating securities | (401) | | | — | |
Net income (loss) attributable to common shareholders | $ | 48 | | | $ | (31,221) | |
| Net income (loss) per share of common stock, basic and diluted | $ | 0.01 | | | $ | (5.00) | |
| Weighted-average shares outstanding, basic | 7,511,429 | | | 6,249,867 | |
| Weighted-average shares outstanding, diluted | 13,812,329 | | | 6,249,867 | |
The accompanying notes are an integral part of these consolidated financial statements.
HawkEye 360, Inc. and Subsidiaries
Consolidated Statements of Comprehensive Income (Loss)
(in thousands)
| | | | | | | | | | | |
| Year Ended December 31, |
| 2025 | | 2024 |
| Net income (loss) from continuing operations | $ | 2,673 | | | $ | (28,997) | |
| Other comprehensive income (loss), before tax: | | | |
| Unrealized (loss) gain on securities held for sale | (12) | | | 12 | |
Comprehensive income (loss), before tax | $ | 2,661 | |
| $ | (28,985) | |
| Income tax benefit related to items of comprehensive loss | — | | | — | |
Comprehensive income (loss), net of tax | $ | 2,661 | | | $ | (28,985) | |
The accompanying notes are an integral part of these consolidated financial statements.
HawkEye 360, Inc. and Subsidiaries
Consolidated Statements of Mezzanine Equity and Stockholders’ Deficit
(in thousands except share and per share amounts)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Mezzanine Equity | | Common Stock | | Accumulated Other Comprehensive Income (Loss) | | Additional Paid in Capital | | Accumulated Deficit | | Stockholders’ Deficit |
| Redeemable Convertible Preferred Stock* | | | | | |
| Shares | | Amount | | Shares | | Amount | | | | |
Balance, December 31, 2023 | 62,425,315 | | | $ | 344,986 | | | 3,776,783 | | | $ | 2 | | | $ | — | | | $ | 31,533 | | | $ | (119,517) | | | $ | (87,982) | |
| Stock-based compensation | — | | | — | | | — | | | — | | | — | | | 2,885 | | | — | | | 2,885 | |
| Exercise of stock options | — | | | — | | | 55,004 | | | — | | | — | | | 15 | | | — | | | 15 | |
| Other comprehensive gain | — | | | — | | | — | | | — | | | 12 | | | — | | | — | | | 12 | |
| Net loss | — | | | — | | | — | | | — | | | — | | | — | | | (28,997) | | | (28,997) | |
Balance, December 31, 2024 | 62,425,315 | | | $ | 344,986 | | | 3,831,787 | | | $ | 2 | | | $ | 12 | | | $ | 34,433 | | | $ | (148,514) | | | $ | (114,067) | |
| Stock-based compensation | — | | | — | | | — | | | — | | | — | | | 4,290 | | | — | | | 4,290 | |
| Issuance of Series E preferred stock, net of issuance costs | 5,567,364 | | | 102,600 | | | — | | | — | | | — | | | — | | | — | | | — | |
| Exercise of stock options and warrants | — | | | — | | | 336,587 | | | — | | | — | | | 613 | | | — | | | 613 | |
| Other comprehensive loss | — | | | — | | | — | | | — | | | (12) | | | — | | | — | | | (12) | |
| Net income | — | | | — | | | — | | | — | | | — | | | — | | | 2,673 | | | 2,673 | |
Balance, December 31, 2025 | 67,992,679 | | | $ | 447,586 | | | 4,168,374 | | | $ | 2 | | | $ | — | | | $ | 39,336 | | | $ | (145,841) | | | $ | (106,503) | |
*Refer to consolidated balance sheets and Note 9 for details of the classes of historic preferred shares.
The accompanying notes are an integral part of these consolidated financial statements.
HawkEye 360, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(In thousands)
| | | | | | | | | | | |
| Year Ended December 31, |
| 2025 | | 2024 |
| Cash flows from operating activities: | | | |
| Net income (loss) | $ | 2,673 | | | $ | (28,997) | |
Adjustments to reconcile net income (loss) to net cash (used in) provided by operating activities: | | | |
| Depreciation and amortization | 23,568 | | | 25,185 | |
| Amortization of debt issuance costs | 120 | | | 179 | |
Non-cash interest expense | 20 | | | — | |
| Fair value loss on revaluation of warrants | 2,270 | | | — | |
| Stock-based compensation | 4,290 | | | 2,885 | |
| Non-cash lease expense | 3,516 | | | 3,263 | |
| Changes in fair value of financial instruments and contingent liabilities | — | | | (68) | |
| Realized loss on short-term investments | (12) | | | — | |
Changes in operating assets and liabilities, net of effect of acquisitions: | | | |
Contract accounts receivable | (18,686) | | | 131 | |
Contract accounts receivable from related parties | (20,903) | | | 27 | |
Other accounts receivable | 21 | | | — | |
Contract assets | 2,142 | | | 2,800 | |
Contract assets from related parties | (47) | | | (2,173) | |
Prepaid expenses and other assets | (37,805) | | | 1,814 | |
Operating lease liabilities | (3,585) | | | (2,679) | |
Accounts payable | 6,614 | | | 8,544 | |
Accrued expenses and other current liabilities | (1,549) | | | 1,224 | |
Accrued compensation payable | 4,596 | | | — | |
Contract liabilities | 22,151 | | | (169) | |
Deferred tax liabilities | (6,733) | | | — | |
Net cash (used in) provided by operating activities | (17,339) | | | 11,966 | |
| Cash flows from investing activities: | | | |
Proceeds from redemption of investments | 39,716 | | | — | |
Purchase of short-term investments | — | | | (39,716) | |
| Acquisition of business, net of cash acquired | (111,912) | | | — | |
| Purchases of satellites, property and equipment | (11,067) | | | (35,751) | |
Net cash used in investing activities | (83,263) | | | (75,467) | |
| Cash flows from financing activities: | | | |
Proceeds from long-term debt | 48,600 | | | — | |
| Repayment of term loans | — | | | (10,500) | |
| Payment of debt issuance cost | (704) | | | (199) | |
Proceeds from issuance of preferred stock | 80,020 | | | — | |
Payment of preferred stock issuance costs | (2,420) | | | — | |
| Exercise of stock options / warrants | 613 | | | 15 | |
| Payment of contingent consideration | — | | | (288) | |
| Issuance of warrants | — | | | 68 | |
Net cash provided by (used in) financing activities | 126,109 | | | (10,904) | |
Net increase (decrease) in cash, cash equivalents and restricted cash | 25,507 | | | (74,405) | |
Cash, cash equivalents and restricted cash, beginning of period | 71,766 | | | 146,171 | |
Cash, cash equivalents and restricted cash, end of period | $ | 97,273 | | | $ | 71,766 | |
| | | |
| Reconciliation of cash, cash equivalents and restricted cash | | | |
| Cash and cash equivalents | $ | 92,686 | | | $ | 67,179 | |
| Restricted cash | 4,587 | | | 4,587 | |
HawkEye 360, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(In thousands)
| | | | | | | | | | | |
Total cash, cash equivalents and restricted cash at the end of the period | $ | 97,273 | | | $ | 71,766 | |
| Supplemental disclosures of cash flow information | | | |
| Cash paid for interest | $ | — | | | $ | 282 | |
| Operating cash outflows - payment on operating leases | 3,579 | | | 3,027 | |
| Non-cash investing and financing activities | | | |
Series E Preferred Stock issued as consideration for ISA acquisition | 25,000 | | | — | |
| Deferred consideration related to the ISA acquisition | 23,800 | | | — | |
| Operating lease right-of-use assets obtained in exchange for lease liabilities | 1,322 | | | — | |
| Unrealized loss on available-for-sale investments | — | | | (12) | |
| Issuance of warrants | — | | | 68 | |
The accompanying notes are an integral part of these consolidated financial statements.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 – NATURE OF BUSINESS AND BASIS OF PRESENTATION
HawkEye 360, Inc. (the “Company”), formed in the State of Delaware in 2015, is a trusted signals intelligence (“SIGINT”) partner of the United States and its allies, committed to advancing national interests through the use of its innovative technology. The Company’s mission is to provide actionable, trusted, and valuable signals intelligence to the U.S. Government and allied international customers.
The Company provides secure end-to-end signals solutions which are tightly integrated into the fabric of national security architecture. As a trusted signals intelligence partner to the U.S. Government and international allies, the Company is the first space-enabled defense technology company to disrupt electronic warfare at scale. The Company delivers shareable, battlefield-proven radio frequency insights that support Warfighters during varied cycles of geopolitical volatility. The Company operates across the entire value chain, designing and building its own satellites, collecting data, and performing advanced processing and analysis, to deliver capabilities and insights to customers across the global allied defense landscape.
The Company’s offerings span the SIGINT value chain, comprising hardware and software solutions, comprehensive training programs, data products, embedded analysts for spectrum exploitation, and extensive data products. The Company’s offerings solve a breadth of mission requirements, including mission-critical defense and intelligence applications, humanitarian-oriented solutions, and sustainability-focused capabilities.
In December 2025, the Company completed its acquisition of Innovative Signal Analysis, Inc. (“ISA”). This acquisition enhances the Company’s existing offerings by providing multi-domain, real-time automated hosted payloads, expanded ground processing, and highly trusted development support for the signals intelligence community. ISA expands the Company’s processing capabilities and signal database into classified data, strengthening the Company’s relationship with the U.S. Government and the U.S. intelligence community. This acquisition allows the Company to combine unclassified satellite collectors with highly trusted classified algorithms, unlocking a larger national security augmentation market. Additionally, unclassified ISA algorithms and expertise enhance the Company’s signal processing platform, allowing the Company to offer improved, automated capabilities to an expanded set of customers.
The accompanying consolidated financial statements include the accounts of the Company’s wholly owned subsidiaries, HawkEye 360 Federal, Inc., Aurora Insight, Inc and ISA whose assets and liabilities were recognized at fair value from the date of acquisition. All intercompany accounts and transactions have been eliminated in consolidation.
Prior Year Reclassification
Prior-year amounts have been reclassified to conform to the current year presentation. For the year ended December 31, 2024, the Company reclassified certain amounts previously included in cost of sales to depreciation and amortization, direct cost of sales, excluding depreciation and amortization, and to indirect cost of sales and other expenses, excluding depreciation and amortization. In addition, certain amounts were reclassified from selling general and administrative expenses to depreciation and amortization. These reclassifications were made to improve comparability between periods and had no impact on previously reported net loss, total assets, total liabilities, stockholders’ deficit, or cash flows.
Correction of an Immaterial Error in Prior Period Financials
Also, during the preparation of the consolidated financial statements for the year ended December 31, 2025, the Company identified an immaterial share-based compensation error between selling general and administrative expense and additional paid-in capital (“APIC”) that originated in the year ended December 31, 2019, and remained uncorrected through the year December 31, 2024. The error
originated from the accounting treatment of certain performance-based option grants. Accordingly, the Company corrected the presentation by reclassifying $0.1 million from accumulated deficit to APIC in the consolidated statements of stockholders’ deficit opening balances as of January 1, 2024. The Company recorded an increase of $0.4 million in selling, general and administrative expense, $0.3 million in direct cost of sales, and in research and development $0.6 in the consolidated statements of income (loss) for the year ended December 31, 2024. The Company also recorded $1.3 million to APIC related to the increase in share-based compensation expense in the consolidated balance sheet as of December 31, 2024. The Company evaluated the error and deemed it immaterial for all related periods both on an individual and cumulative basis.
Liquidity
The consolidated financial statements of the Company have been prepared on a going concern basis, which contemplates the realization of assets and the discharge of liabilities in the normal course of business. The Company held cash and cash equivalents of $92.7 million, excluding restricted cash, and held no available-for-sale investment securities as of December 31, 2025, compared to $67.2 million as of December 31, 2024. The Company maintains performance bonds in the form of letters of credit for international customers, reported as restricted cash.
The Company has incurred an accumulated deficit totaling $145.8 and $148.5 million as of December 31, 2025 and December 31, 2024, respectively. For the year ended December 31, 2025, the Company generated net income of $2.7 million, as compared to a net loss of $29.0 million for the year ended December 31, 2024. The Company generated negative cash flows from operating activities of $17.3 million in 2025, as compared to cash flows from operating activities of $12.0 million during 2024.
As of December 31, 2025, the Company had outstanding debt of $46.3 million. As of December 31, 2024, the Company had no outstanding debt. The Company entered into $46.3 million of these debt arrangements in connection with the ISA acquisition. The Company was not in compliance with certain debt covenants for its undrawn revolving credit facility as of December 31, 2024 (refer to Note 8 - Debt); however, the lender provided a waiver. As a result, the noncompliance was fully remedied. The Company was in compliance with all debt covenants as of December 31, 2025.
NOTE 2 – SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Use of Estimates
The preparation of financial statements in conformity with U.S. generally accepted accounting principles (“U.S. GAAP”) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the reported amounts of revenue and expenses in the consolidated financial statements and accompanying notes.
The Company’s most significant estimates and judgments involve the valuation of share-based compensation, including the fair value of common stock, allocation of stand-alone selling price used in revenue recognition, impairment of long-lived assets, and the fair value of certain equity instruments such as warrants. These estimates also include the assumptions used in accounting for business combinations, including the valuation of assets acquired and liabilities assumed in connection with the ISA acquisition. Management bases its estimates on historical experience and on various other assumptions believed to be reasonable, the results of which form the basis for making judgments about the carrying values of assets and liabilities. The Company periodically reviews its estimates and makes adjustments when facts and circumstances dictate. To the extent that there are material differences between these estimates and actual results, our financial condition or results of operations will be affected.
Segment Reporting
The Company reports financial and operating results as a single segment based on the consolidated information used by the chief operating decision-maker (“CODM”) to allocate resources and to evaluate financial performance. The Company does not manage its business or allocate its resources based on the products or services it offers to its customers. Rather, the Company focuses on delivering quality products and services that meet the needs of each customer. The Company adopted Accounting Standards Update (“ASU”) 2023-07, Segment Reporting (Topic 280): Improvements to Reportable Segment Disclosures, on a retrospective basis. At the present time, the Company identifies as a single operating and reportable segment.
Concentration of Credit Risk
Financial instruments which potentially subject the Company to concentrations of credit risk consist of cash and cash equivalents, restricted cash, investments, and trade receivables. At times, such cash may be in excess of the FDIC limit. The Company believes it is not exposed to any significant credit risk on cash and cash equivalents as the Company’s cash and cash equivalents are placed with high-credit quality financial institutions and issuers. To date, the Company has not experienced any credit loss relating to its cash and cash equivalents.
With respect to contract accounts receivable, the Company routinely assesses the financial strength of its customers and, therefore, believes that the receivable credit risk exposure is limited.
The Company has a concentration of contractual revenue arrangements with governmental agencies and commercial entities. Entities under common control are reported as single customers. The Company had the following customers whose revenue and accounts receivable balances individually represented 10% or more of the Company’s total revenue and/or accounts receivable:
| | | | | | | | | | | | | | | | | | | | | | | |
| As of and for the Year Ended December 31, | | As of and for the Year Ended December 31, |
| 2025 | | 2024 |
| Revenue | | Accounts Receivable | | Revenue | | Accounts Receivable |
| Customer A | 34 | % | | <10 % | | 14 | % | | <10 % |
| Customer B | 16 | % | | 60 | % | | 21 | % | | <10 % |
| Customer C | 11 | % | | <10 % | | 16 | % | | 14 | % |
| Customer D | <10 % | | <10 % | | 7 | % | | 14 | % |
| Customer E | <10 % | | 16 | % | | 6 | % | | 13 | % |
| Customer F | <10 % | | <10 % | | 10 | % | | <10 % |
| Customer G | <10 % | | <10 % | | <10 % | | 23 | % |
The Company’s accounts receivable from related parties as of December 31, 2025 and 2024 was $21.0 million and $0.1 million, respectively.
Restricted Cash
The Company holds restricted cash balances as collateral on performance bonds in the form of letters of credit for one of its international customers. This is reported as restricted cash on the consolidated balance sheets.
Cash and Cash Equivalents
The Company considers all highly liquid investments with a maturity of three months or less at the time of purchase to be cash equivalents. Cash and cash equivalents include cash held in banks, money market accounts, and highly liquid investments with original maturities of three months or less when
purchased. Cash equivalents are carried at cost, which approximates fair value due to their short-term nature.
Contract Accounts Receivable
Contract accounts receivable are generated primarily from contracts with U.S. government agencies, international government agencies and commercial clients, both domestic and international. Trade receivables represent invoices that have been prepared based on contract terms and submitted to the customer. Trade receivables are considered past due if the invoice has been outstanding for more than 30 days.
Accounts receivables represent amounts billed and due from customers and billable when there is an unconditional right to the consideration in accordance with respective contractual terms. The amounts are stated at their net realizable value. The Company estimates an allowance for credit loss to reflect the amount of receivables that will not be collected.
The Company maintains the majority of its accounts receivable with a limited number of customers. As of December 31, 2025, 76% was due from two major customers and as of December 31, 2024, 74% of the Company’s accounts receivable were due from five major customers.
The Company’s contract accounts receivable (including contract accounts receivable from related parties) as of December 31, 2025, was $53.3 million, as compared to $11.7 million as of December 31, 2024.
The Company establishes allowances for credit losses in accounts receivable and contract assets. To measure expected credit losses, management considers historical collectability based on past due status as well as market conditions and forecasts of future economic conditions to inform potential adjustments to historical loss data. In addition, the Company records allowance for credit losses for specific receivables that are deemed to have a higher risk profile than the rest of the respective pool of receivables, such as concerns about a specific customer’s inability to meet its financial obligations. The adequacy of these allowances is assessed regularly through consideration of factors on a collective basis where similar characteristics exist and on an individual basis. Historically, the Company has not had any material or significant write offs. Management does not consider an allowance necessary as of December 31, 2025 and 2024.
Inventory
Inventory is stated at the lower of cost and net realizable value using the first-in, first-out (“FIFO”) method. Inventories consist primarily of raw materials and finished goods for use in the Company’s government contracts. The Company periodically evaluates the carrying value of inventory, considering factors such as its physical condition, sales patterns, and demand in order to estimate the amount necessary to write down any slow moving, obsolete or damaged inventory. As of December 31, 2025, there were no reserves for inventory. Inventory as of December 31, 2025, consisted of the following:
| | | | | | | | |
| | |
| Raw materials | | $ | 3,230 | |
| Work-in-process | | 599 | |
| Finished goods | | 196 | |
| Total inventory | | $ | 4,025 | |
Investments
The Company’s investments are primarily comprised of U.S. Treasury and U.S. Government Bonds. The primary objective of these investments is to preserve capital and liquidity. The Company’s short-term investments have been classified as available-for-sale securities. Available-for-sale securities with
remaining maturities of less than one year and those identified by management at the time of purchase to be used to fund operations within one year are classified as short-term. Management determines the appropriate classification of its investments at the time of purchase and reevaluates classification at each balance sheet date. The Company’s investments are carried at fair value, with changes in the fair value of available-for-sale securities included in accumulated other comprehensive loss unless decreases in value are deemed to be other than temporary, in which case they would be recognized in operations. The Company limits its credit exposure through diversification and by restricting its investments to highly rated securities.
Satellites, Property, and Equipment
Satellites, property, and equipment are stated at historical cost, less accumulated depreciation and amortization, except if acquired via a business combination, in which case the assets are recorded at fair value at the acquisition date. Capitalized costs consist primarily of the costs to construct satellites including materials, launch services, insurance, interest, and labor cost incurred during the construction period.
Depreciation and amortization charges start on the date an asset is placed in service. For satellites, the commission date is considered the in-service date. Depreciation and amortization are recognized over the estimated useful lives of the asset ranging from two to five years using the straight-line method. Amortization of leasehold improvements is computed using the straight-line method over the shorter of the useful lives of the improvement or the term of the related lease. Satellite builds in progress are not depreciated as they have not been placed into service.
Satellites, property, and equipment are depreciated or amortized based upon the following estimated useful lives:
| | | | | | | | |
| | Estimated useful lives in years |
| Satellites | | 2 to 5 |
| Machinery and equipment | | 5 |
| Computer equipment | | 3 |
| Software | | 3 |
| Furniture and fixtures | | 5 |
| Leasehold improvements | | Lesser of lease term or life of improvement |
Maintenance and repairs are charged to expense as incurred.
Leases
The Company determines whether a contract is or contains a lease at contract inception by evaluating whether substitution rights exist and whether the Company obtains substantially all of the benefits and directs the use of the identified asset. When the Company determines a lease exists, the Company records a right-of-use asset and corresponding lease liability in the consolidated balance sheets. Right-of-use assets represent the Company’s right to use an underlying asset for the lease term. Lease liabilities represent the Company’s obligation to make lease payments arising from the lease. Right-of-use assets are recognized at the commencement date of the lease at the value of the lease liability, adjusted for any prepayments, lease incentives received, and initial direct costs incurred.
Lease liabilities are recognized at the commencement date of the lease based on the present value of remaining lease payments over the lease term. As the discount rate implicit in the lease is not readily determinable in most leases, the Company uses its incremental borrowing rate based on the information available at the commencement date of the lease in determining the present value of lease payments.
Lease terms may include options to extend or terminate the lease when it is reasonably certain that the Company will exercise that option.
The Company does not record lease contracts with a lease term of 12 months or less on its consolidated balance sheets. Fixed lease expenses associated with these short-term contracts are expensed on a straight-line basis over the lease term.
The Company recognizes lease expense for operating leases on a straight-line basis over the lease term. The Company has lease agreements with non-lease components that relate to the lease components. The Company accounts for the lease and non-lease components as a single lease.
Some leasing arrangements require variable payments that are dependent on usage, output, or may vary for other reasons, such as insurance and tax payments. These variable lease costs are recognized as incurred over the lease term.
The Company does not include significant restrictions or covenants in lease agreements, and residual value guarantees are generally not included within the Company’s leases.
Intangible Assets, Net
Intangible assets consist of purchased intangible assets including trade name, customer contracts, and developed technology and are amortized over their useful lives using the straight-line method of amortization. The Company evaluates the recoverability of intangible assets periodically by considering events or circumstances that may warrant revised estimates of useful lives or that indicate the asset may be impaired.
Goodwill
Goodwill represents the excess of purchase price and related costs over the value assigned to the net tangible and identifiable intangible assets of businesses acquired. Goodwill is reviewed annually on the first day of the fourth quarter of each year (or more frequently if impairment indicators arise) for impairment. To review for impairment, the Company first assesses qualitative factors to determine whether events or circumstances lead to a determination that it is more likely than not that the fair value of a reporting unit is less than its carrying amount. In performing this assessment, the Company’s evaluation of the recoverability of goodwill, whether performed annually or based on specific events or circumstances, considers various macroeconomic, industry-specific and company-specific factors.
After assessing the totality of events and circumstances, if determined that it is not more likely than not that the fair value of a reporting unit is less than its carrying amount, no further assessment is performed. If the Company determines that it is more likely than not that the fair value of a reporting unit is less than its carrying amount, the Company will calculate the fair value of that reporting unit and compare the fair value to the reporting unit’s net book value. If the fair value of the reporting unit is greater than its net book value, there is no impairment. Otherwise, a goodwill impairment charge will be recorded for the amount by which the carrying value of the reporting unit exceeds its fair value up to the amount of the goodwill. Determining the fair value of a reporting unit involves the use of significant estimates and assumptions. See further discussion in Note – 6 Intangible assets and Goodwill.
Impairment of Long-lived Assets
The Company reviews long-lived assets, including satellites, property, and equipment, and finite-lived intangible assets, for impairment whenever events or changes in circumstances indicate that an asset group’s carrying amount may not be recoverable. The Company conducts its long-lived asset impairment analysis in accordance with Accounting Standards Codification (“ASC”) 360-10, Impairment or Disposal of Long-Lived Assets, which requires the Company to group assets and liabilities at the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities and evaluate the asset group against the sum of the undiscounted future cash flows. If the undiscounted cash
flows do not indicate the carrying amount of the asset group is recoverable, an impairment charge is measured as the amount by which the carrying amount of the asset group exceeds its fair value.
There were no impairment charges for the years ended December 31, 2025 and 2024.
Business Combinations
The Company accounts for business combinations under the acquisition method of accounting. Under this method, acquired assets, including separately identifiable intangible assets, and any assumed liabilities are recorded at their acquisition date estimated fair value. The excess of purchase price over the fair value amounts assigned to the assets acquired and liabilities assumed is recorded as goodwill. When the consideration transferred by the Company in a business combination includes assets or liabilities resulting from a contingent consideration arrangement, the contingent consideration is measured at its acquisition date fair value and included as part of the consideration transferred in the business combination with subsequent fair value adjustments recorded in results of operations. These fair value determinations require judgment and involve the use of significant estimates and assumptions, including assumptions with respect to the selection of valuation methodologies, estimates of future cash inflows and outflows, discount rates, and selection of comparable companies. During the measurement period, which may be up to one year from the acquisition date, if the initial accounting for a business combination is incomplete, the Company may record adjustments to the fair value of assets acquired and liabilities assumed, with a corresponding offset to goodwill. Transaction expenses incurred in connection with a business combination, other than costs associated with the issuance of debt or equity securities, are expensed as incurred. The operating results of acquired businesses are included in the Company’s results of operations beginning as of their effective acquisition dates.
Mezzanine Equity
Preferred stock agreements entered into which entitle the stockholders to a proportionate share in the fair value of the Company, similar to a shareholder, including a share in profit or loss, according to an agreed participation rate, are classified as mezzanine equity pursuant to ASC 480, Distinguishing Liabilities from Equity (“ASC 480”), and ASC 815, Derivatives and Hedging (“ASC 815”). The stockholder interests are evaluated for equity or mezzanine classification based upon the nature of the partnership settlement provisions which unilaterally provided the Company the option to settle the obligation in cash or a variable number of shares. However, when a settlement in shares cannot always be presumed, irrespective of probability of the event occurring, a classification outside of stockholders' deficit is required. Mezzanine equity was initially measured at fair value and subsequently at the redemption value at each reporting period, which represents the proceeds resulting from an exit event, such as a trade sale or initial public offering.
Fair Value Measurements
ASC 820, Fair Value Measurements and Disclosures (“ASC 820”), clarifies that fair value is an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. As such, fair value is a market-based measurement that should be determined based upon assumptions that market participants would use in pricing an asset or liability.
As a basis for considering such assumptions, ASC 820 establishes a three-tier fair value hierarchy, which prioritizes the inputs used in measuring fair value as follows:
Level 1: Quoted prices (unadjusted) for identical assets or liabilities in active markets that the Company can access at the measurement date.
Level 2: Significant other observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities, quoted prices in markets that are not active or other inputs that are observable or can be corroborated by observable market data.
Level 3: Significant unobservable inputs that reflect the Company’s own assumptions about the assumptions that market participants would use in pricing an asset or liability.
The fair value measurement of an asset or liability within the fair value hierarchy is determined based on the lowest level of any input that is significant to the measurement. The Company believes its valuation methods are appropriate and consistent with other market participants, however the use of different methodologies or assumptions to determine the fair value of certain financial instruments could result in a different fair value measurement at the reporting date.
The Company’s financial instruments consist of cash and cash equivalents, restricted cash, investments, contract accounts receivable, debt, accounts payable, contingent consideration, deferred consideration related to business combinations and warrants. The carrying value of cash and cash equivalents, restricted cash, contract accounts receivable, other accounts receivable, accounts payable, and accrued expenses and other liabilities approximate their fair value due to the relatively short maturity of these instruments. The carrying value of the debt approximates its fair value as of December 31, 2025 as the debt was entered into on December 18, 2025.
The fair value of investments is determined by quoted market prices, which are determined to be Level 1 inputs.
The fair value of the contingent consideration and at-the-money warrants is classified as a Level 3 measurement within the fair value hierarchy, as it relies on significant inputs that are not observable in the market. These valuations use assumptions and estimates that the Company believes market participants would apply in determining fair value. The Company assesses these assumptions and estimates on an on-going basis as additional data impacting the assumptions and estimates are obtained. Changes in the fair value of the contingent consideration and at-the-money warrants related to updated assumptions and estimates are recognized within the consolidated statement of operations and comprehensive loss in other income, net.
Revenue Recognition
The Company recognizes revenue in accordance with ASC 606, Revenue from Contracts with Customers (“ASC 606”). In accordance with ASC 606, revenue is recognized when a customer obtains control of promised goods and services. The core principle of the standard is that the Company should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the Company expects to be entitled in exchange for those goods or services. To achieve that core principle, the Company applies the following five-step model:
1)Identify the contract with the customer
2)Identify the performance obligations in the contract
3)Determine the transaction price
4)Allocate the transaction price to the performance obligations in the contract
5)Recognize revenue when (or as) each performance obligation is satisfied
Identify the contract with the customer: A contract with a customer exists when (i) the Company enters into an enforceable contract with a customer that defines each party’s rights regarding the goods or services to be transferred and identifies the related payment terms, (ii) the contract has commercial substance, and (iii) the Company determines that collection of substantially all consideration for goods and services that are transferred is probable based on the customer’s intent and ability to pay the promised consideration. The Company applies judgment in determining the customer’s intent and ability to pay, which is based on a variety of factors including the customer’s historical payment experience, or in the case of a new customer, published credit and financial information pertaining to the customer.
The Company evaluates contract modifications for the impact on revenue recognition when they have been approved by both parties such that the enforceable rights and obligations under the contract have changed. Contract modifications are either accounted for using a cumulative effect adjustment or prospectively over the remaining term of the arrangement. The determination of which method is more appropriate depends on the nature of the modification, which the Company evaluates on a case-by-case basis.
The Company combines two or more contracts entered into at, or near the same time, with the same customer and accounts for them as a single contract if (i) the contracts are negotiated as a package with a common commercial objective, (ii) the amount of consideration to be paid in one contract depends on the price or performance of the other contract, or (iii) some or all of the goods or services in one contract would be combined with some or all of the goods and services in the other contract into a single performance obligation. If two or more contracts are combined, the consideration to be paid is aggregated and allocated to the individual performance obligations without regard to the consideration specified in the individual contracts.
Identify the performance obligations in the contract: Performance obligations promised in a contract are identified based on the goods and services that will be transferred to the customer that are both capable of being distinct, whereby the customer can benefit from the good or service either on its own or together with other available resources, and are distinct in the context of the contract, whereby the transfer of the good or service is separately identifiable from other promises in the contract. To the extent a contract includes multiple promised goods and services, the Company applies judgment to determine whether promised goods and services are capable of being distinct and distinct in the context of the contract. If these criteria are not met, the promised goods and services are accounted for as a combined performance obligation.
In agreements where the Company provides its services to customers in conjunction with another party, the Company considers if it provides the service itself (i.e., the Company is acting as a principal and will record revenue on a gross basis) or arranges for such service to be provided to the end user (i.e., the Company is acting as an agent and will record revenue on a net basis).
Determine the transaction price: The transaction price is determined based on the consideration the Company expects to be entitled in exchange for transferring promised goods and services to the customer. Determining the transaction price requires significant judgment. To the extent the transaction price includes variable consideration, the Company estimates the amount of variable consideration that should be included in the transaction price utilizing either the expected value method or the most likely amount method depending on the nature of the variable consideration. Variable consideration is included in the transaction price if, in the Company’s judgment, it is probable that a significant future reversal of cumulative revenue recognized under the contract will not occur.
Certain contracts contain award fees, incentive fees, or other provisions that can either increase or decrease the transaction price. These variable amounts are generally awarded at the completion of a contractually stipulated performance assessment period based on the achievement of performance metrics, program milestones or cost targets, and the amount awarded may be subject to client discretion.
Any estimates, including the effect of the constraint on variable consideration, are evaluated at each reporting period. The amount of consideration is not adjusted for a significant financing component if the time between payment and the transfer of the related good or service is expected to be one year or less under the practical expedient in ASC 606-10-32-18. The Company’s revenue arrangements are typically accounted for under such expedient. As of December 31, 2025 and 2024, the Company did not have any contracts that contained a significant financing component. The Company excludes tax amounts assessed by governmental authorities that are both (i) imposed on and concurrent with specific revenue-producing transactions and (ii) collected from customers from the Company’s measurement of transaction prices. Accordingly, such tax amounts are not included as a component of transaction price.
Allocate the transaction price to performance obligations in the contract: A contract that has multiple performance obligations has multiple units of accounting. With limited exceptions, the transaction price should be allocated to each performance obligation at contract inception based on the relative standalone selling price (“SSP”) of the goods or services – the price at which the Company would sell a promised good or service separately to a customer – being provided to the customer. This allocated revenue amount may differ from the contractually stated price. This allocation assessment ensures that if there is a discount embedded within an arrangement due to the customer buying multiple goods or services, such a discount is proportionally allocated to each performance obligation to most faithfully depict the different margins in an overall contract.
The Company determines SSP at the inception of a contract based on observable standalone sales, or, if no standalone sales have occurred, estimates SSP by maximizing observable inputs. The Company uses a range of prices to estimate the SSP of a good or service as a large portion of the standalone sales fall within a narrow range. If the stated contractual prices fall within the SSP ranges, the Company uses the stated contractual price as the SSP in its allocation calculations. However, if the stated contractual price for any performance obligations within a given contract fall outside of the SSP range for that performance obligation, the SSP is adjusted to the outer limit nearest to the stated contractual price in order to allocate the transaction price on a relative SSP basis (e.g., if the contract price is below the SSP range, then the lower limit of the range is used to allocation the transaction price).
For data collection subscriptions, since the performance obligations to transfer control of data collections are all transfers of distinct goods that are substantially the same as each other, the contract value per data / product is effectively the same as the relative SSP allocation to each product, and the per unit rate can be used as a practical proxy for the allocation. Therefore, the Company will allocate the transaction price evenly to each data collection performance obligation.
Once the standalone selling prices have been estimated and revenue is allocated to the obligations, the allocation methodology is not revised for changes in estimates unless there is a contract modification that changes the scope and/or price of the contract.
Recognize revenue when (or as) each performance obligation is satisfied: The Company satisfies performance obligations either at a point in time or over time. The Company generally recognizes revenue at a point in time when a performance obligation is satisfied or over time as control is transferred to a client, based on the extent of progress towards satisfaction of the performance obligation. The selection of the method used to measure progress requires judgment and is dependent, among other factors, on the contract type and the nature of the services provided.
For time-and-materials contracts, the Company uses the right-to-invoice practical expedient to recognize revenue earned based on hours worked in contract performance at negotiated billing rates as the Company believes this amount is commensurate with the value transferred to the customer. Fixed-price level-of-effort contracts are substantially similar to time-and-materials contracts except that the Company is required to deliver a specified level of effort over a stated period of time. For these contracts, the Company determines the revenue earned using contract hours worked at negotiated bill rates as the Company delivers the contractually required workforce.
For certain cost-based contracts that meet the criteria for the right-to-invoice practical expedient to be used as the Company believes this amount is commensurate with the value transferred to the customer, the Company recognizes revenue based on the amount to which the Company has a contractual right to invoice which is typically costs incurred plus contractually-stipulated fixed fees. Cost-based contracts may include variable consideration which is allocated to the distinct periods in which they relate to and recognized in that period.
For certain fixed-price and cost-plus-award-fee contracts requiring the delivery of a product or service, the Company uses the percentage-of-completion method to estimate the amount of revenue, based on the ratio of actual costs incurred to total estimated costs, provided that costs incurred (an input
method) represents a reasonable measure of progress towards the satisfaction of a performance obligation and transfer of control to the customer. This method provides a faithful depiction of the transfer of value to the client when the Company is satisfying a performance obligation that entails integration of tasks for a combined output, which requires the Company to coordinate the work of employees, subcontractors and delivery of other contract costs. Contract costs that are not reflective of the Company’s progress toward satisfying a performance obligation are not included in the calculation of the measure of progress. When this method is used, the changes in estimated costs to complete the obligations result in adjustments to revenue on a cumulative catch-up basis, which causes the effect of revised estimates for prior periods to be recognized in the current period.
In some fixed-price service contracts, the Company performs services of a recurring nature, such as maintenance and other services of a “stand ready” nature. For these contracts, the Company has the right to consideration in an amount that corresponds directly with the value that the client has received. Therefore, the Company records revenue on a time-elapsed basis to reflect the transfer of control to the client throughout the contract.
Point in Time: Data / Product Delivery
Each individual data / product delivered to the customer transfers at a point in time as the customer does not simultaneously receive and consume the benefit as the Company performs, but rather receives a benefit at each point in time that the Company transfers data to the customer. Additionally, the customer does not own work-in-progress as the Company collects data, as the Company retains rights to the underlying data and transfers a copy of the data to the customer. Since the Company owns the underlying data, they are able to redirect the data for other use and provide copies of the same data to other customers. Therefore, each data delivery is transferred at a point in time. As such, the transaction price allocated to the data is required to be recognized at a point in time upon transfer of control to the customer. The Company deems control transfers to the customer when the data is delivered to the customer’s AWS S3 bucket, or upon physical delivery to the customer. The perpetual license to the data begins at the same point of delivery.
Over time: Professional Services – time and material arrangements
The Company performs engineering services, systems integration and mission support under time and material arrangements that are recognized over time. For time-and-materials contracts, the Company uses the right-to-invoice practical expedient to recognize revenue earned based on hours worked in contract performance at negotiated billing rates as the Company believes this amount is commensurate with the value transferred to the customer. Fixed-price level-of-effort contracts are substantially similar to time-and-materials contracts except that the Company is required to deliver a specified level of effort over a stated period of time. For these contracts, the Company determines the revenue earned using contract hours worked at negotiated bill rates as the Company delivers the contractually required workforce.
Over time: Professional Services – fixed fee arrangements
The Company performs engineering services, systems integration and mission support under fixed-fee arrangements that are recognized over time. The Company uses the percentage-of-completion method to estimate the amount of revenue, based on the ratio of actual costs incurred to total estimated costs, provided that costs incurred (an input method) represents a reasonable measure of progress towards the satisfaction of a performance obligation and transfer of control to the customer. This method provides a faithful depiction of the transfer of value to the client when the Company is satisfying a performance obligation that entails integration of tasks for a combined output, which requires the Company to coordinate the work of employees, subcontractors and delivery of other contract costs.
Over Time: Professional Services – general support services and dedicated analytics support
The general support services and dedicated analytics support are accounted on an over time recognition pattern. The nature of these services is to provide unspecified support as requested by the customer. That is, the Company provides daily support and services are expected to be provided evenly throughout the term of the arrangement. Therefore, the Company utilizes a time-elapsed measure of progress.
Over Time: Professional Services – Cost-plus-fixed-fee arrangements
The Company performs engineering services, systems integration and mission support under cost-plus-fixed-fee arrangements that are recognized over time as costs are incurred. Progress toward completion is measured using a cost-to-cost input method, reflecting the transfer of control as costs are incurred and billed.
Over Time: Training
The Company’s training services are accounted for as performance obligations that is satisfied over time, as customers simultaneously receive and consume the benefits of the services as they are performed.
Point in Time or Over Time: Professional Services – studies
Professional services related to studies represent a single performance obligation that is satisfied over time or at a point in time depending on the nature of the study being contracted. The studies do not create an asset with an alternative use to the Company, as they are developed based on facts and circumstances that are specific to each customer, resulting in a practical limitation on the Company’s ability to readily direct the asset to another customer. In certain agreements, the Company has an enforceable right to payment for performance completed to date, including reimbursement of costs incurred plus a reasonable margin, which approximates the profit margin earned on similar contracts and is typically structured on a time-and-materials basis. Accordingly, revenue for these types of studies is recognized over time. In other cases. the Company enters into fixed price contracts to provide studies, for which either the customer does not control the in-process study or the Company does not have an enforceable right to payment for progress completed to date. These performance obligations are recognized at a point in time.
The Company measures progress toward completion using an input method based on a cost-to-cost measure, which management believes best depicts the transfer of control of the services to the customer. Under this method, progress is measured as the ratio of costs incurred to date relative to total estimated costs at completion of the performance obligation. Estimating total costs at completion requires management judgment and includes assumptions related to material costs and availability, labor costs and productivity, and overhead allocations.
The Company maintains arrangements with resellers, including exclusive resellers, who sell its data product to end users. Revenue under resell arrangements is generally recognized net of any reseller discounts, as the reseller is considered our customer, when the products are delivered to the reseller, provided all other revenue recognition criteria are met.
Contract Balances
When the timing of the Company’s delivery of products or services is different from the timing of payments made by customers, the Company recognizes either a contract asset (performance precedes contractual due date) or a contract liability (customer payment precedes performance).
Contract costs
The Company recognizes a current asset for the incremental costs of obtaining a contract with a customer if the Company expects the benefit of those costs to be longer than one year. The Company has determined that there are no costs to fulfill a contract that meets the requirements to be capitalized, as a result, there are no unamortized capitalized costs as of December 31, 2025, nor December 31, 2024, respectively.
The Company applies a practical expedient to expense costs as incurred for costs to obtain a contract when the amortization period is one year or less.
Payment Terms
The Company’s standard payment terms are negotiated in the contract and range from 30 to 90 days.
Warranties
The Company’s standard End User License Agreement generally includes an assurance-based warranty provision that the product delivered or services rendered will conform with published specifications.
Direct cost of sales, excluding depreciation and amortization
Cost of sales primarily includes employee-related costs for personnel involved in the execution of customer contracts, such as salaries, benefits, bonuses, and stock-based compensation. Cost of sales also includes travel and accommodation costs, certain storage and computing expenses, and costs from professional services, including costs paid to subcontractors, solution partners and certain third-party fees which directly relate to revenue generating contracts.
Indirect cost of sales, excluding depreciation and amortization
Indirect cost of sales includes expenses such as indirect engineering labor, indirect travel, allocated indirect fringe costs and other expenses and departmental costs that are related to the fulfillment of contract expenses but are not directly attributable to a single revenue-related contract. For certain governmental contracts that are governed by Cost Accounting Standards (“CAS”) requirements, these costs are considered expenses which are allowable and included in our total estimated contract cost allocation.
Selling, general and administrative expenses
Selling, general and administrative expenses primarily consist of employee-related costs including salaries, stock-based compensation, and benefits for legal, finance, information technology, sales, and human resources staff which are otherwise not allocated to indirect cost of sales for our CAS contracts. Expenses also consist of consultant expenses, sales commissions, costs associated with professional services, marketing events, and office occupancy-related costs. Marketing costs totaled $2.3 million and $1.7 million for the years ended December 31, 2025 and December 31, 2024, respectively.
Research and development expenses
Research and development costs consist of hardware and software research and development including designing, developing, and testing new satellite and sensor technology and data science modeling and algorithm development related to the Company’s platform. The Company’s research and development expenses consist of employees’ salaries, taxes and benefits, consultant expenses, certain software and storage expenses, and materials and supplies which are otherwise not allocated to indirect cost of sales for our CAS contracts.
Depreciation and amortization
Depreciation and amortization costs include the depreciation of satellites, machinery, and equipment, as well as the amortization of finite-lived licenses and patents, trade names, and government contracts and developed technology.
Other (expense) income, net
Other non-operating (expense) income, net includes adjustments to fair value associated with the contingent earnout liability recorded upon the Aurora Acquisition, realized gains or losses on the sale of available for sale debt securities, gains and losses arising from foreign currency transactions, and fair value gains and losses on warrant liabilities.
Income Taxes
Deferred taxes are calculated using the liability method, whereby deferred tax assets are recognized for deductible temporary differences and operating loss and tax credit carryforwards, and deferred tax liabilities are recognized for taxable temporary differences. Temporary differences are the differences between the reported amounts of assets and liabilities and their tax basis. Deferred tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all the deferred tax assets will not be realized.
Deferred tax assets and liabilities are adjusted for the effects of changes in laws and rates on the date of enactment.
In connection with the preparation of the Company’s consolidated financial statements, it is required to estimate its income tax liability for each of the tax jurisdictions in which it operates. This process involves estimating its actual current income tax expense and assessing temporary differences resulting from differing treatment of certain income or expense items for income tax reporting and financial reporting purposes. The Company also recognizes the expected future income tax benefits of net operating loss (“NOL”) carryforwards as deferred income tax assets. In evaluating the realizability of deferred income tax assets, the Company considers, among other things, expected future taxable income, the expected timing of the reversals of existing temporary reporting differences, and the expected impact of tax planning strategies that may be implemented to prevent the potential loss of future income tax benefits. Changes in, among other things, income tax legislation, statutory income tax rates or future taxable income levels could materially impact the Company’s valuation of income tax assets and liabilities and could cause its income tax provision to vary significantly among financial reporting periods. The Company has documented its consideration of Financial Accounting Standards Board (“FASB”) ASC 740-10, Income Taxes (“ASC 740”), that provides guidance for reporting uncertainty in income taxes and has determined that no material uncertain tax positions qualify for either recognition or disclosure in the consolidated financial statements.
Share-Based Compensation
The Company accounts for share-based compensation in accordance with ASC 718, Compensation – Stock Compensation (“ASC 718”). Under ASC 718, share-based payments involving the issuance of common stock to employees and nonemployees that qualify as equity-classified awards are recognized as share-based compensation in the consolidated financial statements, measured at fair value on the grant date. The Company may grant stock options, stock appreciation rights, stock awards, restricted stock units, performance awards, or other stock-based awards to employees.
The Company uses the Black-Scholes option-pricing model to determine the fair value of stock options on the grant date. The calculation of the fair value of stock options using the Black-Scholes model requires certain highly subjective inputs and assumptions, including the length of time grantees will retain their vested stock options before exercising them for employees and the contractual term for non-employees (the “expected term”), the volatility of the Company’s common stock price over the expected
term, risk-free interest rate, dividend yield, and fair value of common stock. The Company has elected to recognize the adjustment to share-based compensation expense in the period in which forfeitures occur.
The inputs and assumptions used in the Black-Scholes option-pricing model are management’s best estimates, but the estimates involve inherent uncertainties and the application of management judgment (see Note 11). As a result, if other assumptions had been used, the recorded share-based compensation expense could have been materially different from that depicted in the consolidated financial statements.
Time-based options
For time-based option awards the Company recognizes compensation cost on a straight-line basis over the requisite service period of the awards for employees, which is typically the four-year vesting period of the award, and effective contract period specified in the award agreement for non- employees.
Performance-based options
The Company maintains a share-based compensation plan under which it grants performance-based stock options to certain employees and executives. The options vest over one to four years, contingent upon the achievement of specified performance criteria established by the Company’s Board of Directors or Compensation Committee. The performance conditions are based on financial and operational metrics such as revenue growth, earnings per share, or other key business milestones. The Company reassesses the likelihood of meeting the performance conditions at each reporting period and recognizes compensation expense only for those options that are expected to vest. Compensation expense for awards with performance conditions is recognized over the requisite service period, which is typically the period from the grant date to the date the performance condition is expected to be satisfied. If it is determined that the performance condition is not probable of being achieved, no expense is recognized, and previously recognized compensation cost is reversed. If the performance condition is ultimately achieved, any remaining unrecognized compensation cost is recognized immediately
Restricted Stock Units (“RSUs”)
In 2025, the Board awarded and issued RSUs. These RSUs contain a four-year ratable vesting from the grant date and are contingent based upon either an IPO or a change of control occurring within the next five years from the grant date. As these awards vest based upon an IPO or change of control event no amounts were expensed for the year ended December 31, 2025. Assuming the vesting conditions are met, the Company recognizes 25% in the first year granted and then on a straight-line basis over the remaining period.
Warrants
The Company applies relevant accounting guidance for warrants to purchase the Company’s stock based on the nature of the relationship with the counterparty. For warrants issued to investors or lenders in exchange for cash or other financial assets, the Company follows guidance issued within ASC 480, Distinguishing Liabilities from Equity (“ASC 480”), and ASC 815, Derivatives and Hedging (“ASC 815”), to assist in the determination of whether the warrants should be classified as a liability or equity. Warrants that are determined to require classification as a liability are measured at fair value upon issuance and are subsequently remeasured to their then fair value at each subsequent reporting period, with changes in fair value recorded in current earnings. Warrants that are determined to require equity classifications are measured at fair value upon issuance and are not subsequently remeasured unless they are required to be reclassified.
For warrants issued to non-employees for goods or services, or to customers as non-cash consideration, the Company follows guidance issued within ASC 718 to determine whether the share-based payments are equity or liability classified and are measured at fair value on the grant date. The related expense or reduction in transaction price is recognized in the same period and in the same
manner as if the Company had paid cash for the goods or services, or in the same manner that transfer of control of the related performance obligations occurs.
Net Income (Loss) Per Share
The Company follows the two-class method when computing net income (loss) per share since the Company has issued shares that meet the definition of participating securities. The two-class method determines net loss per share for each class of common and participating securities according to dividends declared or accumulated and participation rights in undistributed earnings. The two-class method requires income available to common stockholders for the period to be allocated between common and participating securities based on their respective rights to receive dividends as if all income for the period had been distributed.
Basic net income (loss) per share attributable to common stockholders is calculated by dividing net income (loss) attributable to common stockholders (the numerator) by the weighted average number of common shares outstanding for the period (the denominator). Diluted net income (loss) attributable to common stockholders is computed by adjusting net income (loss) attributable to common stockholders to reallocate undistributed earnings based on the potential impact of dilutive securities and is calculated by dividing the diluted net income (loss) attributable to common stockholders (the numerator) by the weighted average number of common shares outstanding for the period (the denominator), including potential dilutive common shares. For the purpose of this calculation, potential dilutive common shares may include shares of convertible preferred stock, stock options, and warrants. The Company’s preferred stock contractually entitles the holders of such shares to participate in dividends on a one-to-one per-share basis but contractually does not require the holders of such shares to participate in losses of the Company. In periods in which the Company reports a net loss attributable to common stockholders, diluted net loss per share attributable to common stockholders is the same as basic net loss per share attributable to common stockholders, since potentially dilutive common shares are considered to be anti- dilutive.
Recently Adopted Authoritative Guidance:
Recently Adopted
In December 2023, the FASB issued ASU 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures. The ASU improves the transparency of income tax disclosures by requiring (1) consistent categories and greater disaggregation of information in the rate reconciliation and (2) income taxes paid disaggregated by jurisdiction. It also includes certain other amendments to improve the effectiveness of income tax disclosures. The guidance is effective for annual periods beginning after December 15, 2024. The Company adopted ASU 2023-09 retrospectively for the year ended December 31, 2025. The adoption impacted disclosures only and did not have a material impact on the Company’s consolidated financial statements. See Note 15 – Income Taxes for further detail.
Not Yet Adopted
On September 18, 2025, the FASB issued ASU No. 2025-06, Intangibles—Goodwill and Other— Internal-Use Software (Subtopic 350-40): Targeted Improvements to the Accounting for Internal-Use Software. The amendments remove all references to prescriptive and sequential software development stages (referred to as “project stages”) throughout Subtopic 350-40. Therefore, an entity is required to start capitalizing software costs when both of the following occur: (1) management has authorized and committed to funding the software project, and (2) it is probable that the project will be completed and the software will be used to perform the function intended (referred to as the “probable-to-complete recognition threshold”). This guidance is effective for fiscal years beginning after December 15, 2027 and interim reporting periods within those annual reporting periods. Early adoption is permitted as of the beginning of an annual reporting period. The amendments in this update permit an entity to apply the new guidance using any of the following transition approaches: (1) a prospective transition approach; (2) a modified transition approach that is based on the status of the project and whether software costs were
capitalized before the date of adoption; or (3) a retrospective transition approach. The Company is currently in the process of evaluating the potential impact the adoption of this standard may have and expects to adopt this standard in its first quarter of 2028.
In July 2025, the FASB issued ASU No. 2025-05, Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses for Accounts Receivable and Contract Assets ("Update 2025-05"), which allows public business entities to elect a practical expedient for current accounts receivables and contract assets to assume that current conditions as of the balance sheet date do not change for the remaining life of the asset. Update 2025-05 is effective for fiscal years beginning after December 15, 2025, with early adoption permitted, and is required to be applied on a prospective basis. The Company plans to elect the practical expedient in the period required and is currently evaluating the impact of the election on the recognition and measurement of its credit losses within the consolidated financial statements.
In November 2024, the FASB issued Accounting Standards Update No. 2024-03, Income Statement - Reporting Comprehensive Income - Expense Disaggregation Disclosures (Subtopic 220-40): Disaggregation of Income Statement Expenses (“ASU 2024-03”), and in January 2025, the FASB issued Accounting Standards Update No. 2025-01, Income Statement - Reporting Comprehensive Income - Expense Disaggregation Disclosures (Subtopic 220-40): Clarifying the Effective Date (“ASU 2025-01”). ASU 2024-03 requires additional disclosure of the nature of expenses included in the income statement as well as disclosures about specific types of expenses included in the expense captions presented in the income statement. ASU 2024-03, as clarified by ASU 2025-01, is effective for the Company for its annual reporting for fiscal 2028 and for interim period reporting beginning in fiscal 2029 on a prospective basis. Both early adoption and retrospective application are permitted. The Company is currently evaluating the impact that the adoption of these standards will have on its consolidated financial statements and disclosures.
NOTE 3 – BUSINESS ACQUISITION
Innovative Signal Analysis, Inc.
Pursuant to the Agreement and Plan of Merger (the “Merger Agreement”) dated December 18, 2025, the Company completed the acquisition of Innovative Signal Analysis, Inc. (“ISA”) through a statutory merger involving Forrestal Merger Sub, Inc. (the “Merger Sub”), a wholly owned subsidiary of the Company. Under the terms of the merger, Merger Sub was merged with and into ISA. At the effective time of the merger, Merger Sub ceased to exist as a separate entity, and ISA continued as the surviving corporation under Texas law. As a result, ISA became a wholly owned subsidiary of the Company, with the acquisition of 100% equity interest in ISA completed for a fair value consideration of $166.5 million consisting of cash considerations of $117.7 million which includes:
•$110.4 million in cash (subject to customary adjustments for ISA cash on hand, net working capital, unpaid transaction costs, and debt),
•$3.9 million of transaction costs incurred by ISA and paid by the Company on ISA’s behalf, and
•$3.4 million of cash placed into escrow to be released shortly after close.
In addition to these cash amounts, the consideration also includes:
•Issuance of a fair value of $25.0 million of Series E Preferred Stock;
•$10.0 million of deferred cash holdbacks retained by the Company at closing to address specified matters described in the Merger Agreement;
•a deferred cash payment of $15.0 million (fair valued at $13.5 million as of the acquisition date) which is due upon the earlier of (i) a “Liquidity Event” (as defined in the Merger Agreement) or (ii) the third anniversary of the closing date; and
•a contingent earnout payment of up to $10.0 million (fair valued at $0.3 million as of the acquisition date) if ISA exceeds specified 2026 revenue targets.
The Company’s acquisition of ISA enhances its existing offerings by providing critical signal processing technologies, including detection and classification across multiple domains, while gaining access to classified architecture, thereby strengthening the Company’s relationship with the U.S. Government and the U.S. intelligence community. The upgraded platform integrates HawkEye 360 data with third-party sources including national systems, AIS feeds, and optical imagery. This creates a unified environment for correlation, geolocation, and USR. In parallel to this acquisition, the Company is also developing automated analytics software to fuse multiple data streams for real-time alerts, cueing, and mission orchestration, while expanding third-party integrations to deliver richer mission insights and operational advantages to a broader base of U.S. Government customers.
The acquisition was accounted for as a business combination under ASC 805, Business Combinations, with the Company identified as the acquirer. In connection with the acquisition of ISA the Company spent $2.1 million in costs related to the acquisition which was expensed in the consolidated statements of operations for the year ended December 31, 2025. The purchase price allocation as of the date of acquisition was based on a preliminary valuation and is subject to revision as more detailed analyses are completed and additional information about the fair value of assets acquired and liabilities assumed become available. All values remain preliminarily including, but not limited to, intangible assets, including the preliminary assumptions used in their estimates of fair values and their respective estimated useful lives, property and equipment, inventory, right-of-use assets, income taxes, and residual goodwill. The final determination of the fair values, purchase consideration, related income tax impacts and residual goodwill will be completed as soon as practicable, and within the measurement period of up to one year from the acquisition date as permitted under GAAP.
The table below sets forth the consideration paid, and the fair value of the assets acquired, and liabilities assumed at the acquisition date:
| | | | | |
| December 18, 2025 |
Assets acquired and liabilities assumed: | |
| Cash and cash equivalents | $ | 5,782 | |
| Contract accounts receivable | 2,056 | |
| Prepaid expenses and other current assets | 2,016 | |
| Inventory | 4,014 | |
| Contract assets | 6,726 | |
| Other long-term assets | 215 | |
| Satellites, property and equipment | 6,314 | |
| Right-of-use assets - operating | 8,808 | |
| Intangibles | 35,600 | |
| Goodwill | 116,866 | |
| Total assets | $ | 188,397 | |
| Accounts payable | $ | 1,263 | |
| Accrued expenses and other current liabilities | 3,825 | |
| Contract liabilities | 297 | |
| Current portion of operating lease liabilities | 537 | |
| Deferred tax liabilities | 7,710 | |
| Operating lease liabilities, net of current portion | 8,271 | |
| Total liabilities | 21,903 | |
| Total net assets | $ | 166,494 | |
The fair value of the working capital items, including accounts receivable, other current assets, accounts payable, accrued liabilities, and other current liabilities approximate their respective carrying values at the date of the acquisition.
| | | | | | | | |
| | December 18, 2025 |
Consideration paid: | | |
| Cash | | $ | 117,694 | |
Fair value of Series E Preferred Shares(1) | | 25,000 | |
| Other consideration | | 23,800 | |
Total consideration | | $ | 166,494 | |
The following table summarizes the fair value of acquired identifiable intangible assets:
| | | | | | | | |
| | December 18, 2025 |
Trade name (2) | | $ | 2,200 | |
Customer relationships(2) | | |
Follow-on | | 10,800 | |
Existing backlog | | 1,100 | |
Developed technology(2) | | 21,500 | |
| Total acquired intangible assets | | $ | 35,600 | |
______________
(1)As part of the Merger Agreement, the Company issued 1,325,316 shares of Series E Preferred Stock at $18.86343/share. See Note 9- Mezzanine Equity and Shareholders Deficit for more details.
(2)The amortization period for the trade name, customer relationships follow-on, customer relationships existing backlog, and developed technology, are amortized over four years, ten years, one year, and five years, respectively.
Goodwill generated from this business combination is primarily attributable to expected synergies from the transaction and incremental revenue and profit to be derived from the Company’s expansion into full-service hardware and software for its space and defense customers. The goodwill is not expected to be deductible for U.S. income tax purposes.
The following table presents the net impact of the ISA acquisition on the Company’s consolidated statements of operations and comprehensive loss since the date of acquisition (in thousands):
| | | | | |
| For the Year Ended December 31, 2025 |
| Revenue | $ | 871 | |
Net loss | $ | (307) | |
Unaudited Pro Forma Information
The following unaudited pro forma financial information presents combined results of operations as if ISA had been acquired as of the beginning of fiscal year 2024. The unaudited pro forma results includes certain pro forma adjustments to revenue and net loss that were directly attributable to the acquisition, including transaction costs. Transactions costs of $2.1 million are assumed to have been incurred on January 1, 2024 and are recognized during 2024. The unaudited pro forma information presented below is for informational purposes only and is not necessarily indicative of the
consolidated results of operations of the combined business had the acquisition actually occurred at the beginning of 2024, or of the results of future operations of the combined business.
| | | | | | | | | | | | | | |
| | Year Ended December 31, |
| (in thousands) | | 2025 | | 2024 |
| Pro forma revenue | | $ | 177,416 | | | $ | 119,355 | |
Pro forma net loss | | $ | (9,056) | | | $ | (38,144) | |
NOTE 4 – REVENUE
Disaggregation of Revenue
The Company disaggregates revenue from customers, most of which is earned at a point in time, into categories that depicts the type of revenue by customer base. All revenue is contracted via either fixed-price arrangements, cost plus margin arrangements or time and material arrangements. The following chart details the disaggregation (in thousands):
| | | | | | | | | | | |
| Year Ended December 31, |
| 2025 | | 2024 |
| U.S. | $ | 71,614 | | | $ | 40,757 | |
| International | 46,046 | | | 26,802 | |
Total | $ | 117,660 | | | $ | 67,559 | |
| | | |
Point in time – fixed price | $ | 114,125 | | | $ | 65,396 | |
Over time – fixed price | 2,834 | | | 2,163 | |
Over time – cost-plus-margin | 620 | | | — | |
Over time – time-and-materials | 81 | | | — | |
Total | $ | 117,660 | | | $ | 67,559 | |
For the years ended December 31, 2025 and 2024, 16% and 26%, respectively, of the Company’s revenues were derived from customers located in Japan. No other country made up more than 10% of the Company’s consolidated revenues during the years ended December 31, 2025 and 2024.
During the years ended December 31, 2025 and 2024, the Company engaged in transactions of $18.9 million and $17.7 million of revenue with a material international customer that is a subsidiary of an investor in the Company and is, therefore, considered a related party. During the year ended December 31, 2025, the Company generated $0.1 million of revenue from transactions with an entity in which a member of the Board of Directors holds an equity interest of less than 3%. There were no material transactions with the customer for the year ended December 31, 2024. The Company also engaged in immaterial transactions with entities affiliated with members of management during the periods presented. These transactions were conducted on arm’s-length terms.
Contract Assets and Contract Liabilities
Contract assets primarily consist of unbilled accounts receivable related to the Company’s right to consideration for performance obligations satisfied or partially satisfied but not yet billed to customers, pending customer acceptance. The Company’s contract liabilities consist of deferred revenue, which represents customer payments received prior to the completion of performance. During 2025, the Company recognized $0.7 million of revenue that was deferred as of December 31, 2024 and recorded $3.3 million of unearned revenue from cash received during the period. It is expected that the deferred revenue of $3.3 million as of December 31, 2025 will be recognized as revenue in 2026.
The contract asset and contract liability balances as of December 31, 2025, 2024, and 2023 are as follows (in thousands):
| | | | | | | | | | | | | | | | | |
| As of December 31, |
| 2025 | | 2024 | | 2023 |
| Contract accounts receivable | $ | 13,833 | | | $ | 3,331 | | | $ | 1,586 | |
| Unbilled contract accounts receivable | 18,487 | | | 8,246 | | | 11,739 | |
| Contract accounts receivable from related parties | 20,843 | | | 67 | | | 95 | |
Unbilled contract accounts receivable from related parties | 126 | | | — | | | — | |
Total contract accounts receivable | $ | 53,289 | | | $ | 11,644 | | | $ | 13,420 | |
| | | | | |
| Contract assets | $ | 4,639 | | | $ | 54 | | | $ | — | |
| Contract assets from related parties | 4,748 | | | 4,701 | | | 2,350 | |
Total contract assets | $ | 9,387 | | | $ | 4,755 | | | $ | 2,350 | |
| | | | | |
Contract liabilities | $ | 3,262 | | | $ | 707 | | | $ | 875 | |
Total contract liabilities | $ | 3,262 | | | $ | 707 | | | $ | 875 | |
Remaining Performance Obligations
The Company’s arrangements with its customers often have terms that span over multiple years. However, substantially all of the Company’s arrangements allow its customers to terminate contracts for convenience prior to the end of the stated term with less than twelve months’ notice. Remaining performance obligations do not include contracts which provide the customer with a right to terminate for convenience without incurring a substantive termination penalty, written orders where funding has not been appropriated and unexercised contract options. The Company has elected the optional exemption allowing the Company to not disclose remaining performance obligations for contracts with original terms of twelve months or less. Revenue recognized in the current period from performance obligations satisfied (or partially satisfied) in prior periods was not material for any of the periods presented.
As of December 31, 2025, the estimated revenue expected to be recognized in the future related to performance obligations that are unsatisfied (or partially unsatisfied) was approximately $108.1 million. As of December 31, 2025, the estimated revenue expected to be recognized in the future related to remaining performance obligations is presented in the table below.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, |
| 2026 | | 2027 | | 2028 | | 2029 | | 2030 | | Thereafter |
Projected revenue to be recognized | 3.6% | | 22.4% | | 18.5% | | 18.5% | | 18.5% | | 18.5% |
NOTE 5 – SATELLITES, PROPERTY AND EQUIPMENT
Satellites, property and equipment, net, consists of the following at December 31, 2025 and 2024 (in thousands):
| | | | | | | | | | | |
| As of December 31, |
| 2025 | | 2024 |
| Satellite builds in process | $ | 29,894 | | | $ | 45,972 | |
| Satellites | 151,350 | | | 125,629 | |
| Machinery and equipment | 4,409 | | | 2,808 | |
| Computer equipment | 3,449 | | | 1,992 | |
| Software | 671 | | | 671 | |
| Furniture and fixtures | 1,545 | | | 1,030 | |
| Leasehold improvements | 7,897 | | | 3,732 | |
| 199,215 | | | 181,834 | |
| Accumulated depreciation and amortization | (88,342) | | | (65,400) | |
| Satellites, property and equipment, net | $ | 110,873 | | | $ | 116,434 | |
Depreciation was $22.9 million and $24.8 million for the years ended December 31, 2025 and 2024, respectively, presented in the consolidated statements of operations.
Long-Lived Assets
The Company’s long-lived assets are comprised of assets in the following locations as of December 31, 2025 and 2024 (in thousands):
| | | | | | | | | | | |
| As of December 31, |
| 2025 | | 2024 |
U.S.(1) | $ | 276,344 | | | $ | 89,415 | |
| Canada | 202 | | | 30,641 | |
| Rest of the world | 2,569 | | | 5,167 | |
_____________
(1)Includes in orbit satellites
NOTE 6 – INTANGIBLE ASSETS AND GOODWILL
The carrying amount of intangible assets is as follows (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, 2025 |
| Weighted Average Useful Life | | Gross carrying amount | | Accumulated Amortization | | Net carrying amount |
| Finite-lived intangible assets | | | | | | | |
| Licenses and patents | 5 | | $ | 2,000 | | | $ | (1,400) | | | $ | 600 | |
| Developed technology | 5 | | 21,500 | | | (147) | | | 21,353 | |
| Customer relationships | | | | | | | |
Follow-on | 10 | | 10,800 | | | (35) | | | 10,765 | |
Existing backlog | 1 | | 1,100 | | | (27) | | | 1,073 | |
| Trade names | 4 | | 2,200 | | | (18) | | | 2,182 | |
Total finite-lived intangible assets | | | $ | 37,600 | | | $ | (1,627) | | | $ | 35,973 | |
| | | | | | | | | | | | | | | | | | | | | | | |
| As of December 31, 2024 |
| Weighted Average Useful Life | | Gross carrying amount | | Accumulated Amortization | | Net carrying amount |
| Finite-lived intangible assets | | | | | | | |
| Licenses and patents | 5 | | $ | 2,000 | | | $ | (1,000) | | | $ | 1,000 | |
Total finite-lived intangible assets | | | $ | 2,000 | | | $ | (1,000) | | | $ | 1,000 | |
Finite-lived intangible asset amortization expense was $0.6 million and $0.4 million for the years ended December 31, 2025 and 2024, respectively.
Future amortization expense related to intangibles assets is expected to be as follows (in thousands):
| | | | | |
| 2026 | $ | 7,404 | |
| 2027 | 6,130 | |
| 2028 | 5,930 | |
| 2029 | 5,912 | |
| 2030 | 5,237 | |
| Thereafter | 5,360 | |
Total | $ | 35,973 | |
The changes in the carrying amount of goodwill are as follows:
| | | | | |
| Amount |
| Balance as of December 31, 2024 | $ | — | |
| Acquisition of ISA (Note 3) | 116,866 | |
| Balance as of December 31, 2025 | $ | 116,866 | |
The Company did not have goodwill for the year ended December 31, 2024. There was no impairment recognized related to goodwill during either the years ended December 31, 2025 and 2024, respectively.
NOTE 7 – INVESTMENT SECURITIES
Available-for-sale investment securities as of December 31, 2025 and 2024 was zero and $71.1 million, respectively.
The following table summarizes the amortized cost and fair value of the available-for-sale investment securities portfolios at December 31, 2024. The corresponding amounts of unrealized gains (losses) are recognized in accumulated other comprehensive income/(loss) (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | |
| Amortized Cost | | Gross Unrealized Gains | | Gross Unrealized Losses | | Approximate Fair Value |
| December 31, 2024 | | | | |
| | |
| U.S. treasuries | $ | 71,135 | | | $ | 13 | | | $ | (1) | | | $ | 71,147 | |
| Total securities available-for-sale | $ | 71,135 | | | $ | 13 | | | $ | (1) | | | $ | 71,147 | |
The fair value of the Company’s available-for-sale investments is determined by quoted market prices, which are determined to be Level 1 inputs. There were no transfers in or out of Level 1 during the years ended December 31, 2025 and 2024. The corresponding amounts of unrealized gains (losses) are recognized in accumulated other comprehensive loss.
The amortized cost and fair value of investment securities as of December 31, 2024, by contractual maturity, are shown in the following schedule. Expected maturities will differ from contractual maturity because borrowers may have the right to call or prepay obligations with or without call or prepayment penalties.
The following table details unrealized losses and related fair values in the available-for-sale portfolio. This information is aggregated by the length of time that individual securities have been in a continuous unrealized loss position as of December 31, 2024 (in thousands).
| | | | | | | | | | | | | | | | | | | | | | | |
| Amortized Cost | | Gross Unrealized Gains | | Gross Unrealized Losses | | Approximate Fair Value |
| December 31, 2024 | | | | | | | |
| Due in one year or less | $ | 71,135 | | | $ | 13 | | | $ | (1) | | | $ | 71,147 | |
Total | $ | 71,135 | | | $ | 13 | | | $ | (1) | | | $ | 71,147 | |
As of December 31, 2024, the available-for-sale portfolio included one investment for which the fair market value was less than amortized cost. Management evaluates securities for other-than-temporary impairment at least on a quarterly basis, and more frequently when economic or market concerns warrant such evaluation. Consideration is given to (1) the length of time and the extent to which the fair value has been less than cost, (2) the financial conditions and near-term prospects of the issuer, and (3) the intent and ability of the Company to retain its investment in the issuer for a period of time sufficient to allow for any anticipated recovery in fair value. Based on the Company’s analysis, the Company concluded that no securities had other-than-temporary impairment at December 31, 2025 and 2024.
The gross realized gain as a result of sales of securities available for sale was $2.6 million and $3.3 million for the years ended December 31, 2025 and 2024, respectively. The realized gain is reported as interest income on the consolidated statement of operations.
Of the amounts shown above, $31.4 million is included in cash and cash equivalents for the year ended December 31, 2024, given that investments are less than 3 months to maturity.
NOTE 8 – DEBT
As of December 31, 2025, the 2025 Loans are as follows (in thousands):
| | | | | | | | | | | | | | | | | |
| As of December 31, 2025 |
| Mezzanine loan and security agreement | | Senior term loan | | Total |
| Outstanding principal | $ | 34,000 | | | $ | 14,600 | | | $ | 48,600 | |
| Less: Debt discount | (1,415) | | | 1 | | | (1,414) | |
| Less: Debt issuance costs and lender fees | (595) | | | (328) | | | (923) | |
| Amortization | 50 | | | 2 | | | 52 | |
Total carrying amount | $ | 32,040 | | | $ | 14,275 | | | $ | 46,315 | |
As of December 31, 2025, the Company had outstanding debt of $46.3 million. The Company did not have any outstanding debt as of December 31, 2024. The Company’s outstanding debt consists of borrowings under its Third Amended and Restated Loan and Security Agreement and Mezzanine Loan and Security Agreement issued in connection with the acquisition of ISA. The Company’s borrowings are secured by substantially all of the Company’s assets and are subject to customary covenants and reporting requirements.
Loan Agreements
On March 28, 2024, the Company amended its legacy Loan and Security Agreement (the “2024 Amendment”) to reduce the existing revolving line from $50.0 million to $25.0 million, extend maturity to March 28, 2027, and add a term loan commitment of $15.0 million with an availability period ending on March 28, 2026.
On April 29, 2024, the Company repaid its outstanding debt of $10.5 million under the legacy Loan and Security Agreement. In conjunction with the repayment, the Company wrote off $0.1 million of unamortized debt cost. After such repayment, the Company did not have any outstanding debt under the legacy Loan and Security Agreement.
As of December 31, 2024, $0.1 million of deferred unamortized debt issuance cost was presented as prepaid and other current assets on the consolidated balance sheet.
On December 18, 2025, the Company amended and replaced the legacy Loan and Security Agreement with the Third Amended and Restated Loan and Security Agreement (the “2025 Amendment”). The 2025 Amendment resulted in termination of the revolving line of credit and term loan commitment under the legacy Loan and Security Agreement. The Company did not have any outstanding debt drawn from these commitments immediately prior to the 2025 Amendment. In conjunction with the 2025 Amendment, the Company wrote off $20 thousand of remaining unamortized debt issuance cost associated with the legacy Loan and Security Agreement.
Under the Third Amended and Restated Loan and Security Agreement, the Company issued a senior term loan in aggregate principal amount of $14.6 million (the “2025 Term Loan”). The 2025 Term Loan matures on September 1, 2028, and is repayable in 21 equal monthly installments of principal beginning on January 1, 2027. The 2025 Term Loan bears interest at a floating rate per annum equal to the greater of 6.75% and the prime rate. The Company pays interest on the 2025 Term Loan on the first of each month with the first payment on January 1, 2026. The Company may, at its option, prepay the 2025 Term Loan in whole, but not in part, at a price equal to 100% of the principal amount of the 2025 Term Loan, plus accrued and unpaid interest to the date of prepayment.
In connection with the execution of the 2025 Amendment, the Company also executed the Warrant Amendment to amend the existing 2024 Warrants (see Note 10).
Additionally, on December 18, 2025, the Company entered into the Mezzanine Loan and Security Agreement (together with the Third Amended and Restated Loan and Security Agreement, the “Loan Agreements”), to issue a subordinated or mezzanine term loan in aggregate principal amount of $34.0 million (the “2025 Mezzanine Loan”, together with “2025 Term Loan” the “2025 Loans”). The 2025 Mezzanine Loan matures on December 18, 2028. The 2025 Mezzanine Loan bears cash interest at a floating rate per annum equal to the greater of 9.35% and the prime rate plus 2.10% plus paid in kind (the “PIK”) interest at a rate per annum equal to 1.50%. The Company pays interest on the 2025 Mezzanine Loan on the first of each month with the first payment made on January 1, 2026. The Company may, at its option, prepay the 2025 Mezzanine Loan in whole, but not in part, at a price equal to the 100% of the principal amount of the 2025 Term Loan, plus a prepayment fee of up to 1.00% and accrued and unpaid interest to the date of prepayment. Upon repayment of the 2025 Mezzanine Loan for any reason, a final payment of 1.95% of the original aggregate principal amount of the 2025 Mezzanine Loan will also be due.
In connection with the issuance of the 2025 Mezzanine Loan, the Company executed new warrant agreements to issue certain new warrants (the “2025 Bank Warrants”) to the lenders of the Mezzanine Loan (see Note 10).
The Loan Agreements contain a number of customary representations, warranties, and covenants that, among other things, limit the ability of the Company and its subsidiaries to (subject to certain qualifications and exceptions): create liens and encumbrances; incur additional indebtedness; merge,
dissolve, liquidate, or consolidate; make acquisitions, investments, advances, or loans; dispose of or transfer assets; pay dividends or make other payments in respect of its capital stock; amend certain material documents; redeem or repurchase certain debt; make payments on subordinated debt; and engage in certain transactions with affiliates. The Loan Agreements also contains customary events of default, including, but not limited to: nonpayment of principal, interest, fees, or other amounts; material inaccuracy of a representation or warranty; failure to perform or observe covenants; cross-defaults with certain other indebtedness; bankruptcy and insolvency events; material monetary judgment defaults; and the occurrence of a material adverse change. Upon the occurrence of an event of default (subject, in certain cases, to notice and grace periods), the obligations under the Loan Agreements may be accelerated.
In addition, the Loan Agreements include certain mandatory prepayment provisions based on the ratio of our consolidated debt to revenue and include a financial covenant requiring us to maintain, at all times, not less than $10 million in consolidated unrestricted cash and cash equivalents.
The Company is required to join certain of its later formed or acquired subsidiaries as additional co-borrowers or guarantors (collectively, the “Loan Parties”) under the Loan Agreements. The obligations under the Loan Agreements are secured by liens on substantially all of the assets of the Loan Parties.
Debt issuance costs and discounts consist of direct costs incurred to obtain financings under the Loan Agreements. These costs are capitalized and amortized using effective interest method over the expected life of the 2025 Loans. Amortization of debt discounts and issuance costs on the 2025 Loans was $2 thousand and $29 thousand for 2025 Term Loan and 2025 Mezzanine Loan, respectively, for the year ended December 31, 2025 and is included in interest expense in the accompanying consolidated statement of operations. The effective interest rates are 7.18% and 12.34% for 2025 Senior Term Loan and 2025 Mezzanine Loan, respectively.
Total unamortized debt discounts and issuance costs on the 2025 Loans for the year ended December 31, 2025, were $2.3 million, of which $0.1 million were for 2025 Senior Term Loan and $2.2 million were for 2025 Mezzanine Loan.
The Company incurred total interest expense on the 2025 Loans of $0.2 million for the year ended December 31, 2025, which consisted of $40 thousand for 2025 Term Loan and $0.2 million for 2025 Mezzanine Loan. The total interest expense for the year ended December 31, 2024 was $0.2 million.
As of December 31, 2025, the required principal payments of the 2025 Loans are as follows (in thousands):
| | | | | |
| 2025 Loans |
| 2026 | $ | — | |
| 2027 | 8,343 | |
| 2028 | 40,257 | |
| 2029 | — | |
| 2030 and thereafter | — | |
| Total principal payment required | $ | 48,600 | |
Letters of Credit
As of December 31, 2025, the Company had three standby letters of credit from the Bank outstanding, totaling $4.6 million.
NOTE 9 – MEZZANINE EQUITY AND STOCKHOLDER’S DEFICIT
Common Stock
The Company is authorized to issue 111,000,000 shares of common stock with a par value of $0.0001 per share. As of December 31, 2025 and 2024, 4,168,374 and 3,831,787 shares were issued and outstanding, respectively.
The holders of the common stock are entitled to one vote for each share of common stock held at all meetings of stockholders (and written actions in lieu of meetings); provided, however, that, except as otherwise required by law, holders of common stock, as such, shall not be entitled to vote on any amendment to the Third Amended and Restated Certificate of Incorporation that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to the Third Amended and Restated Certificate of Incorporation or pursuant to the General Corporation Law of Delaware.
The following shares of common stock are reserved for future issuance at December 31, 2025:
| | | | | |
| Exercise of stock options and RSUs | 14,858,057 | |
| Issuance of warrants | 5,304,255 | |
| Issuance of preferred stock | 67,992,679 | |
Total | 88,154,991 | |
Convertible Preferred Stock
The Company is authorized to issue shares of Convertible Preferred Stock as of December 31, 2025 and 2024, respectively, with a par value of $0.0001, as follows:
| | | | | | | | | | | | | | | | | | | | | | | |
| Authorized and Issued Preferred Shares |
| 2025 | | 2024 |
| Authorized | | Issued | | Authorized | | Issued |
| Series A-1 | 7,312,500 | | | 7,312,500 | | | 7,312,500 | | | 7,312,500 | |
| Series A-2 | 12,680,908 | | | 12,680,908 | | | 12,680,908 | | | 12,680,908 | |
| Series A-3 | 4,953,746 | | | 4,953,746 | | | 4,953,746 | | | 4,953,746 | |
| Series B | 11,574,841 | | | 11,574,841 | | | 11,574,841 | | | 11,574,841 | |
| Series C | 6,960,439 | | | 6,960,439 | | | 6,960,439 | | | 6,960,439 | |
| Series D | 12,857,720 | | | 12,857,720 | | | 12,857,720 | | | 12,857,720 | |
| Series D-1 | 6,085,161 | | | 6,085,161 | | | 6,085,161 | | | 6,085,161 | |
| Series E | 14,578,457 | | | 5,567,364 | | | — | | | — | |
| 77,003,772 | | | 67,992,679 | | | 62,425,315 | | | 62,425,315 | |
In connection with the Series C Preferred Stock financing, the Series C participants received warrants to purchase 1,424,002 shares of the Company’s common stock with an exercise price of $0.01 per share and a ten-year term (the “Series C Warrants”). The estimated fair value of the Series C Warrants was $3.87 per share and was computed using an option pricing method with the following assumptions: a term to maturity of 2.3 years; a risk-free rate of 0.22%; a dividend yield of zero; and expected volatility of 63%. The Company determined that the Series C Warrants should be classified in equity as of the issuance date. The relative fair value of the Series C Warrants as of the issuance date of $4.9 million, net of allocated issuance costs, has been included as a component of stockholders’ equity.
There were 5,261 exercises of Series C Warrants during the year ended December 31, 2025 and none for 2024.
In connection with the Series D Preferred Stock financing, the Series D participants received warrants to purchase 1,823,543 shares of the Company’s common stock with an exercise price of $0.01 per share and a ten-year term (the “Series D Warrants”). The estimated fair value of the Series D Warrants was $5.77 per share and was computed using an option pricing method with the following assumptions: a term to maturity of 1.8 years; a risk-free rate of 0.33%; a dividend yield of zero; and expected volatility of 58%. The Company determined that the Series D Warrants should be classified in equity as of the issuance date. The relative fair value of the Series D Warrants as of the issuance date of $9.5 million net of allocated issuance costs, has been included as a component of stockholders’ equity.
There were 2,015 exercises of Series D Warrants during the year ended December 31, 2025 and none for 2024.
In connection with the Series D-1 Preferred Stock financing that closed on July 7, 2023 (the “First D-1 Closing”), the Series D-1 participants received certain warrants to purchase a total of 2,470,840 shares of the Company’s common stock. The warrants issued consisted of 1,588,411 Penny Warrants, 630,313 Merger Warrants, and 252,116 At-the-Money Warrants (each as defined below).
The Company issued Penny Warrants (collectively, the “Penny and Merger Warrants”) with an exercise price of $0.01 per share and a ten-year term (the “Series D-1 Penny Warrants”). The estimated fair value of the Series D-1 Penny Warrants on July 7, 2023 was $3.20 per share and was computed using an option pricing method with the following assumptions: a term to maturity of 2 years; a risk-free rate of 4.94%; a dividend yield of zero; and expected volatility of 54.7%. The estimated fair value of the Series D-1 At-the-Money Warrants on July 7, 2023 was $0.54 per share and was computed using an option pricing method with the following assumptions: a term to maturity of 2 years; a risk-free rate of 4.94%; a dividend yield of zero; and expected volatility of 54.7%. The Company determined that the Series D-1 Warrants should be classified as liability as of July 7, 2023. The relative fair value of all Series D-1 Warrants as of the issuance date was $7.2 million.
In connection with the second Series D-1 Preferred Stock financing that closed on September 29, 2023 (the “Second D-1 Closing”), the Second Series D-1 participants received certain warrants to purchase a total of 317,333 shares of the Company’s common stock. The warrants issued consisted of 273,864 Penny Warrants, and 43,469 At-the-Money Warrants.
The Company issued Penny Warrants with an exercise price of $0.01 per share and a ten-year term (the “Series D-1 Second Close Penny Warrants”). The estimated fair value of the Series D-1 Second Closing Penny Warrants on September 29, 2023 was $3.55 per share and was computed using an option pricing method with the following assumptions: a term to maturity of 1.77 years; a risk-free rate of 5.13%; a dividend yield of zero; and expected volatility of 56.1%. The estimated fair value of the Series D-1 Second At-the-Money Warrants on September 29, 2023 was $0.60 per share and was computed using an option pricing method with the following assumptions: a term to maturity of 1.77 years; a risk-free rate of 5.13%; a dividend yield of zero; and expected volatility of 56.1%. The Company determined that the Series D-1 Second Closing At- the-Money Warrants should be classified as liability and the Series D-1 Second Closing Penny Warrants should be classified as equity as of September 29, 2023. The relative fair value of all Series D-1 Second Closing Warrants as of the issuance date was $1.0 million.
In conjunction with the Second D-1 Closing, it was determined that the Penny and Merger Warrants from the First D-1 Closing should be equity classified and were reclassified to equity as of September 29, 2023.
At December 31, 2025 and 2024, the At-the-Money warrants were revalued to their relative fair value of $2.2 million and $0.4 million, respectively.
There were no exercises of Series D-1 Warrants during the years ended December 31, 2025 and 2024.
In December 2025, the Company entered into the Series E Purchase Agreement with certain investors, pursuant to which the Company agreed to issue and sell to such investors an aggregate of 4,242,048 shares of Series E Preferred Stock at the Series E Per Share Price, resulting in aggregate gross proceeds of $80.0 million. In addition, the Company issued 1,325,316 shares of Series E Preferred Stock for aggregate proceeds of $25.0 million as purchase consideration paid for the acquisition of ISA. In connection with the Series E Preferred Stock financing, the Company incurred issuance costs of $2.4 million, which is recorded as a reduction to the Series E Preferred Stock.
In addition, on December 18,, 2025, the Company entered into an agreement whereby it agreed to sell 53,012 shares of Series E Preferred Shares at a future date for a price of approximately $18.86 per share. This agreement created a liability to the Company under ASC 480 to issue these shares at the specified price, however as the contracted price approximated market value of the Series E preferred both at December 18, 2025 and December 31, 2025,the Company concluded that the value of this liability was nominal and did not record a liability for this agreement. The Company received $1.0 million for these shares on January 14, 2026 and subsequently issued the related shares which in turn settled this agreement.
In connection with the Series E Preferred Stock financing, the Series E participants did not receive warrants to purchase shares of the Company’s common stock.
As of December 31, 2025 and 2024, the warrants issued in connection with Series C Preferred Stock, Series D Preferred Stock, and Series D-1 Preferred Stock financings are outstanding as follows:
| | | | | | | | | | | | | | | | | | | | | | | |
| Series C | | Series D | | Series D-1 | | Total |
Outstanding at January 1, 2025 | 315,379 | | | 1,823,416 | | | 2,539,090 | | | 4,677,885 | |
| Issued | — | | | — | | | — | | | — | |
| Exercised | 5,261 | | | 2,015 | | | — | | | 7,276 | |
| Forfeited | — | | | — | | | — | | | — | |
| Expired | — | | | — | | | — | | | — | |
| Outstanding at December 31, 2025 | 310,118 | | | 1,821,401 | | | 2,539,090 | | | 4,670,609 | |
| Exercisable at December 31, 2025 | 310,118 | | | 1,821,401 | | | 2,539,090 | | | 4,670,609 | |
| | | | | | | | | | | | | | | | | | | | | | | |
| Series C | | Series D | | Series D-1 | | Total |
Outstanding at January 1, 2024 | 315,379 | | | 1,823,416 | | | 2,539,090 | |
| 4,677,885 | |
| Issued | — | | | — | | | — | | | — | |
| Exercised | — | | | — | | | — | | | — | |
| Forfeited | — | | | — | | | — | | | — | |
| Expired | — | | | — | | | — | | | — | |
| Outstanding at December 31, 2024 | 315,379 | | | 1,823,416 | | | 2,539,090 | | | 4,677,885 | |
| Exercisable at December 31, 2024 | 315,379 | | | 1,823,416 | | | 2,539,090 | | | 4,677,885 | |
Immediately prior to an “initial public offering” (as defined in those agreements), the preferred financing warrants, to the extent vested, will be automatically net exercised as part of the initial public
offering. The following is a summary of the warrants outstanding in connection with the Series C Preferred Stock, Series D Preferred Stock, and Series D-1 Preferred Stock financings as of December 31, 2025:
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Expiration Date | | Exercise Price | | Series C | | Series D | | Series D-1 | | Total |
| May 2031 | | $ | 0.01 | | | 90,044 | | | — | | | — | | | 90,044 | |
| June 2031 | | $ | 0.01 | | | 220,074 | | | — | | | — | | | 220,074 | |
| November 2031 | | $ | 0.01 | | | — | | | 1,749,025 | | | — | | | 1,749,025 | |
| December 2031 | | $ | 0.01 | | | — | | | 72,376 | | | — | | | 72,376 | |
| July 2033 | | $ | 0.01 | | | — | | | — | | | 2,079,186 | | | 2,079,186 | |
| July 2033 | | $ | 11.17 | | | — | | | — | | | 252,116 | | | 252,116 | |
| September 2033 | | $ | 0.01 | | | — | | | — | | | 164,319 | | | 164,319 | |
| September 2033 | | $ | 11.17 | | | — | | | — | | | 43,469 | | | 43,469 | |
| | | | 310,118 | | | 1,821,401 | | | 2,539,090 | | | 4,670,609 | |
The holders of Preferred Stock have the following rights and preferences:
Dividends
The holders of outstanding shares of Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock shall be entitled to receive dividends at the rate per annum of eight percent (8%) of the Series E Original Issuance Price ($18.86343), Series D Original Issuance Price ($11.7439 per share) or Series D-1 Original Issue Price ($11.1747 per share) (subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock, as applicable) (the Series E, Series D and D-1 Dividends); provided that, such Series E, Series D and D-1 Dividends shall be payable only when, as and if declared by the Board of Directors and the Company shall be under no obligation to pay such Series E, Series D and D-1 Dividends until so declared. The right to receive dividends on shares of Series E, Series D and Series D-1 Preferred Stock shall not be cumulative, and no right to dividends shall accrue to holders of Series E, Series D and Series D-1 Preferred Stock by reason of the fact that dividends on said shares are not declared or paid.
The holders of outstanding shares of Series C Preferred Stock shall be entitled to receive dividends at the rate per annum of four percent (4%) of the Series C Original Issue Price ($7.9880 per share) (subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Series C Preferred Stock) (the Series C Accruing Dividends). The Series C Accruing Dividends shall accrue from day to day, whether or not declared, and shall be cumulative; provided that, such Series C Accruing Dividends shall be payable only when, as, and if declared by the Board of Directors and the Company shall be under no obligation to pay such Series C Accruing Dividends until so declared.
The holders of outstanding shares of Series B Preferred Stock shall be entitled to receive dividends at the rate per annum of eight percent (8%) of the Series B Original Issue Price ($6.0476 per share) (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock) (the Series B Dividends); provided that, such Series B Dividends shall be payable only when, as, and if declared by the Board of Directors and the Company shall be under no obligation to pay such Series B Dividends until so declared. The right to receive dividends on shares of Series B Preferred Stock shall not be cumulative, and no right to dividends shall accrue to holders of Series B Preferred Stock by reason of the fact that dividends on said shares are not declared or paid.
The holders of outstanding shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock shall be entitled to receive, on a pari passu basis, dividends at the rate per annum of eight percent (8%) of the applicable Original Issue Price ($1.2918 and $3.2386 per share, respectively) (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Series A-2 Preferred Stock and Series A-3 Preferred Stock) (the Series A-2/A-3 Dividends); provided that, such Series A-2/A-3 Dividends shall be payable only when, as and if declared by the Board and the Company shall be under no obligation to pay such Series A-2/A-3 Dividends until so declared. The right to receive dividends on shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock shall not be cumulative, and no right to dividends shall accrue to holders of A-2 Preferred Stock and Series A-3 Preferred Stock by reason of the fact that dividends on said shares are not declared or paid.
The Company shall not declare, pay, or set aside any dividends on shares of common stock (other than dividends on shares of common stock payable in common stock) unless the holders of Series A-1 Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series A-1 Preferred Stock on an as-converted basis.
Notwithstanding anything above to the contrary, the Company shall not declare, pay, or set aside any dividends on shares of Series B Preferred Stock unless the Company also declares, pays, or sets aside a proportionate dividend on shares of all Series A Preferred Stock.
Liquidation
In the event of any voluntary or involuntary liquidation, dissolution, or winding up of the Company or deemed liquidation event, the holders of shares of Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders before any payment shall be made to the holders of Series C Preferred Stock, Series B Preferred Stock, Series A Preferred Stock, and common stock, by reason of their ownership thereof. Should the assets of the Company available for distribution to its stockholders be insufficient to pay the holders of shares of Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock the full amount to which they shall be entitled, the holders of shares of Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts, which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full (the Series E Preferred Liquidation Amount, Series D Preferred Liquidation Amount and Series D-1 Preferred Liquidation Amount).
The holders of shares of Series C Preferred Stock then outstanding shall be entitled to be paid, after the payment of the Series E, Series D and D-1 Preferred Liquidation Amount, out of the remaining assets of the Company available for distribution to its stockholders before any payment shall be made to the holders of Series B Preferred Stock, Series A Preferred Stock, and common stock (the Series C Preferred Liquidation Amount). The holders of shares of Series B Preferred Stock then outstanding shall be entitled to be paid, after the payment of the Series E, Series D and D-1 Preferred Liquidation Amount and Series C Preferred Liquidation Amount, out of the remaining assets of the Company available for distribution to its stockholders before any payment shall be made to the holders of Series A Preferred Stock and common stock (the Series B Preferred Liquidation Amount). The holders of shares of Series A Preferred Stock then outstanding shall be entitled to be paid, after the payment of the Series E, Series D and D-1 Preferred Liquidation Amount, Series C Preferred Liquidation Amount, and Series B Preferred Liquidation Amount, out of the remaining assets of the Company available for distribution to its stockholders before any payment shall be made to the holders of common stock (the Series A Preferred Liquidation Amount). Deemed liquidation events include a merger or consolidation or the sale, lease, transfer, or other disposition of all or substantially all the assets of the Company in a single transaction or series of related transactions.
Voting
On any matter presented to the stockholders of the Company for their action or consideration at any meeting of stockholders of the Company (or by written consent of stockholders in lieu of meeting), each
holder of outstanding shares of Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of common stock into which the shares of Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter.
The Series A-1 Preferred Stockholders and Series A-2 Preferred Stockholders shall be entitled to elect two directors each to represent their respective ownership tranches. The Series A-3 Preferred Stockholders, Series B Preferred Stockholders, Series C Preferred Stockholders, Series D Preferred Stockholders, Series D-1 Preferred Stockholders, Series E Preferred Stockholders and common stockholders shall also be entitled to elect one director each to represent their respective ownership tranches.
Conversion
The holders of Preferred Stock may, at any time, convert their shares of Preferred Stock into fully paid and non-assessable shares of common stock. The number of shares of common stock into which a holder of Preferred Stock shall be entitled upon conversion shall be the product obtained by multiplying (A) the number of shares of Preferred Stock being converted by (B) the quotient obtained by dividing the applicable Original Issue Price plus any dividends declared but unpaid on such shares of Preferred Stock by the applicable Conversion Price. This Conversion Price will initially be the applicable Original Issue Price of the Preferred Stock and may be adjusted from time to time. The Preferred Stock is currently convertible into common stock at a one-to-one ratio.
The Preferred Stock shall mandatorily convert to common stock upon either (a) the closing of the sale of shares of common stock to the public, in a firm-commitment underwritten public offering (i) resulting in at least $150.0 million of proceeds and (ii) in connection with which the common stock is listed for trading on a nationally recognized exchange, (b) the effectiveness of the applicable registration statement in connection with the initial listing of the common stock for trading on a nationally recognized exchange without a related underwritten offering of such common stock for which the aggregate value of shares to be registered in such initial listing is expected to be at least $150.0 million at any time on the first day of trading, or (c) the consummation of any transaction or series of transactions pursuant to which the Company is merged into, or otherwise combines with, a special purpose acquisition company listed on a nationally recognized exchange provided that the surviving corporation is expected to receive an aggregate of at least $150.0 million immediately following such transaction, or (d) the date and time, or the occurrence of an event, specified by vote or written consent of the requisite holders. Such converted shares may not be reissued by the Company.
In respect of Series D-1 Preferred stock, if the value of the shares held by a holder after the conversion is not expected to be at least $22.3493 (Series D-1 Conversion Threshold Price) at the time of the consummation of the conversion events, the Company shall issue or deliver to each holders of Series D-1 Preferred Stock additional number of post-conversion shares as would result in the aggregate number of post-conversion shares to be held by Series D-1 Preferred Stock having a value equal to the Series D-1 Conversion Threshold Price, unless holders of Series D-1 Preferred Stock decide to waive this right.
Redemption
The Preferred Stock is classified as mezzanine (or temporary) equity, as the Preferred Stock is redeemable in the event of a “deemed liquidation event” (as defined in the Company’s governing documents). This event is not within the Company’s control as the Company’s Board is controlled by the holders of the Preferred Stock. The Company recognized the Preferred Stock at its issuance price, net of issuance costs, and is not currently remeasuring the Preferred Stock as it is neither currently redeemable nor probable of becoming redeemable.
NOTE 10 – BANK WARRANTS
On December 18, 2025, in connection with its acquisition, the Company entered into the new Loan Agreements to provide extensions of credit. In conjunction with the Loan Agreements, the Company issued 2025 Bank Warrants to Silicon Valley Bank and the other lenders party thereto to purchase a total of 173,591 shares of common stock at an exercise price of $4.65 per share, subject to adjustments. The 2025 Bank Warrants will expire on December 18, 2035. The estimated fair value of the Bank Warrants upon issuance was $1.6 million. The 2025 Bank Warrants as equity were issued together with the new debt under the Loan Agreements, the Company recorded the 2025 Bank Warrants a liability in the Company’s consolidated balance sheets at their allocated proceeds based on a relative fair value allocation between the 2025 Bank Warrants and the debt with an offset recorded as additional debt discount to be amortized.
In conjunction with the 2024 Amendment, the Company issued warrants to the Bank to purchase 43,343 shares of common stock, at an exercise price of $2.31 per share (the “2024 Warrants”). The 2024 Warrants will expire on March 27, 2034. The estimated initial fair value of the 2024 Warrants in aggregate was approximately $0.1 million and was computed using an option pricing method with the following assumptions: a term to maturity of 10 years; a risk-free rate of 4.20%; a dividend yield of zero; and expected volatility of 52.80%. The Company recorded the 2024 Warrants as a liability in the Company’s consolidated balance sheet and capitalized the fair value of the warrants as a deferred asset related to the 2024 Amendment. The 2024 Warrants also provide for 65,015 additional shares of common stock to be made available for exercise to the Bank should the Company draw on the term loan commitment as provided for by the legacy Loan and Security Agreement. On December 18, 2025, in connection with the 2025 Amendment, the Company entered into an amendment to reduce the number of additional shares from 65,015 to 21,655 shares of common stock and also provided that the 2024 Warrants will be exercisable for all 21,655 additional shares of common stock. After such amendment, the 2024 Warrants are exercisable for a total of 64,998 shares of common stock. The 2024 Warrants continue to be classified as a liability in the Company’s consolidated balance sheet as of December 31, 2025, and any changes in fair value from such liability are recorded in other income, net on the Company’s consolidated statements of operations.
On February 27, 2020, in connection with a mezzanine loan and security agreement between the Company and the Bank, the Company issued warrants to the Bank (and certain additional lenders) to purchase a total of 280,600 shares of common stock at an exercise price of $2.29 per share (the “Mezzanine Warrants”). The Mezzanine Warrants will expire on February 26, 2032. The estimated fair value of the Mezzanine Warrants in the aggregate was $0.4 million and was computed using an option pricing method with the following assumptions: a term to maturity of 12.01 years; a risk-free rate of 1.36%; a dividend yield of zero; and expected volatility of 39.5%. The Company recorded the Mezzanine Warrants as equity in the Company’s consolidated balance sheets and capitalized the fair value of the warrants as a component of the debt discount.
On March 12, 2019, another amendment was made to the Original Bank Warrant in order to remove the provisions for further adjustments. On March 12, 2019, the Company issued a warrant (the “New Bank Warrant”) to the Bank to purchase 25,428 shares of common stock at an exercise price of $0.77 per share and will expire on March 11, 2029. The New Bank Warrant also provided for an additional 25,429 shares of common stock to be made available to the Bank should the Company draw on Term Loan B under the Loan and Security Agreement; the Company drew down the required amount in May 2019. The estimated fair value of the New Bank Warrant, inclusive of both initial and additional warrant shares, was $0.9 million. The Company recorded the New Bank Warrant as equity in the Company’s consolidated balance sheet and capitalized the fair value of the warrants as a component of the debt discount.
On May 31, 2018, the Original Bank Warrant was amended to be exercisable for 63,600 shares of common stock. The Company recorded the fair value of the Original Bank Warrant’s additional
shares as equity in the Company’s consolidated balance sheets and capitalized the fair value of the warrants as a component of the deferred debt issuance costs.
On June 27, 2017, the Company entered into the Loan and Security Agreement to provide one or more loans or other extensions of credit as described in Note 8. In conjunction with the Loan and Security Agreement, the Company issued a warrant (the “Original Bank Warrant”) to the Bank to purchase 47,700 shares of common stock, at an exercise price of $0.23 per share. The Original Bank Warrant will expire on June 26, 2027. The estimated fair value of the Original Bank Warrant upon issuance was $0.3 million. The Company recorded the Original Bank Warrant as equity in the Company’s consolidated balance sheets and capitalized the fair value of the warrants as a component of the deferred debt issuance costs.
As of December 31, 2025, the following equity and debt classified warrants to issue stock of the Company remain outstanding:
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| Original Issuance Date | | Expiration Date | | Exercise Price | | Warrants Issued | | Warrants Currently Exercisable |
| June 2017 | | June 2027 | | $ | 0.23 | | | 47,700 | | | 47,700 | |
| May 2018 | | June 2027 | | $ | 0.23 | | | 15,900 | | | 15,900 | |
| May 2019 | | March 2029 | | $ | 0.77 | | | 25,428 | | | 25,428 | |
| May 2019 | | March 2029 | | $ | 0.77 | | | 25,429 | | | 25,429 | |
| February 2020 | | February 2032 | | $ | 2.29 | | | 112,240 | | | 112,240 | |
| February 2020 | | February 2032 | | $ | 2.29 | | | 112,240 | | | 112,240 | |
| February 2020 | | February 2032 | | $ | 2.29 | | | 56,120 | | | 56,120 | |
| March 2024 | | March 2034 | | $ | 2.31 | | | 64,998 | | | 64,998 | |
| December 2025 | | December 2035 | | $ | 4.65 | | | 173,591 | | | 173,591 | |
| | | | | | 633,646 | | | 633,646 | |
NOTE 11 – STOCK INCENTIVE PLAN
In 2015, the Company adopted a stock incentive plan (the “Plan”) under which it may grant stock options, stock appreciation rights, stock awards, restricted stock units, performance awards or other stock-based awards. The Plan was amended several times since its inception and, upon the most recent amendment on December 18, 2025, awards granted under the plan shall not exceed an aggregate of 19,908,600 shares of common stock. The Company had issued stock appreciation rights awards in 2015. These awards have since converted to common or expired prior to January 1, 2019. There are no outstanding stock appreciation rights as of December 31, 2025 and 2024.
The exercise price of each stock option granted under the Plan may not be less than the fair market value per share of common stock on the date of grant. The Board establishes the term and the vesting of all options issued under the Plan; however, in no event will the term exceed 10 years. The fair value of each option is estimated on the date of the grant using the Black-Scholes option-pricing model in order to measure the compensation cost associated with the award. This model incorporates certain assumptions for inputs including expected term, expected volatility in the market value of the underlying common stock, risk-free interest rate, and dividend yield of the underlying common stock.
The Board determines the fair value of common stock at the time of grant due to the absence of an active market for the Company’s common stock. The Board determined the fair value of common stock by considering a number of objective and subjective factors, including independent third-party valuations of the Company’s common stock, operating and financial performance, the lack of liquidity of capital stock, and general and industry-specific economic outlook, amongst other factors. The fair value of the underlying common stock will be determined by the Company’s Board until such time the Company’s common stock is listed on an established exchange or national market system.
Time vested and performance vested options
Presented below is a summary of the status of the time vested stock options under the Plan for the year ended December 31, 2025:
| | | | | | | | | | | | | | | | | |
| Number of Options | | Weighted-Average Exercise Price | | Weighted-Average Remaining Contractual Term (Years) |
| Outstanding at January 1, 2025 | 10,739,818 | | | $ | 2.23 | | | |
| Granted | 4,579,784 | | | 3.83 | | | |
| Exercised | (319,811) | | | 1.80 | | | |
| Forfeited | (564,322) | | | 3.84 | | | |
| Expired | (1,189,149) | | | 2.00 | | | |
| Outstanding at December 31, 2025 | 13,246,320 | | | $ | 2.74 | | | 6.6 | |
| Exercisable at December 31, 2025 | 8,165,334 | | | $ | 2.26 | | | 5.0 | |
Presented below is a summary of the status of the performance vested stock options under the Plan for the year ended December 31, 2025:
| | | | | | | | | | | | | | | | | |
| Number of Options | | Weighted-Average Exercise Price | | Weighted-Average Remaining Contractual Term (Years) |
| Outstanding at January 1, 2025 | 1,303,680 | | | $ | 2.57 | | | |
| Granted | 126,271 | | | 3.41 | | | |
| Exercised | (1,000) | | | 0.23 | | | |
| Forfeited | — | | | — | | | |
| Expired | — | | | — | | | |
| Outstanding at December 31, 2025 | 1,428,951 | | | $ | 2.65 | | | 5.9 | |
| Exercisable at December 31, 2025 | 1,245,603 | | | $ | 2.70 | | | 5.6 | |
Total share-based compensation expense for the years ended December 31, 2025 and 2024 was $4.3 million and $2.9 million respectively. This is recognized in the consolidated statement of operations as follows: $0.7 million in direct cost of sales, $2.0 million in research and development, and $1.6 million in selling, general and administrative expenses for the year ended December 31, 2025 and $0.5 million in direct cost of sales, $1.3 million in research and development, and $1.1 million in selling, general and administrative expenses for the year ended December 31, 2024.
As of December 31, 2025 and 2024, there was $9.7 million and $4.0 million of unrecognized compensation cost related to unvested share-based compensation arrangements granted under the Plan. The 2025 unrecognized cost is expected to be recognized over a weighted average remaining period of 2.9 years.
The total intrinsic value of stock options exercised during the years ended December 31, 2025 and 2024 was $0.8 million and $0.1 million, respectively. The fair value of the shares related stock options, which vested during the years ended December 31, 2025 and 2024, totaled $4.0 million and $2.6 million, respectively.
The fair value of each stock option award was estimated on the date of grant using the Black-Scholes Option Pricing Model using the weighted-average assumptions noted in the following table:
| | | | | | | | | | | |
| December 31, 2025 | | December 31, 2024 |
| Expected volatility | 59.5% to 65.4% | | 54.6% to 64.3% |
| Expected dividend yield | — | % | | — | % |
| Expected option term (in years) | 5.0 – 6.2 | | 5.0 - 9.9 |
| Risk-free interest rate | 3.6% to 4.4% | | 3.5% to 4.7% |
•Expected volatility: The expected volatility was determined by examining the historical volatilities of a group of industry peers, as the Company did not have any trading history for the Company’s common stock.
•Expected dividend yield: The expected dividend yield was based on the Company’s history and management’s current expectation regarding future dividends.
•Expected option term: For employees, the expected term is determined using the “simplified” method, as prescribed by the SEC’s Staff Accounting Bulletin No. 107, Share-Based Payment, to estimate on a formula basis the expected term of the Company’s employee stock options which are considered to have “plain vanilla” characteristics.
•Risk-free interest rate: The risk-free interest rate was based upon quoted market yields for the United States Treasury instruments with terms that were consistent with the expected term of the Company’s stock options.
RSUs
In September 2025, the Board awarded and issued 182,786 RSUs at a grant date value of $4.65 per share. These RSUs contain a four-year ratable vesting from the grant date and are contingent based upon either an IPO or a change of control occurring within the next five years from the grant date. As these awards vest based upon an IPO or change of control event no amounts were expensed for the year ended December 31, 2025. There were no forfeitures or expired units related to these awards during the year. The total unrecognized compensation related to these RSUs was $0.8 million as of December 31, 2025.
NOTE 12 – ACCRUED EXPENSES AND CURRENT LIABILITIES
Accrued expenses and other current liabilities consisted of the following (in thousands):
| | | | | | | | | | | |
| Year Ended December 31, | | Year Ended December 31, |
| 2025 | | 2024 |
| Accrued salary and benefits | $ | 4,119 | | | $ | 2,497 | |
| Other | 898 | | | 244 | |
Total | $ | 5,017 | | | $ | 2,741 | |
NOTE 13 – OTHER LIABILITIES
In connection with the acquisition in December 2025, several non-cash considerations were recognized as part of the acquisition within other liabilities. The table below shows the holdback, deferred consideration and contingent consideration recorded in other liabilities (in thousands).
| | | | | |
| As of December 31, |
| 2025 |
ISA deferred cash holdback(1) | $ | 10,000 | |
ISA deferred consideration(1) | 13,500 | |
ISA contingent consideration(1) | 300 | |
Total | $ | 23,800 | |
_______________
(1)See Note 3 – Business acquisition for more information
NOTE 14 – SEGMENT REPORTING
ASC 280, Segment Reporting, defines operating segments as components of an enterprise where discrete financial information is available that is evaluated regularly by the chief operating decision-maker in deciding how to allocate resources and in assessing performance. The Company operates as a single operating and reportable segment. The CODM, the Company’s Chief Executive Officer, evaluates financial performance and allocates resources using consolidated net income. Because the CODM’s profitability measure is the same as the Company’s consolidated net income presented in the statement of operations, no separate reconciliation is required. The CODM does not review financial information below the consolidated company level for internal reporting or decision-making purposes.
Although the CODM reviews expenses only on a consolidated and aggregated basis rather than by individual category, certain expense types represent significant expenses of the Company’s profitability measure. These include direct labor, depreciation and amortization, and selling, general and administrative expenses, all of which are included within the Company’s consolidated results and therefore within the CODM’s segment profit measure. The accounting policies used in preparing the CODM’s measure of segment profit are the same as those described in Significant Accounting Policies. Other segment items consist of income and expenses not separately presented to the CODM, including interest income and expense, and income taxes, all of which are reflected in consolidated net income. This approach ensures that the CODM’s segment profit measure and other segment items are prepared using consistent accounting policies aligned with those applied in the consolidated financial statements.
| | | | | | | | | | | | | | |
| | Year Ended December 31, |
| (in thousands) | | 2025 | | 2024 |
| Revenue | | $ | 117,660 | | | $ | 67,559 | |
| Expenses: | | | | |
| Direct costs | | 21,687 | | | 18,927 | |
Indirect labor and related costs(1) | | 43,437 | | | 39,153 | |
| Depreciation and amortization | | 23,568 | | | 25,185 | |
| Indirect professional fees | | 8,058 | | | 7,300 | |
| Stock based compensation | | 4,290 | | | 2,885 | |
| Other operating expenses | | 21,511 | | | 8,795 | |
| Other non-operating income, net | | (831) | | | (5,689) | |
| Provision for income tax | | (6,733) | | | — | |
Net income (loss) | | $ | 2,673 | | $ | (28,997) | |
_______________
(1)Includes fringe related expenses and excludes stock-based compensation.
NOTE 15 – INCOME TAXES
The Company files federal income tax returns in the U.S. and state income tax returns in various states where the Company maintains employees and performs services. Some tax years remain open to examination by major taxing jurisdictions to which the Company is subject as carryforward attributes generated in years past may still be adjusted in a future period. The Company has not recorded any interest or penalties on unrecognized tax benefits since inception.
Loss Before Income Tax
The components of loss before income tax are as follows (in thousands):
| | | | | | | | | | | | | | |
| | Year Ended December 31, |
| | 2025 | | 2024 |
| U.S. | | $ | (4,060) | | | $ | (28,997) | |
| Foreign | | — | | | — | |
Loss before income tax | | $ | (4,060) | | | $ | (28,997) | |
The provision for income taxes for the years ended December 31, 2025 and 2024, consists of the following (in thousands):
| | | | | | | | | | | | | | |
| | Year Ended December 31, |
| | 2025 | | 2024 |
| Federal | | $ | — | | | $ | — | |
| Foreign | | — | | | — | |
| State | | — | | | — | |
| Total current tax expense | | — | | | — | |
| Federal | | (6,403) | | | — | |
| Foreign | | — | | | — | |
| State | | (330) | | | — | |
| Total deferred provision | | (6,733) | | | — | |
Total (benefit) provision for income taxes | | $ | (6,733) | | | $ | — | |
A reconciliation of the U.S. Federal statutory rate to the effective rate as of December 31, 2025 and 2024 is as follows (in thousands, except percentages):
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Year Ended December 31, |
| | 2025 | | 2024 |
| U.S. federal statutory income tax | | $ | (853) | | | 21 | % | | $ | (6,089) | | | 21 | % |
State and local income tax, net of federal (national) income tax effect(1) | | (234) | | | 6 | % | | — | | | — | |
| Changes in valuation allowance | | (7,137) | | | 176 | % | | 5,516 | | | (19) | % |
| Non-taxable or non-deductible items: | | | | | | |
| Transaction costs | | 388 | | | (10) | % | | — | | | — | |
Fair market value adjustments | | 477 | | | (12) | % | | — | | | — | |
| Stock based compensation | | 449 | | | (11) | % | | 412 | | | (1) | % |
| Lobbying expense | | 134 | | | (3) | % | | 144 | | | — | |
| Other | | 42 | | | (1) | % | | 17 | | | — | |
Effective income tax benefit | | $ | (6,733) | | | 166 | % | | $ | — | | | — | |
_______________
(1)State and local taxes in California and Colorado comprise the majority of this category.
Income Tax Payments
Disclosed below is a summary of income taxes paid by jurisdiction pursuant to the disclosure requirements of ASU 2023-09 for the year ended December 31, 2025:
| | | | | | | | | | | |
| As of December 31, |
| 2025 | | 2024 |
U.S. — Federal | $ | — | | | $ | — | |
U.S. — State and local | — | | | — | |
Total current tax expense | $ | — | | | $ | — | |
Deferred Taxes
The effects of temporary differences that give rise to significant portions of deferred tax assets and deferred tax liabilities as of December 31, 2025 and 2024 are presented as follows (in thousands):
| | | | | | | | | | | |
| As of December 31, |
| 2025 | | 2024 |
| Deferred tax assets: | | | |
Net operating loss carryforwards | $ | 35,120 | | | $ | 34,594 | |
Research and development credits | 702 | | | 702 | |
Operating lease right-of-use liabilities | 4,002 | | | 2,560 | |
Section 174 research and development expenses | 269 | | | 381 | |
Inventory | 1,316 | | | — | |
Stock based compensation | 984 | | | 585 | |
| Other | 239 | | | 82 | |
Gross deferred tax assets | $ | 42,632 | | | $ | 38,904 | |
| Less: valuation allowance | (27,335) | | | (34,889) | |
Net deferred tax assets | $ | 15,297 | | | $ | 4,015 | |
| Deferred tax liabilities: | | | |
| Property, plant, and equipment | (4,782) | | | (1,715) | |
| Operating lease right-of-use-assets | (3,765) | | | (2,300) | |
| Intangible assets | (7,727) | | | — | |
| Other | — | | | — | |
Total deferred tax liabilities | (16,274) | | | (4,015) | |
Net deferred tax liabilities | $ | (977) | |
| $ | — | |
For the year ended December 31, 2025, the difference between the Company’s effective tax rate and the statutory rate is primarily driven by the valuation allowance established against U.S. federal and state deferred income tax assets.
A reconciliation of the beginning and ending amounts of the valuation allowance for the year ended December 31, 2025 and 2024, is as follows (in thousands):
| | | | | | | | | | | |
| As of December 31, |
| 2025 | | 2024 |
| Valuation allowance beginning of year | $ | 34,889 | | | $ | 27,792 | |
Gross decrease due to current year activity | $ | (821) | | | $ | 7,097 | |
Gross decrease due to purchase accounting | $ | (6,733) | | | $ | — | |
Valuation allowance end of period | $ | 27,335 | | | $ | 34,889 | |
Management regularly assesses the ability to realize deferred tax assets recorded based upon the weight of available evidence, including such factors as recent earnings history and expected future taxable income on a jurisdiction-by-jurisdiction basis. In the event that the Company changes its determination as to the amount of realizable deferred tax assets, the Company will adjust its valuation allowance with a corresponding impact to the provision for income taxes in the period in which such determination is made. The Company’s management believes that, based on a number of factors, it is more likely than not, that all or some portion of the deferred tax assets will not be realized; and accordingly, for the year ended December 31, 2025, the Company has provided a valuation allowance against the Company’s U.S. net deferred tax assets. The net change in the valuation allowance for the year ended December 31, 2025 was a decrease of $7,554. The current year valuation allowance change includes a $6,733 decrease recorded through the income statement as a result of deferred tax liabilities recorded in purchase accounting.
On December 31, 2025 the Company has net operating loss carry forwards for federal income tax purposes of $134,105. The federal net operating loss of $128,123 generated subsequent to the year ended December 31, 2017 carries forward indefinitely, while the remaining federal net operating loss carryforwards for $5,981 begin to expire in 2035.
The Company’s ability to utilize its existing net operating loss carryforwards and other tax attributes may be limited if the Company experiences an ownership change as defined in the Internal Revenue Code Section 382 due to prior or future transaction. Generally, an ownership change occurs when an ownership percentage of stockholders holding 5% or greater of the Company’s shares changes by more than 50% over a three-year period. The Company determined multiple ownership changes occurred between tax years 2015 and 2023. As a result, the ownership changes are expected to limit the future utilization of net operating losses, including approximately $1.2 million of net operating losses which preceded the Tax Cuts and Jobs Act of 2017 that are expected to expire unused.
The Company accounts for the uncertainty in income taxes by prescribing a minimum recognition threshold for a tax position taken, or expected to be taken, in a tax return that is required to be met before being recognized in the consolidated financial statements. The Company recognizes interest and penalties related to uncertain tax positions as income tax expense. As of December 31, 2025, the Company had no unrecognized tax benefits that could impact the income tax expense.
The Company files income tax returns in the U.S. federal and state jurisdictions. As of December 31, 2025, the Company is no longer subject to federal or state income tax examinations by taxing authorities for years before December 31, 2020; however, taxing authorities can adjust NOL carryforwards in open tax years that may have been carried forward from closed years. The Company’s federal tax returns have not been selected for examination.
NOTE 16 – LEASES
The company has existing operating and finance leases for corporate offices and facilities, vehicles and certain equipment. The Company's leases have remaining lease terms of less than one year to ten years, some of which include options to extend the lease term. For purposes of calculating lease
liabilities, lease terms include options to extend the lease when it is reasonably certain that the Company will exercise such options.
The components of lease expense are as follows (in thousands):
| | | | | | | | | | | |
| December 31, |
| 2025 | | 2024 |
| Lease expense: | | | |
| Operating lease cost | $ | 3,554 | | | $ | 3,611 | |
| Total lease cost | $ | 3,554 | | | $ | 3,611 | |
Operating lease cost included in indirect cost of sales, excluding depreciation and amortization and selling, general and administrative expenses was $2.7 million and $0.9 million, respectively for the year ended December 31, 2025. Operating lease cost included in indirect cost of sales and selling, general and administrative expenses was $2.7 million and $0.9 million for the year ended December 31, 2024, respectively.
Supplemental cash flow information related to leases is as follows (in thousands):
| | | | | | | | | | | |
| December 31, |
| 2025 | | 2024 |
| Cash paid amounts included in measurement of lease liabilities | | | |
| Operating cash outflows – payment on operating leases | $ | 3,579 | | | $ | 3,027 | |
| Right-of-use assets obtained in exchange for new lease obligations | | | |
| Operating leases | 1,322 | | | — | |
Supplemental balance sheet information related to leases is as follows (in thousands):
| | | | | | | | | | | |
| December 31, |
| 2025 | | 2024 |
| Assets | | | |
Operating lease right-of-use assets | $ | 15,403 | | | $ | 8,789 | |
| Liabilities | | | |
| Operating lease liabilities | 16,330 | | | 9,785 | |
| Less current portion: Operating lease liabilities | (3,437) | | | (3,276) | |
Operating lease long term liability | $ | 12,893 | | | $ | 6,509 | |
The operating right-of-use assets and lease liabilities were calculated using a weighted average discount rate of 7.84% and 3.36% as of December 31, 2025 and 2024, respectively. The weighted average remaining lease term was 6.9 years and 3.4 years as of December 31, 2025 and 2024, respectively.
Future undiscounted cash flows for each of the next five years and the reconciliation to the lease liabilities recognized on the balance sheet as of December 31, 2025, is as follows (in thousands):
| | | | | |
| Operating Leases for Year Ending December 31, 2025 |
| 2026 | $ 4,621 |
| 2027 | 3,022 | |
| 2028 | 2,549 | |
| 2029 | 2,435 | |
| 2030 | 1,960 |
| Thereafter | 6,818 | |
| Total future minimum lease payments | 21,405 |
| Less present value discount | (5,075) |
| Less operating lease liabilities, current | (3,437) |
| Operating lease liabilities, net of current portion | $ | 12,893 | |
NOTE 17 – COMMITMENTS AND CONTINGENCIES
Legal Matters
The Company has implemented controls designed to promote and achieve compliance with applicable trade controls, including export control and sanctions restrictions. However, in the past, the Company has inadvertently exported certain defense services in violation of the International Traffic in Arms Regulations. For example, the Company submitted the final reports of two voluntary self-disclosures to the Directorate of Defense Trade Controls (“DDTC”) on March 18, 2022, and June 17, 2025, respectively. On March 25, 2025, DDTC issued a letter resolving the first voluntary self-disclosure without pursuing any civil monetary penalty against the Company. The second voluntary self-disclosure submitted to DDTC currently remains under review, and it is possible that DDTC may assess administrative fines or other penalties against the Company at the conclusion of its review.
In October 2025, the Company entered into a favorable legal settlement wherein the Company received $2.8 million in a settlement of a legal matter. The gain was recorded in selling, general, and administrative expense in the consolidated statements of operations. As of December 31, 2025, $1.5 million is outstanding on this settlement and is recorded in other long-term assets in the consolidated balance sheet.
Subsequent to December 31, 2025, the Company reached a settlement with a third-party vendor related to an ongoing litigation claim. The Company has accrued $0.5 million in selling, general and administrative expense related to this settlement.
| | | | | |
| Loss Contingencies |
Balance December 31, 2024 | $ | — | |
Charges to legal accrual loss contingency | 500 | |
Balance December 31, 2025 | $ | 500 | |
The Company is periodically involved in legal proceedings, legal actions and claims arising in the normal course of business. Management believes that the outcome of such legal proceedings, legal actions and claims will not have a significant adverse effect, individually or in aggregate, on the Company’s financial position, results of operations or cash flows.
NOTE 18 – NET INCOME (LOSS) PER SHARE
The following table sets forth the computation of the basic and diluted net income (loss) per share (in thousands except per share amounts):
| | | | | | | | | | | |
| Year Ended December 31, |
| 2025 | | 2024 |
| Basic net income (loss) per share | | | |
| Numerator: | | | |
| Net income (loss) | $ | 2,673 | | | $ | (28,997) | |
| Preferred stock dividends | (2,224) | | | (2,224) | |
| Income allocated to participating securities | (401) | | | — |
Net income (loss) attributable to common stockholders, basic | $ | 48 | | | $ | (31,221) | |
| Denominator: | | | |
Weighted-average number of shares outstanding used to compute net income (loss) per share attributable to common stockholders, basic | 7,511,429 | | | 6,249,867 | |
| Net income (loss) per share attributable to common shareholders, basic | $ | 0.01 | | | $ | (5.00) | |
| | | |
| Diluted net income (loss) per share | | | |
| Numerator: | | | |
| Net income (loss) attributable to common stockholders, basic | $ | 48 | | | $ | (31,221) | |
Add: Adjustment to the income allocated to participating securities | 33 | | | — | |
Net income (loss) attributable to common stockholders, diluted | $ | 81 | | | $ | (31,221) | |
| Denominator: | | | |
| Weighted-average number of shares outstanding used to compute net income (loss) per share attributable to common stockholders, basic | 7,511,429 | | | 6,249,867 | |
| | | |
| Weighted-average effect of potentially dilutive securities: | | | |
Stock options | 5,883,058 | | | — | |
Warrants for common stock | 417,842 | | | — | |
Weighted-average number of shares outstanding used to compute net income (loss) per share attributable to common stockholders, diluted | 13,812,329 | | | 6,249,867 | |
| Net income (loss) per share attributable to common shareholders, dilutive | $ | 0.01 | | | $ | (5.00) | |
For the year ended December 31, 2024, the Company's potential dilutive securities, which include stock options, redeemable, convertible preferred stock, restricted stock units (RSUs) and warrants, have been excluded from the computation of diluted net loss per share as the effect would be to reduce the net loss per share. Therefore, the weighted average number of common shares outstanding used to calculate both basic and diluted net loss per share is the same.
Dilutive shares which could exist pursuant to the exercise of outstanding stock instruments, and which were not included in the calculation because their effect would have been anti-dilutive are as follows:
| | | | | | | | | | | |
| Year Ended December 31, |
| 2025 | | 2024 |
| Warrants to purchase shares of common stock | 974,015 | | | 5,077,062 | |
| Options to purchase shares of common stock | 183,347 | | | 12,001,960 | |
| RSUs | 182,786 | | | — | |
| Warrants for common stock | — | | | — | |
| Shares of common stock issuable upon conversion preferred stock | — | | | 62,425,315 | |
Total | 1,340,148 | | | 79,504,337 | |
NOTE 19 – RETIREMENT PLAN
The Company has a 401(k) qualified retirement plan covering substantially all its employees other than non-resident aliens. The contribution payable as of December 31, 2025 and 2024 was $0.2 million and $0.1 million and is included in accrued expenses and other current liabilities in the consolidated balance sheets, respectively. The 2025 contribution was funded in the first quarter of 2026. The Company’s 401(k) expense for the years ended December 31, 2025 and 2024 was $0.6 million and $0.5 million, respectively.
NOTE 20 – FAIR VALUE MEASUREMENTS
The following table represents the Company’s financial instruments that are measured at fair value on a recurring basis as of December 31, 2025 and 2024 (in thousands):
| | | | | | | | | | | | | | | | | | | | | | | |
| Level 1 | | Level 2 | | Level 3 | | Total Fair Value Measurement at December 31, 2025 |
| Liabilities: | | | | | | | |
| ISA deferred consideration | $ | — | | | $ | — | | | $ | 13,500 | | | $ | 13,500 | |
ISA contingent earnout liability | — | | | — | | | 300 | | | 300 | |
| 2024 Bank Warrants | — | | | — | | | 658 | | | 658 | |
2025 Bank Warrants | — | | | — | | | 1,415 | | | 1,415 | |
At-the-Money Warrants | — | | | — | | | 2,194 | | | 2,194 | |
| Total liabilities held at fair value | $ | — | | | $ | — | | | $ | 18,067 | | | $ | 18,067 | |
|
| |
| |
| |
|
| Level 1 | | Level 2 | | Level 3 | | Total Fair Value Measurement at December 31, 2024 |
| Assets: | | | | | | | |
Investments | $ | 39,716 | | | $ | — | | | $ | — | | | $ | 39,716 | |
| Total assets held at fair value | $ | 39,716 | | | $ | — | | | $ | — | | | $ | 39,716 | |
| Liabilities: |
| |
| |
| |
|
| Contingent earnout liability | $ | — | | | $ | — | | | $ | — | | | $ | — | |
| At-the-Money Warrants | — | | | — | | | 362 | | 362 |
| Total liabilities held at fair value | $ | — | | | $ | — | | | $ | 362 | | | $ | 362 | |
As of December 31, 2025, the carrying amount of the Company’s 2025 Term Loan and 2025 Mezzanine Loan approximates their fair value.
There were no transfers between levels during the years ended December 31, 2025 and 2024. Level 3 details for the years ended December 31, 2025 and 2024 as follows (in thousands):
| | | | | | | | | | | | | | | | | |
| Warrant Liability | | Deferred Consideration | | Contingent Consideration |
| Balance December 31, 2024 | $ | 362 | | | $ | — | | | $ | — | |
| Deferred consideration recorded at the acquisition of ISA | — | | | 13,500 | | | — | |
| Contingent consideration recorded at the acquisition of ISA | — | | | — | | | 300 | |
| Warrants issued | 1,635 | | | — | | | — | |
| Liability warrants revalued | 2,270 | | | — | | | — | |
| Balance December 31, 2025 | $ | 4,267 | | | $ | 13,500 | | | $ | 300 | |
| | | | | | | | | | | |
| Warrant Liability | | Contingent Consideration |
| Balance December 31, 2023 | $ | 94 | | | $ | 500 | |
| Settlement of contingent consideration | — | | | (288) | |
| Warrants issued | 68 | | | — | |
| Loss included in earnings due to fair value adjustment | 200 | | | — | |
| Write-off upon settlement | — | | | (212) | |
| Balance December 31, 2024 | $ | 362 | | | $ | — | |
Level 3 Fair Value Inputs
The Company used a market approach based on the most recent arms-length transaction to estimate the enterprise value of the Company and then allocated the enterprise value to the liability-classified warrants using an option-pricing model. The significant unobservable inputs used in the valuation model to measure the warrant liability that is categorized within Level 3 of the fair value hierarchy are as follows:
| | | | | | | | | | | | | | |
| | At-the-Money Warrant Liability |
| | December 31, |
| Assumption | | 2025 | | 2024 |
| Stock price | | $ | 11.40 | | | $ | 3.02 | |
| Strike price | | $ | 11.20 | | | $ | 11.20 | |
| Volatility (annual) | | 59.5 | % |
| 54.9 | % |
| Risk-free rate | | 4.0 | % |
| 4.6 | % |
| Estimated time to expiration (years) | | 7.5 |
| 2.0 |
| Dividend yield | | — | % |
| — | % |
| | | | | | | | | | | | | | |
| | Bank Warrant Liability |
| | December 31, |
| Assumption | | 2025 | | 2024 |
| Stock price | | $ | 11.40 | | | $ | 3.02 | |
| Strike price | | $ 2.30 – 4.70 | | $ | 2.30 | |
| Volatility (annual) | | 56.8 – 58.8% | | 82.5 | % |
| Risk-free rate | | 4.0 – 4.2% | | 4.2 | % |
| Estimated time to expiration (years) | | 8.2 – 10 | | 10 |
| Dividend yield | | — | % | | — | % |
The ISA deferred consideration represents future payments to the sellers of ISA based on the passage of time which may vary based upon a Liquidation Event as defined by the Merger Agreement. The liability is measured at fair value on a recurring basis and is classified within Level 3 of the fair value hierarchy due to the use of significant unobservable inputs. The following table summarizes the significant unobservable inputs used in the valuation:
| | | | | | | | |
| Assumption | | ISA deferred consideration December 31, 2025 |
| Payment | | $ | 15,000 | |
| Cost of debt | | 8.8% – 8.9% |
| Payment date (years) | | 0.7 to 3 |
The ISA contingent earnout liability represents potential future payments to the sellers based on the achievement of specified revenue thresholds over the earnout period. The liability is measured at fair value on a recurring basis and is classified within Level 3 of the fair value hierarchy due to the use of significant unobservable inputs. The fair value is estimated using an option-based valuation technique and is remeasured at each reporting date, with changes in fair value recognized in earnings. The following table summarizes the significant unobservable inputs used in the valuation:
| | | | | | | | |
| Assumption | | ISA contingent consideration December 31, 2025 |
| Long call strike price | | $ | 70,000 | |
| Short call strike price | | $ | 75,000 | |
| Volatility (annual) | | 15.0 | % |
| Risk-free rate | | 3.5 | % |
| Credit discount rate | | 8.8 | % |
| Earnout term | | 1 year |
NOTE 21 – SUBSEQUENT EVENTS
The Company evaluated its December 31, 2025, financial statements for subsequent events through April __, 2026 the date the financial statements were issued. Please note the following subsequent events:
In January 2026, the Company issued and sold an aggregate of 756,754 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $14.3 million. Additionally, in February 2026, the Company issued and sold an aggregate of 185,543 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate gross proceeds of $3.5 million.
In March 2026, the Company settled an ongoing litigation matter with a third-party vendor for $0.5 million.
Independent Auditors' Report
To the Shareholders of
Innovative Signal Analysis, Inc.
Opinion
We have audited the financial statements of Innovative Signal Analysis, Inc. (the Company), which comprise the balance sheets as of September 30, 2025 and December 31, 2024, and the related statements of operations, changes in stockholders' deficit and cash flows for the period from January 1, 2025 to September 30, 2025 and the year ended December 31, 2024, and the related notes to the financial statements.
In our opinion, the accompanying financial statements present fairly, in all material respects, the financial position of the Company as of September 30, 2025 and December 31, 2024, and the results of its operations and its cash flows for the period from January 1, 2025 to September 30, 2025 and the year ended December 31, 2024 in accordance with accounting principles generally accepted in the United States of America.
Basis for Opinion
We conducted our audits in accordance with auditing standards generally accepted in the United States of America (GAAS). Our responsibilities under those standards are further described in the Auditors' Responsibilities for the Audit of the financial statements section of our report. We are required to be independent of the Company and to meet our other ethical responsibilities, in accordance with the relevant ethical requirements relating to our audits. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.
Responsibilities of Management for the Financial Statements
Management is responsible for the preparation and fair presentation of the financial statements in accordance with accounting principles generally accepted in the United States of America, and for the design, implementation and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.
In preparing the financial statements, management is required to evaluate whether there are conditions or events, considered in the aggregate, that raise substantial doubt about the Company's ability to continue as a going concern within one year after the date that the Financial Statements are available to be issued.
Auditors' Responsibilities for the Audit of the Financial Statements
Our objectives are to obtain reasonable assurance about whether the financial statements as a whole are free from material misstatement, whether due to fraud or error, and to issue an auditors' report that includes our opinion. Reasonable assurance is a high level of assurance but is not absolute assurance and therefore is not a guarantee that an audit conducted in accordance with GAAS will always detect a material misstatement when it exists. The risk of not detecting a material misstatement resulting from fraud is higher than for one resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations or the override of internal control. Misstatements are considered material if there is a substantial likelihood that, individually or in the aggregate, they would influence the judgment made by a reasonable user based on the financial statements.
In performing an audit in accordance with GAAS, we:
•Exercise professional judgment and maintain professional skepticism throughout the audit.
•Identify and assess the risks of material misstatement of the financial statements, whether due to fraud or error, and design and perform audit procedures responsive to those risks. Such procedures include examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements.
•Obtain an understanding of internal control relevant to the audit in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control. Accordingly, no such opinion is expressed.
•Evaluate the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluate the overall presentation of the financial statements.
•Conclude whether, in our judgment, there are conditions or events, considered in the aggregate, that raise substantial doubt about the Company's ability to continue as a going concern for a reasonable period of time.
We are required to communicate with those charged with governance regarding, among other matters, the planned scope and timing of the audit, significant audit findings and certain internal control-related matters that we identified during the audit.
/s/ Baker Tilly US, LLP
Frisco, Texas
April 10, 2026
| | |
| Innovative Signal Analysis, Inc. |
| Balance Sheets |
| September 30, 2025 and December 31, 2024 |
| | | | | | | | | | | | | | |
| | September 30, 2025 | | December 31, 2024 |
| Assets | | | | |
| Current Assets | | | | |
| Cash and cash equivalents | | $ | 4,811,634 | | | $ | 3,030,195 | |
| Accounts receivable | | 5,886,041 | | | 6,356,274 | |
| Contract assets: | | | | |
| Costs and estimated earnings in excess of billings | | 3,718,340 | | | 1,874,205 | |
| Inventory, net | | 3,617,796 | | | 2,694,313 | |
| Prepaid expenses and other current assets | | 1,693,277 | | | 863,713 | |
| Total current assets | | 19,727,088 | | | 14,818,700 | |
Property and Equipment, Net | | 6,605,866 | | | 6,724,014 | |
Capitalized Pre-production, Net | | 10,268,920 | | | 8,433,200 | |
Operating Lease Right-of-Use Assets, Net | | 9,883,926 | | | 7,045,059 | |
Finance Lease Right-of-Use Assets, Net | | 62,610 | | | — | |
| Total assets | | $ | 46,548,410 | | | $ | 37,020,973 | |
| Liabilities and Stockholders' Deficit | | | | |
| Current Liabilities | | | | |
| Accounts payable | | $ | 687,193 | | | $ | 548,417 | |
| Accrued expenses | | 3,928,737 | | | 152,621 | |
| Contract liabilities: | | | | |
| Billings in excess of costs and estimated earnings | | 464,679 | | | 1,186,404 | |
| Deferred revenues | | 23,556 | | | 195,230 | |
| Operating lease liabilities, current portion | | 857,081 | | | 602,598 | |
| Finance lease liabilities, current portion | | 53,534 | | | — | |
| Total current liabilities | | 6,014,780 | | | 2,685,270 | |
Stock Based Compensation Liability | | 35,175,009 | | | 29,019,251 | |
Deferred Tax Liability | | 258,474 | | | 51,949 | |
Operating Lease Liabilities, Net of Current Portion | | 9,368,265 | | | 6,683,768 | |
| Total liabilities | | 50,816,528 | | | 38,440,238 | |
| Stockholders' Deficit | | | | |
| Common stock, par $0.005, 2,000,000 shares authorized and issued, 1,815,050 shares outstanding | | 10,000 | | | 10,000 | |
| Treasury stock - at cost, 184,950 shares | | (967,431) | | | (967,431) | |
| Accumulated deficit | | (3,310,687) | | | (461,834) | |
| Total stockholders' deficit | | (4,268,118) | | | (1,419,265) | |
| Total liabilities and stockholders' deficit | | $ | 46,548,410 | | | $ | 37,020,973 | |
| | |
| Innovative Signal Analysis, Inc. |
| Statements of Operations |
| Period From January 1, 2025 to September 30, 2025 and Year Ended December 31, 2024 |
| | | | | | | | | | | | | | |
| | September 30, 2025 | | December 31, 2024 |
| Net Revenues | | | | |
| Contract revenue | | $ | 46,671,585 | | | $ | 51,795,824 | |
| Cost of Revenues | | | | |
| Direct costs of revenue | | 19,200,215 | | | 21,016,180 | |
| Gross profit | | 27,471,370 | | | 30,779,644 | |
| Operating Expenses | | | | |
| General and administrative expenses | | 10,729,755 | | | 11,616,277 | |
| Salaries and employee benefits | | 11,448,093 | | | 12,977,877 | |
| Stock based compensation expense | | 6,341,274 | | | 4,866,504 | |
| Depreciation and amortization expense | | 971,670 | | | 1,455,517 | |
| Total operating expenses | | 29,490,792 | | | 30,916,175 | |
| Loss from operations | | (2,019,422) | | | (136,531) | |
| Other Income | | | | |
| Interest income | | 176,522 | | | 307,796 | |
| Total other income | | 176,522 | | | 307,796 | |
| (Loss) income before income taxes | | (1,842,900) | | | 171,265 | |
Income Tax Expense | | (1,005,953) | | | (1,084,348) | |
| Net loss | | $ | (2,848,853) | | | $ | (913,083) | |
| | |
| Innovative Signal Analysis, Inc. |
| Statements of Changes in Stockholders' Deficit |
| Period From January 1, 2025 to September 30, 2025 and Year Ended December 31, 2024 |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Common Stock | | Treasury Stock | | Accumulated Deficit | | Total Stockholders' Deficit |
| Shares | | Amount | | Shares | | Amount | | |
Balance, January 1, 2024 | 2,000,000 | | | $ | 10,000 | | | (184,950) | | | $ | (967,431) | | | $ | 451,249 | | | $ | (506,182) | |
| Net loss | — | | | — | | | — | | | — | | | (913,083) | | | (913,083) | |
Balance, December 31, 2024 | 2,000,000 | | | 10,000 | | | (184,950) | | | (967,431) | | | (461,834) | | | (1,419,265) | |
| Net loss | — | | | — | | | — | | | — | | | (2,848,853) | | | (2,848,853) | |
Balance, September 30, 2025 | 2,000,000 | | | $ | 10,000 | | | (184,950) | | | $ | (967,431) | | | $ | (3,310,687) | | | $ | (4,268,118) | |
| | |
| Innovative Signal Analysis, Inc. |
| Statements of Cash Flows |
| Period From January 1, 2025 to September 30, 2025 and Year Ended December 31, 2024 |
| | | | | | | | | | | | | | |
| | September 30, 2025 | | December 31, 2024 |
| Cash Flows From Operating Activities | | | | |
| Net loss | | $ | (2,848,853) | | | $ | (913,083) | |
| Adjustments to reconcile net loss to net cash provided by operating activities: | | | | |
| Depreciation expense | | 971,670 | | | 886,561 | |
| Amortization expense | | — | | | 568,956 | |
| Deferred income taxes | | 206,525 | | | (24,678) | |
| Noncash operating lease expense | | 588,618 | | | 714,302 | |
| Noncash stock-compensation expense | | 6,341,274 | | | 4,866,504 | |
| Changes in operating assets and liabilities: | | | | |
| Accounts receivable | | 470,233 | | | (1,359,236) | |
| Contract assets | | (1,844,135) | | | (206,510) | |
| Inventory | | (923,483) | | | (1,072,363) | |
| Prepaid expenses and other current assets | | (829,564) | | | (256,078) | |
| Accounts payable | | 138,776 | | | 46,368 | |
| Accrued expenses | | 3,776,116 | | | (26,090) | |
| Contract liabilities | | (721,725) | | | 756,282 | |
| Deferred revenue | | (171,674) | | | (20,487) | |
| Stock based compensation liabilities | | (185,516) | | | (399,193) | |
| Operating lease liabilities | | (488,505) | | | (681,838) | |
| Net cash provided by operating activities | | 4,479,757 | | | 2,879,417 | |
| Cash Flows From Investing Activities | | | | |
| Purchases of property and equipment | | (852,768) | | | (2,000,214) | |
| Capitalized pre-production | | (1,835,720) | | | (3,640,272) | |
| Net cash used in investing activities | | (2,688,488) | | | (5,640,486) | |
| Cash Flows From Financing Activities | | | | |
| Principal payments on finance lease liability | | (9,830) | | | — | |
| Net cash used in financing activities | | (9,830) | | | — | |
| Net change in cash and cash equivalents | | 1,781,439 | | | (2,761,069) | |
Cash and Cash Equivalents, Beginning | | 3,030,195 | | | 5,791,264 | |
Cash and Cash Equivalents, Ending | | $ | 4,811,634 | | | $ | 3,030,195 | |
Supplemental Disclosure of Cash Flow Information | | | | |
| Cash paid for income taxes | | $ | 1,150,000 | | | $ | 1,192,895 | |
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
1.Business Description
Innovative Signal Analysis, Inc. (the Company), was organized as a Texas Corporation on September 16, 1996, and is headquartered in Richardson, Texas. The Company specializes in real-time signal and image processing systems, primarily serving the government and defense sectors. The Company provides advanced RF signal processing solutions, including commercial off-the-shelf and custom FPGA products, real-time software and high-performance computing systems. Notable products include the Wide Area Video Surveillance System and the Ultra Wideband Tactical Signal Processor, which support mission-critical applications. The Company's multidisciplinary team of engineers and analysts handles all phases of system development, from design and integration to operations and maintenance, reinforcing the Company's reputation for innovation and excellence in signal processing.
2.Summary of Significant Accounting Policies
Basis of Presentation
The accompanying financial statements of the Company have been prepared on the accrual basis of accounting in conformity with accounting principles generally accepted in the United States of America (GAAP).
Use of Estimates
The preparation of financial statements in accordance with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and revenues and expenses during the reporting period. Actual results could differ from those estimates.
Reclassification
Certain reclassifications have been made to the prior year financial statements to conform to the current year presentation. These reclassifications have no effect on the reported net loss.
Recently Adopted Accounting Principles
During December 2023, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2023-09, Income Taxes (Topic 740): Improvements to Income Tax Disclosures. ASU No. 2023-09 enhances the transparency and decision usefulness of income tax disclosures. The amendments in this ASU require consistent categories and greater disaggregation of information in the rate reconciliation and income taxes paid disaggregated by jurisdiction. ASU No. 2023-09 is effective for fiscal years beginning after December 15, 2025. Early adoption is permitted. The amendments in this ASU should be applied on a prospective basis. Retrospective application is permitted. The Company does not believe that the adoption of ASU No. 2023-09 will have a material effect on its results of operations, financial position and cash flows.
Cash and Cash Equivalents
The Company considers all highly liquid instruments with original maturities of three months or less to be cash equivalents. The Company maintains cash balances in bank accounts that may, at times, exceed federally insured limits. Management periodically assesses the financial condition of these institutions for the purpose of assessing credit risk. The Company has not experienced any losses and believes it is not exposed to any significant credit risk on cash and cash equivalents.
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
Accounts Receivable
Accounts receivable represent customer obligations due and are stated at the amount the Company expects to collect. The carrying amount of accounts receivable is reduced by an allowance for credit losses that reflects management's best estimate of amounts that will not be collected. Management considers the following factors when determining the collectability of specific customer accounts: customer credit-worthiness, past transaction history with the customer, current economic industry trends and changes in customer payment terms.
The Company recognizes an allowance for credit losses for trade and other receivables to present the net amount expected to be collected as of the balance sheet date. Such allowance is based on the credit losses expected to arise over the life of the asset which includes consideration of past events and historical loss experience, current events and also future events based on our expectation as of the balance sheet date. Receivables are written off when the Company determined that such receivables are deemed uncollectible. The Company pools its receivables based on similar risk characteristics in estimating its expected credit losses. In situations where a receivable does not share the same risk characteristics with other receivables, the Company measures those receivables individually. The Company also continuously evaluates such pooling decisions and adjusts as needed from period to period as risk characteristics change.
The Company utilizes the loss rate method in determining its lifetime expected credit losses on its receivables. This method is used for calculating an estimate of losses based primarily on the Company's historical loss experience. In determining its loss rates, the Company evaluates information related to its historical losses, adjusted for current conditions and further adjusted for the period of time that can be reasonably forecasted. Qualitative and quantitative adjustments related to current conditions and the reasonable and supportable forecast period consider all the following: past due receivables, the customer creditworthiness, changes in the terms of receivables and legal and regulatory requirements on the level of estimated credit losses in the existing receivables. For receivables that are not expected to be collected within the normal business cycle, the Company considers current and forecasted direction of the economic and business environment. Such forecasted information includes: GDP growth, unemployment rates and interest rates amongst others. Based on the loss rate method, no allowance for credit losses was considered necessary at September 30, 2025 and December 31, 2024.
In accordance with disclosure requirements under Accounting Standard Codification (ASC) Topic 606, Revenue From Contracts With Customers, accounts receivable at January 1, 2024 was $4,997,038.
Inventory
Inventory is carried at the lower of cost or net realizable value. Cost is determined using an average costing methodology, which approximates costs under the first-in, first-out (FIFO) method. The Company purchases certain direct materials that are held as inventory until it is allocated to an active contract and recognizes a related contract costs with an offset to inventory. Management evaluates all inventories and estimates a reserve for excess or obsolete inventories based on the best facts available. An allowance for inventory was recorded for $770,816 at both September 30, 2025 and December 31, 2024, respectively. Inventory at September 30, 2025 and December 31, 2024 was $3,617,832 and $2,694,313 respectively, net of the allowance.
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
Property and Equipment
Property and equipment are stated at cost. Depreciation is computed using the straight-line method over the useful lives of the assets as shown below.
| | | | | |
| Useful Lives |
Computer equipment | 3-7 years |
Furniture and fixtures | 5-7 years |
Equipment | 5-7 years |
Leasehold improvements | Lesser of lease or useful life |
Additions and major repairs or replacements of property and equipment, which increase the life of an asset, are capitalized over the asset's estimated remaining useful life. Maintenance, repairs and minor replacements are charged to expense as incurred. Cost and the related accumulated depreciation on assets retired or otherwise disposed of are removed from the accounts, and related gains or losses are included in operating income or expense, respectively.
Long-Lived Assets
In accordance with ASC No. 360-10, Accounting for the Impairment or Disposal of Long-Lived Assets, the Company periodically reviews the carrying value of its long-lived assets, such as property and equipment and other assets subject to amortization, to test whether current events or circumstances indicate that such carrying value may not be recoverable. If the tests indicate that the carrying value of the asset is greater than the expected cash flows to be generated by such asset, then an impairment adjustment is recognized for the excess of the carrying value over fair value. No impairment was recognized during the period from January 1, 2025 to September 30, 2025 and the year ended December 31, 2024.
Capitalized Pre-Production
The Company follows ASC No. 985-20, Costs of Software to be Sold, Leased, or Marketed in accounting for pre-production costs related to products intended for sale. Direct labor and related costs incurred between the establishment of technological feasibility and the date the product is ready for sale are capitalized. All other development costs are expensed as incurred. Capitalized pre-production costs are amortized on a straight-line basis over their estimated useful life, generally three years, beginning when the product is first available for sale. Amortization expense for the period from January 1, 2025 to September 30, 2025 and the year ended December 31, 2024 was $0 and $568,956, respectively.
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
Revenue Recognition
The Company recognizes revenue in accordance with ASC 606, Revenue from Contracts with Customers. Revenues are derived primarily from long-term contracts with U.S. government agencies and prime contractors to provide engineering services, systems integration and mission support. Contracts are executed under Federal Acquisition Regulations and include cost-plus-award-fee, cost-plus-fixed-fee, firm-fixed-price, time-and-materials and cost-reimbursement arrangements. Performance obligations generally consist of integrated engineering services that are accounted for as a single distinct obligation. Transaction prices include fixed fees, reimbursable costs and variable consideration such as award fees, which are estimated and recognized ratably over the related contract. Substantially all revenue is recognized over time as services are performed because customers receive and consume benefits simultaneously, work is performed under customer control and the Company has an enforceable right to payment for work completed. Cost-plus and fixed-fee contracts are recognized using a cost-to-cost percentage-of-completion method; award fees are recognized based on estimated achievement; firm-fixed-price and level-of-effort contracts are recognized using input measures such as labor hours; time-and-materials contracts are recognized under the "right-to-invoice" expedient; and cost-reimbursement contracts are recognized as costs are incurred. Incremental costs of obtaining contracts are immaterial. Costs to fulfill contracts are capitalized when directly related and expected to be recovered; otherwise, they are expensed as incurred. The Company applies practical expedients permitted under ASC 606, including the right-to-invoice method for certain contracts and exemption from disclosure of unsatisfied performance obligations for contracts with an expected duration of one year or less.
The following table disaggregates revenue for the period from January 1, 2025 to September 30, 2025 and the year ended December 31, 2024:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Contract revenue | $ | 45,896,414 | | | $ | 50,553,614 | |
Commercial/Product revenue | 502,913 | | | 593,314 | |
Product services revenue | 32,800 | | | 476,378 | |
Warranty and other revenue | 239,458 | | | 172,518 | |
Total | $ | 46,671,585 | | | $ | 51,795,824 | |
Contract Estimates and Modifications
Due to the nature of the work required to be performed on the Company's performance obligations, the estimation of total revenue and cost at completion is complex, subject to many variables and requires significant judgment. As a significant change in one or more of these estimates could affect the profitability of the Company's contracts, management routinely reviews and updates contract-related estimates through a disciplined project review process in which management reviews the progress and execution of each performance obligation and the related estimated costs to complete. As part of this process, management reviews information including, but not limited to, outstanding contract matters, progress towards completion, construction schedule and the associated changes in estimates of revenues and costs. Management must make assumptions and estimates regarding the complexity of the work to be performed, the availability and cost of materials, the performance of subcontractors and the availability and timing of funding from the customer, along with other risks inherent in performing services under all contracts where the Company recognizes revenue over-time using the cost-to-cost input method.
The Company recognizes changes in contract estimates on a cumulative catch-up basis in the period in which the changes are identified. Such changes in contract estimates can result in the recognition of revenue in a current period for performance obligations which were satisfied or partially satisfied in a prior period. Changes in contract estimates may also result in the reversal of previously recognized revenue if
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
the current estimate differs from the previous estimate. If at any time the estimate of contract profitability indicates an anticipated loss on the contract, the total loss is recognized in the period it is identified.
Certain contracts entitle the Company to receive variable consideration such as award fees. The Company estimates anticipated award fees under the expected value method, which provides the best estimate of the amount of variable consideration the Company expects to recognize from the contract.
Contracts are often modified to account for changes in contract specifications and requirements. Most of the Company's contract modifications are for goods or services that are not distinct from existing contracts due to the significant integration provided in the context of the contract and are accounted for as if they were part of the original contract. The effect of a contract modification on the transaction price and the measure of progress for the performance obligation to which it relates, is recognized as an adjustment to revenue (either as an increase in or a reduction of revenue) on a cumulative catch-up basis. The Company accounts for contract modifications as separate contracts when the modification results in the promise to deliver additional goods or services that are distinct and the increase in price of the contract is for the same amount as the stand-alone selling price of the additional goods or services included in the modification.
Contract Assets and Contract Liabilities
Contract assets represent costs and estimated earnings in excess of billings on uncompleted contracts. Contract liabilities consist of billings in excess of costs and estimated earnings on uncompleted contracts. The Company anticipates that substantially all such amounts will be earned within one year. Contract assets and liabilities are reported on a contract-by-contract basis at the end of each reporting period. In accordance with disclosure requirements under ASC Topic 606, Revenue From Contracts With Customers, the opening balance of contract assets and contract liabilities at January 1, 2024 was $1,667,695 and $430,122, respectively.
Stock-Based Compensation
The Company grants share-based awards in the form of stock bonuses, which are fully vested at the grant date. These awards are classified as liabilities under ASC 718, Share based Compensation, due to repurchase features that may result in settlement at an amount other than fair value.
Fair Value Measurements
FASB ASC 820, Fair Value Measurements and Disclosures, defines fair value as the price that would be received to sell an asset, or paid to transfer a liability, in the principal or most advantageous market in an orderly transaction between market participants on the measurement date. The fair value standard also establishes a three-level hierarchy, which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. The valuation hierarchy is based upon the transparency of inputs to the valuation of an asset or liability on the measurement date. The three levels are defined as follows:
Level 1 - Quoted prices are available in active markets for identical instruments as of the reporting date. The type of instruments included in Level 1 included listed equities and listed derivatives.
Level 2 - Pricing inputs are other than quoted prices in active markets, which are either directly or indirectly observable as of the reporting date, and fair value is determined through the use of models or other valuation methodologies. Instruments which are generally included in this category included corporate bonds and loans, less liquid and restricted equity securities and certain over-the-counter derivatives.
Level 3 - Pricing inputs are unobservable for the instrument and includes situations where there is little, if any, market activity for the instrument. The inputs into the determination of fair value
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
require significant management judgement or estimation. Instruments that are included in this category generally include general and limited partnership interests in corporate private equity and real estate funds, mezzanine funds, funds of hedge funds, distressed debt and noninvestment grade residual interests in securitizations and collateralized debt obligations.
The fair value of the stock based compensation awards were based on Level 3 inputs.
Income Taxes
The Company records deferred taxes using the liability method. Deferred taxes and liabilities are based on the estimated future tax effects of differences between the financial statement basis and tax basis of assets and liabilities given the provisions of enacted tax law.
The Company records a valuation allowance to reduce its deferred income tax assets to the amount that is believed to be realized. Management considers historical earnings, future taxable income and ongoing prudent and feasible tax planning strategies in assessing the need for a valuation allowance. Management is continuously assessing the ability to realize deferred tax assets. Management has not recorded a valuation allowance against deferred tax assets at September 30, 2025 and December 31, 2024.
Management evaluates uncertain tax positions with the presumption of audit detection and applies a "more likely than not" standard to evaluate the recognition of tax benefits or positions. The Company has not recognized any penalty, interest or tax impact related to uncertain tax positions.
Leases
At lease inception, leases are classified as either finance leases or operating leases with the associated right-of-use asset and lease liability measured at the net present value of future lease payments. Operating leases are expensed on a straight-line basis as lease expense over the noncancelable lease term. Expenses for finance leases are comprised of the amortization of the right-of-use asset and interest expense recognized based on the effective interest method.
The Company has made the following accounting policy elections with regards to its lease accounting:
•The Company does not separate lease and nonlease components for all operating leases;
•When the rate implicit in the lease is not determinable, rather than use the Company's incremental borrowing rate, the Company uses a risk-free discount rate for the initial and subsequent measurement of lease liabilities for operating leases;
•The Company does not apply the recognition requirements to operating leases with an original term of 12 months or less, for which the Company is not likely to exercise a renewal option or purchase the asset at the end of the lease; rather, short-term leases will continue to be recorded on a straight-line basis over the lease term.
Additional required disclosures for leases are contained in Note 9.
Concentrations of Credit Risk
For the period from January 1, 2025 to September 30, 2025, one customer represented approximately 63% of revenue. For the year ended December 31, 2024, two customers represented approximately 57% of revenue. As of September 30, 2025, two customers represented approximately 74% of accounts receivable. As of December 31, 2024, three customers represented approximately 68% of accounts receivable. As of September 30, 2025, three vendors represented approximately 56% of accounts payable. As of December 31, 2024, four vendors represented approximately 71% of accounts
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
payable. The Company maintains no reserves for potential losses based on the nature of its clients and historical collection patterns.
3.Contract Billing Status
The status of contract billings is as follows for the period from January 1, 2025 to September 30, 2025 and the year ended December 31, 2024:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Costs incurred on contracts | $ | 132,802,769 | | | $ | 102,601,635 | |
Estimated earnings | 16,331,943 | | | 11,522,511 | |
Earned revenue | 149,134,712 | | | 114,124,146 | |
Less billings to date | (145,881,051) | | | (113,436,345) | |
Total | $ | 3,253,661 | | | $ | 687,801 | |
The below net amounts are presented at September 30, 2025 and December 31, 2024 under the following balance sheet captions:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Contract assets: | | | |
Costs and estimated earnings in excess of billings | $ | 3,718,340 | | | $ | 1,874,205 | |
Contract liabilities: | | | |
Billings in excess of costs and estimated earnings | (464,679) | | | (1,186,404) | |
Net | $ | 3,253,661 | | | $ | 687,801 | |
4.Inventory
Inventory consists of the following at September 30, 2025 and December 31, 2024:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Raw materials | $ | 3,726,346 | | | $ | 2,909,943 | |
Work in progress | 463,541 | | | 300,450 | |
Finished goods | 198,761 | | | 254,736 | |
| 4,388,648 | | | 3,465,129 | |
Less allowance for obsolete inventory | (770,816) | | | (770,816) | |
Inventory, net | $ | 3,617,832 | | | $ | 2,694,313 | |
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
5.Property and Equipment
Property and equipment at September 30, 2025 and December 31, 2024, was comprised of the following:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Computer equipment | $ | 3,120,877 | | | $ | 2,947,190 | |
Equipment | 4,210,645 | | | 3,938,074 | |
Furniture and fixtures | 976,418 | | | 888,863 | |
Leasehold improvements | 5,211,624 | | | 4,171,671 | |
Construction in progress | 168,325 | | | 888,569 | |
| 13,687,889 | | | 12,834,367 | |
Less accumulated depreciation | (7,082,023) | | | (6,110,353) | |
Total | $ | 6,605,866 | | | $ | 6,724,014 | |
Depreciation expense for the period from January 1, 2025 to September 30, 2025 was $971,670. Depreciation expense for the year ended December 31, 2024 was $886,561.
6.Accrued Liabilities
Accrued liabilities consisted of the following at September 30, 2025 and December 31 2024:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Accrued credit cards | $ | 71,044 | | | $ | 108,363 | |
Accrued payroll | 2,753,648 | | | 3,278 | |
Accrued sales taxes | 10,422 | | | 9,105 | |
Accrued bonus | 730,132 | | | – | |
Other accruals | 363,491 | | | 31,875 | |
Total | $ | 3,928,737 | | | $ | 152,621 | |
7.Stock Based Compensation
The Company grants share-based awards in the form of stock bonuses, which are fully vested upon issuance. Following an award holder's termination, the Company retains the right to repurchase the shares at the lower of the grant-date estimated value or a formula-based value determined at the repurchase date.
During the period from January 1, 2025 to September 30, 2025, the Company did not grant any additional shares of stock based compensation. The total stock-based compensation expense recognized for the period from January 1, 2025 to September 30, 2025 was $6,341,274, which includes the change in fair value of previously granted liability-classified awards from December 31, 2024 to September 30, 2025. During the year ended December 31, 2024, the Company granted 17,675 shares with a total estimated grant-date fair value of $731,922. The total stock-based compensation expense recognized for the year ended December 31, 2024 was $4,866,504, which includes the change in fair value of previously granted liability-classified awards from December 31, 2023 to December 31, 2024.
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
As of September 30, 2025, a total of 637,113 shares subject to liability classification remained outstanding, resulting in a liability recorded of $35,175,009. These awards were measured at fair value at September 30, 2025 based on a subsequent transaction involving these units. As of December 31, 2024, a total of 641,593 shares subject to liability classification remained outstanding, resulting in a liability recorded of $29,019,251. These awards were measured at fair value at December 31, 2024 using a valuation model that incorporates the following assumptions: risk-free interest rate of 4.2%, estimated term of 2.0 years and expected volatility of 40.5%.
8.Debt
On August 16, 2023, the Company entered into a line of credit agreement with a bank for an aggregate borrowing amount of $2,000,000. The line of credit provides short-term working capital on as needed basis and bears interest at the daily adjusting term SOFR rate plus 2.5%, with a floor of 2.5%. Under the line of credit agreement, interest is payable monthly with the principal due at maturity. The line is secured by any items deposited in the bank, any proceeds from the sale of deposited items and any collateral pledged through any separate bank agreements. At September 30, 2025 and December 31, 2024, the Company did not have a balance outstanding on the line of credit. The line of credit is set to mature in November 2026.
9.Commitments and Contingencies
Litigation
The Company is subject to legal proceedings and claims arising in the ordinary course of its business. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on the Company's financial position, results of operations or cash flows.
Leases
Right-of-use assets represent the Company's right to use an underlying asset for the lease term, while lease liabilities represent the Company's obligation to make lease payments arising from the lease. Right-of-use assets and lease liabilities are recognized at the commencement date of a lease based on the net present value of lease payments over the lease term.
Certain of the Company's leases include options to renew or terminate the lease. The exercise of lease renewal or early termination options is at the Company's sole discretion. The Company regularly evaluates the renewal and early termination options and when they are reasonably certain of exercise, the Company includes such options in the lease term.
In determining the discount rate used to measure the right-of-use assets and lease liabilities, the Company uses the rate implicit in the lease, or if not readily available, the Company uses a risk-free rate based on U.S. Treasury notes or bond rates for a similar term.
Right-of-use assets are assessed for impairment in accordance with the Company's long-lived asset policy. The Company reassesses lease classification and remeasures right-of-use assets and lease liabilities when a lease is modified and that modification is not accounted for as a separate new lease or upon certain other events that require reassessment.
The Company makes significant assumptions and judgments in evaluating its leases. In particular, the Company:
•Evaluates whether a contract contains a lease, by considering factors such as whether the Company obtained substantially all rights to control an identifiable underlying asset and whether the lessor has substantive substitution rights;
•Determines whether contracts contain embedded leases.
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
The Company does not have any material leasing transactions with related parties.
The following table summarizes the lease right-of-use assets and lease liabilities at September 30, 2025 and December 31, 2024:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Right-of-use assets: | | | |
Operating leases | $ | 9,883,926 | | | $ | 7,045,059 | |
Finance leases | 62,610 | | | – | |
Total right-of-use assets | $ | 9,946,536 | | | $ | 7,045,059 | |
Lease liabilities: | | | |
Current operating lease liabilities | $ | 857,081 | | | $ | 602,598 | |
Current finance lease liabilities | 53,534 | | | – | |
Long-term operating lease liabilities | 9,368,265 | | | 6,683,768 | |
Total lease liabilities | $ | 10,278,880 | | | $ | 7,286,366 | |
Below is a summary of expenses incurred pertaining to leases during the period from January 1, 2025 to September 30, 2025 and year ended December 31, 2024:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Finance lease expense: | | | |
Amortization of right-of-use assets | $ | 754 | | | $ | – | |
Interest on lease liabilities | 170 | | | – | |
Operating lease expense | 857,279 | | | 881,342 | |
Total lease expense | $ | 858,203 | | | $ | 881,342 | |
The following table presents supplemental information related to leases:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Weighted average remaining lease term (in years): | | | |
Operating leases | 9.57 | | | 10.10 | |
Finance leases | 0.42 | | | – | |
Weighted average discount rate: | | | |
Operating leases | 4.41 | % | | 4.05 | % |
Finance leases | 3.82 | % | | – | % |
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
The table below summarizes the Company's scheduled future minimum lease payments for years ending after September 30, 2025:
| | | | | | | | | | | |
| Operating Leases | | Finance Leases |
Years ending September 30: | | | |
2026 | $ | 1,287,308 | | | $ | 53,900 | |
2027 | 1,197,649 | | | – | |
2028 | 1,193,525 | | | – | |
2029 | 1,235,298 | | | – | |
2030 | 1,278,533 | | | – | |
Thereafter | 6,464,826 | | | – | |
Total lease payments | 12,657,139 | | | 53,900 | |
Less present value discount | (2,431,793) | | | (366) | |
Total lease liabilities | 10,225,346 | | | 53,534 | |
Less current portion | (857,081) | | | (53,534) | |
Long-term lease liabilities | $ | 9,368,265 | | | $ | – | |
The following table includes supplemental cash flow and noncash information related to the leases for the period from January 1, 2025 to September 30, 2025 and year ended December 31, 2024:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Cash paid for amounts included in the measurement of lease liabilities: | | | |
Operating cash flows from operating leases | $ | 488,505 | | | $ | 848,878 | |
Operating cash flows from finance leases | 9,830 | | | – | |
Right-of-use assets obtained in exchange for lease liabilities: |
| |
|
Operating leases | 3,427,485 | | | 3,013,801 | |
Finance leases | 65,634 | | | – | |
10.401(k) Plan
The Company sponsors a defined contribution 401(k) plan covering eligible employees. Participants may contribute a portion of their compensation, subject to IRS limits. The Company makes a safe harbor contribution equal to 4% of eligible compensation, which is fully vested when made. The Company made safe harbor contributions to the Plan of $1,063,424 and $1,239,604 for the period from January 1, 2025 to September 30, 2025 and the year ended December 31, 2024, respectively.
11.Income Taxes
The provision for income tax expense in the accompanying statements of operations consists of the following for the period from January 1, 2025 to September 30, 2025 and the year ended December 31, 2024:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Current, federal expense | $ | 706,745 | | | $ | 983,514 | |
Current, state expense | 92,683 | | | 125,512 | |
Deferred, federal expense (benefit) | 206,525 | | | (24,678) | |
Total income tax expense | $ | 1,005,953 | | | $ | 1,084,348 | |
| | |
Innovative Signal Analysis, Inc. |
Notes to Financial Statements September 30, 2025 and December 31, 2024 |
The Company's income tax expense differs from the expense calculated at the U.S. federal statutory tax rate of 21.00% for the period from January 1, 2025 to September 30, 2025 is as follows:
| | | | | | | | | | | |
| Amount | | Rate |
Income tax expense | $ | (387,039) | | | (21.00) | % |
State income tax expense | 76,895 | | | 4.17 | |
Permanent differences | 1,324,153 | | | 70.65 | |
Other | (8,056) | | | (0.45) | |
Effective tax | $ | 1,005,953 | | | 53.37 | % |
The Company's income tax expense differs from the expense calculated at the U.S. federal statutory tax rate of 21.00% for the year ended December 31, 2024 is as follows:
| | | | | | | | | | | |
| Amount | | Rate |
Income tax expense | $ | 35,965 | | | 21.00 | % |
State income tax expense | 98,602 | | | 57.84 | |
Permanent differences | 958,012 | | | 559.38 | |
Other | (8,231) | | | (4.81) | |
Effective tax | $ | 1,084,348 | | | 633.41 | % |
The tax effects of temporary differences that give rise to significant portions of the deferred taxes at September 30, 2025 and December 31, 2024 are as follows:
| | | | | | | | | | | |
| September 30,
2025 | | December 31,
2024 |
Deferred tax assets (liabilities) | | | |
Intangible assets | $ | (27,769) | | | $ | 130,186 | |
263A inventory | 726,078 | | | 782,512 | |
Accrued expenses | 59,361 | | | 81,839 | |
Inventory Reserve | 164,916 | | | – | |
Lease liabilities | 2,187,713 | | | 1,558,917 | |
Property and equipment | (1,254,108) | | | (1,098,113) | |
Right-of-use assets | (2,114,665) | | | (1,507,290) | |
Deferred tax liability, net | $ | (258,474) | | | $ | (51,949) | |
12.Subsequent Events
In accordance with FASB ASC 855, Subsequent Events, the Company evaluated events and transactions that occurred after September 30, 2025, the balance sheet date, through April ___, the date the financial statements were available to be issued, and determined there were no such events or transactions which would impact the financial statements as of September 30, 2025, except as follows:
On December 18, 2025, the Company was acquired by a third-party purchaser, Hawkeye 360, Inc. Pursuant to the Agreement and Plan of Merger (the Merger Agreement), Hawkeye 360, Inc. completed the acquisition of the Company through a statutory merger involving Forrestal Merger Sub, Inc. (the Merger Sub), a wholly owned subsidiary of Hawkeye 360, Inc. Under the terms of the merger, Merger Sub was merged with and into the Company. At the effective time of the merger, Merger Sub ceased to exist as a separate entity, and the Company continued as the surviving corporation under Texas law. As a result, the Company became a wholly owned subsidiary of Hawkeye 360, Inc., with the acquisition of 100% equity interest in the Company completed for a fair value consideration of $166.5 million.
Shares
HawkEye 360, Inc.
Common Stock
PRELIMINARY PROSPECTUS
| | | | | | | | |
Goldman Sachs & Co. LLC* | | Morgan Stanley* |
*(listed in alphabetical order) |
| | | | | | | | |
RBC Capital Markets | Jefferies | BofA Securities |
Baird | Raymond James | William Blair |
Co-Manager |
Drexel Hamilton |
Through and including (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 is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table indicates the expenses to be incurred in connection with the offering described in this registration statement, other than underwriting discounts and commissions, all of which will be paid by us. All amounts are estimated except the Securities and Exchange Commission (the “SEC”) registration fee, the Financial Industry Regulatory Authority, Inc. (the “FINRA”) filing fee and the New York Stock Exchange initial listing fee.
| | | | | | | | | | | |
| | Amount |
SEC registration fee | | $ | * |
FINRA filing fee | | | * |
New York Stock Exchange listing fee | | | * |
Accountants’ fees and expenses | | | * |
Legal fees and expenses | | | * |
Transfer agent’s fees and expenses | | | * |
Printing and engraving expenses | | | * |
Miscellaneous | | | * |
Total expenses | | $ | * |
_______________
*To be provided by amendment
Item 14. Indemnification of Directors and Officers.
We are incorporated under the laws of the State of Delaware. Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions, or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit.
Section 145 of the DGCL provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlements actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he is or is threatened to be made a party by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
As permitted by the DGCL, our amended and restated certificate of incorporation and bylaws to be in effect upon the closing of this offering will provide that: (i) we are required to indemnify our directors to the fullest extent permitted by the DGCL; (ii) we may, in our discretion, indemnify our officers, employees, and other agents as set forth in the DGCL; (iii) we are required, upon satisfaction of certain conditions, to
advance all expenses incurred by our directors in connection with certain legal proceedings; (iv) the rights conferred in the bylaws are not exclusive; and (v) we are authorized to enter into indemnification agreements with our directors, officers, employees, and agents.
In connection with this offering, we expect to enter into indemnification agreements with each of our directors and executive officers that require us to indemnify them against expenses, judgments, fines, settlements, and other amounts that any such person becomes legally obligated to pay (including with respect to a derivative action) in connection with any proceeding, whether actual or threatened, to which such person may be made a party by reason of the fact that such person is or was a director or officer of us or any of our affiliates, provided such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, our best interests. The indemnification agreements will also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. At present, no litigation or proceeding is pending that involves any of our directors or officers regarding which indemnification is sought, nor are we aware of any threatened litigation that may result in claims for indemnification.
We maintain a directors’ and officers’ liability insurance policy. The policy insures directors and officers against unindemnified losses arising from certain wrongful acts in their capacities as directors and officers and reimburses us for those losses for which we have lawfully indemnified the directors and officers. The policy contains various exclusions.
In addition, the underwriting agreement filed as Exhibit 1.1 to this registration statement provides for indemnification by the underwriters of us and our officers and directors for certain liabilities arising under the Securities Act, or otherwise. Our amended and restated investors’ rights agreement with certain investors also provides for cross-indemnification in connection with the registration of our common stock on behalf of such investors.
Item 15. Recent Sales of Unregistered Securities.
The following list sets forth information regarding all unregistered securities sold by us since January 1, 2023 through the date of the prospectus that forms a part of this registration statement.
Issuances of Preferred Stock and Warrants
In July 2023, we issued 5,190,285 shares of Series D-1 Preferred Stock to certain investors at a purchase price of $11.1747 per share for aggregate consideration of $58.0 million.
In September 2023, we issued 894,876 shares of Series D-1 Preferred Stock to certain investors at a purchase price of $11.1747 per share for aggregate consideration of $10.0 million.
In connection with the issuance and sale of our Series D-1 Preferred Stock, we issued to certain investors, warrants to purchase an aggregate of 2,789,106 shares, including (i) warrants to purchase 295,690 shares of our common stock with an exercise price per share equal to $11.1747, and (ii) warrants to purchase 2,493,416 shares of our common stock with an exercise price per share equal to $0.01.
In March 2024, we issued warrants to Silicon Valley Bank to purchase 43,343 shares of our common stock with an exercise price per share equal to $2.31.
In December 2025, in connection with the 2025 Mezzanine Loan and Security Agreement, we issued warrants to Silicon Valley Bank, a division of First-Citizens Bank & Trust Company, and the other lenders party thereto to purchase an aggregate of 173,591 shares of our common stock with an exercise price per share equal to $4.65, subject to adjustments.
In December 2025, we issued and sold an aggregate of 4,242,048 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate consideration of $80.0 million.
In January 2026, we issued and sold an aggregate of 756,754 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate consideration of $14.3 million.
In February 2026, we issued and sold an aggregate of 185,543 shares of Series E Preferred Stock to certain investors at the Series E Per Share Price for aggregate consideration of $3.5 million.
Issuances Pursuant to our Equity Plans
From January 1, 2023 through the date of this registration statement, we granted options under the 2015 Stock Incentive Plan (the “2015 Plan”) to purchase an aggregate of shares of common stock, at a weighted-average exercise price of $ per share, to our employees, directors, and consultants. Of these, shares have been issued upon the exercise of options for aggregate consideration of $ and options for the purchase of shares of common stock have been forfeited, expired or canceled.
From January 1, 2023 through the date of this registration statement, we granted restricted stock units (“RSUs”) under the 2015 Plan for an aggregate of shares of our common stock to our employees.
None of the foregoing transactions involved any underwriters, underwriting discounts or commissions, or any public offering. Unless otherwise specified above, we believe these transactions were exempt from registration under the Securities Act in reliance on Section 4(a)(2) of the Securities Act (and Regulation D or Regulation S promulgated thereunder) or Rule 701 promulgated under Section 3(b) of the Securities Act as transactions by an issuer not involving any public offering or under benefit plans and contracts relating to compensation as provided under Rule 701. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed on the share certificates issued in these transactions. All recipients had adequate access, through their relationships with us, to information about us. The sales of these securities were made without any general solicitation or advertising.
Item 16. Exhibits and Financial Statement Schedules.
(a)Exhibits.
The exhibits listed below are filed as part of this registration statement.
| | | | | | | | |
Exhibit Number | | Description of Exhibit |
| 1.1* | | Form of Underwriting Agreement |
| 2.1+# | | |
| 3.1 | | |
| 3.2 | | |
| 3.3 | | |
| 3.4 | | |
| 4.1 | | |
| 4.2 | | |
| 5.1* | | Opinion of Cooley LLP |
| | | | | | | | |
Exhibit Number | | Description of Exhibit |
| 10.1^ | | |
| 10.2* ^ | | 2026 Equity Incentive Plan and Forms of Stock Option Grant Notice, Stock Option Agreement, Notice of Exercise, Restricted Stock Unit Grant Notice and Restricted Stock Unit Award Agreement |
10.3^ | | |
10.4^ | | |
10.5^ | | |
10.6^ | | |
10.7^ | | |
10.8# | | |
10.9# | | |
10.10# | | |
| 10.11# | | |
| 10.12# | | |
10.13^ | | |
| 21.1 | | |
| 23.1 | | |
| 23.2 | | |
| 23.3* | | Consent of Cooley LLP (included in Exhibit 5.1) |
| 24.1 | | |
| 99.1 | | |
| 107 | | |
______________
*To be filed by amendment.
^ Indicates management contract or compensatory plan.
+Portions of this exhibit (indicated by asterisks) have been redacted in compliance with Regulation S-K Item 601(b)(2)(ii) because the Registrant has determined that the information is both not material and is the type that the Registrant treats as private or confidential.
#Certain schedules and exhibits to this exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request.
(b)Financial Statement Schedules.
Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act 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 SEC such indemnification is against public policy as expressed in the Securities 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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1)For purposes of determining any liability under the Securities Act, 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 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, 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.
SIGNATURES
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 Herndon, Commonwealth of Virginia, on this 10th day of April, 2026.
| | | | | | | | |
| HAWKEYE 360, INC. |
| | |
| By: | /s/ John Serafini |
| | John Serafini |
| | President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints John Serafini and Craig Searle, and each of them, as his or her true and lawful agents, proxies, and attorneys-in-fact, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement together with all schedules and exhibits thereto and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and (iv) take any and all actions which may be necessary or appropriate to be done, as fully for all intents and purposes as he might or could do in person, hereby approving, ratifying and confirming all that such agent, proxy and attorney-in-fact or any of his substitutes may lawfully do or cause to be done by virtue thereof.
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/ John Serafini | | President, Chief Executive Officer and Director (Principal Executive Officer) | | April 10, 2026 |
John Serafini | | |
| | | | |
| /s/ Craig Searle | | Chief Financial Officer (Principal Financial and Accounting Officer) | | April 10, 2026 |
Craig Searle | | |
| | | | |
| /s/ Mark Spoto | | Chairman of the Board | | April 10, 2026 |
Mark Spoto | | |
| | | | |
| /s/ David G. DeWalt | | Director | | April 10, 2026 |
David G. DeWalt | | |
| | | | |
| /s/ Francis A. Finelli | | Director | | April 10, 2026 |
| Francis A. Finelli | | |
| /s/ Arthur Money | | Director | | April 10, 2026 |
Arthur Money | | |
| | | | |
| /s/ Jonathan Shames | | Director | | April 10, 2026 |
| Jonathan Shames | | |
| | | | |
| /s/ James Winnefeld | | Director | | April 10, 2026 |
James “Sandy” Winnefeld | | |
CERTAIN INFORMATION HAS BEEN EXCLUDED FROM THIS AGREEMENT (INDICATED BY “[***]”) BECAUSE SUCH INFORMATION IS BOTH (A) NOT MATERIAL AND (B) THE TYPE THAT THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS AS PRIVATE OR CONFIDENTIAL.
AGREEMENT AND PLAN OF MERGER
by and among
HAWKEYE 360, INC.
FORRESTAL MERGER SUB, INC.
INNOVATIVE SIGNAL ANALYSIS, INC.
and
THE SHAREHOLDER REPRESENTATIVE
Dated as of December 18, 2025
| | | | | | | | |
ARTICLE I THE MERGER | 6 |
| | |
| 1.1 | The Merger | 6 |
| | |
| 1.2 | The Closing | 6 |
| | |
| 1.3 | Effective Date and Time | 6 |
| | |
| 1.4 | Certificate of Formation and Bylaws of the Surviving Corporation | 6 |
| | |
| 1.5 | Directors and Officers | 6 |
| | |
| 1.6 | Effect of the Merger on the Securities of Constituent Corporations. | 6 |
| | |
| 1.7 | Escrow. | 9 |
| | |
| 1.8 | Adjustments to Merger Consideration. | 10 |
| | |
| 1.9 | Tax Withholding | 13 |
| | |
| 1.10 | Shareholder Representative | 13 |
| | |
| 1.11 | Earnout Payments | 14 |
| | |
| 1.12 | Deferred Payment | 16 |
| | |
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 17 |
| | |
| 2.1 | Organization. | 17 |
| | |
| 2.2 | Authority | 17 |
| | |
| 2.3 | Capitalization. | 18 |
| | |
| 2.4 | No Approvals; No Conflicts | 18 |
| | |
| 2.5 | Financial Statements. | 19 |
| | |
| 2.6 | Absence of Certain Changes or Events | 19 |
| | |
| 2.7 | Receivables, Payables and Deferred Revenue | 22 |
| | |
| 2.8 | Property. | 23 |
| | |
| 2.9 | Labor and Employment Matters. | 24 |
| | |
| 2.10 | Employee Benefit Plans. | 25 |
| | |
| 2.11 | Intellectual Property. | 28 |
| | |
| 2.12 | Contracts. | 36 |
| | |
| 2.13 | Claims and Orders. | 37 |
| | |
| 2.14 | Licenses; Compliance with Laws. | 38 |
| | |
| 2.15 | Taxes. | 37 |
| | |
| 2.16 | Insider Interests | 42 |
| | |
| 2.17 | Insurance. | 42 |
| | |
| 2.18 | Brokers or Finders | 42 |
| | |
| 2.19 | Bank Accounts | 41 |
| | |
TABLE OF CONTENTS
(CONTINUED)
Page
| | | | | | | | |
| 2.20 | Customers and Suppliers. | 41 |
| | |
| 2.21 | Government Contracts | 42 |
| | |
| 2.22 | Outbound Investment Security Program | 45 |
| | |
| 2.23 | Full Disclosure | 45 |
| | |
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 45 |
| | |
| 3.1 | Organization and Good Standing | 45 |
| | |
| 3.2 | Authority and Enforceability | 46 |
| | |
| 3.3 | No Approvals; No Conflicts | 46 |
| | |
| 3.4 | Non-Reliance | 46 |
| | |
ARTICLE IV COVENANTS | 46 |
| | |
| 4.1 | Covenants of the Company Before Closing | 46 |
| | |
| 4.2 | Access to Information | 46 |
| | |
| 4.3 | Confidentiality | 47 |
| | |
| 4.4 | Regulatory Approval. | 47 |
| | |
| 4.5 | Tax Matters. | 48 |
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| 4.6 | Shareholder Notice | 50 |
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| 4.7 | [Reserved] | 50 |
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| 4.8 | D&O and E&O Insurance | 50 |
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| 4.9 | Retention Plan | 50 |
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| 4.10 | Lease Guaranties | 51 |
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ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB TO THE CLOSING | 51 |
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| 5.1 | Material Adverse Effect | 51 |
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| 5.2 | Governmental Approvals and Consents | 51 |
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| 5.3 | Compliance with Laws | 51 |
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| 5.4 | Regulatory Approvals | 51 |
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| 5.5 | Company Deliverables | 51 |
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ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY TO THE CLOSING | 53 |
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| 6.1 | Escrow Agreement | 53 |
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| 6.2 | Contribution Agreements | 53 |
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| 6.3 | Certificate of Merger | 53 |
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| 6.4 | Secretary’s Certificate | 53 |
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| 6.5 | Good Standing Certificate | 53 |
TABLE OF CONTENTS
(CONTINUED)
Page
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| 6.6 | Restrictive Covenant Agreements | 53 |
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| 6.7 | Paying Agent Agreement | 53 |
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| 6.8 | Transaction Insurance Policy. Purchaser has obtained the Transaction Insurance Policy. | 53 |
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ARTICLE VII SURVIVAL AND INDEMNIFICATION | 53 |
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| 7.1 | Survival | 53 |
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| 7.2 | Indemnification by the Indemnifying Parties | 54 |
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| 7.3 | Third Party Claims | 54 |
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| 7.4 | Procedure for Indemnification. | 55 |
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| 7.5 | Limitations | 55 |
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| 7.6 | Certain Additional Indemnification Matters | 56 |
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| 7.7 | Character of Indemnity Payments | 57 |
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ARTICLE VIII TERMINATION | 57 |
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| 8.1 | Termination | 57 |
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| 8.2 | Effect of Termination | 57 |
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ARTICLE IX GENERAL | 57 |
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| 9.1 | Expenses | 57 |
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| 9.2 | Notices | 57 |
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| 9.3 | Severability | 59 |
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| 9.4 | Entire Agreement | 59 |
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| 9.5 | Assignment | 59 |
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| 9.6 | Parties in Interest | 59 |
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| 9.7 | Governing Law; Jurisdiction; Waiver of Jury Trial | 59 |
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| 9.8 | Incorporation of Recitals | 59 |
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| 9.9 | Construction | 59 |
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| 9.10 | Counterparts | 61 |
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| 9.11 | Specific Performance | 61 |
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| 9.12 | Amendment | 61 |
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| 9.13 | Waiver | 61 |
TABLE OF CONTENTS
(CONTINUED)
| | | | | |
| Annexes: | |
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| Annex A | Definitions |
| Annex B | Example Net Working Capital Calculation |
| |
| Exhibits: | |
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| Exhibit A | Written Consent |
| Exhibit B | Escrow Agreement |
| Exhibit C | Required Consents |
| Exhibit D | Required Contracts |
| Exhibit E | Form of Release Agreement |
| Exhibit F | Form of Joinder Agreement |
| Exhibit G | Form of Letter of Transmittal |
| Exhibit H | Policy Excluded Matters |
| Exhibit I | Form of Contribution Agreement |
| |
| |
| Schedules: | |
| |
| Schedule I | Identified Shareholders |
| Schedule II | Exchanging Shareholders; Contributed Shares; Exchanged Shares |
| Schedule III | Restrictive Covenant Agreement Parties |
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this “Agreement”) is made and entered into as of December 18, 2025, by and among HawkEye 360, Inc., a Delaware corporation (“Parent”), Forrestal Merger Sub, Inc., a Texas corporation and wholly owned subsidiary of Parent (“Merger Sub”), Innovative Signal Analysis, Inc., a Texas corporation (the “Company”), and David Stevens, as the Shareholder Representative (the “Shareholder Representative” and together with Parent, Merger Sub, and the Company, the “Parties”). Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings indicated on Annex A.
WHEREAS, the board of directors of the Company (the “Board”) has unanimously (a) determined that this Agreement and the transactions contemplated by this Agreement, including the Merger, are fair to, and in the best interests of, the Shareholders, (b) approved and declared advisable the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and (c) resolved to recommend that the Shareholders approve the adoption of this Agreement and the consummation of the transactions contemplated hereby;
WHEREAS, the boards of directors of each of Parent and Merger Sub have approved and declared advisable the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the consummation of the Merger;
WHEREAS, simultaneously with the execution of this Agreement and as a material inducement to the willingness of Parent to enter into this Agreement, each of the Shareholders set forth on Schedule I shall have executed and delivered a Joinder Agreement to Parent;
WHEREAS, simultaneously with the execution of this Agreement and as a material inducement to the willingness of Parent to enter into this Agreement, Parent and each of the Shareholders listed on Schedule II (all such Persons, the “Exchanging Shareholders”) have executed a Contribution and Exchange Agreement in the form attached hereto as Exhibit I (the “Contribution Agreement”), pursuant to which the Exchanging Shareholders will contribute to Parent a portion of such Exchanging Shareholder’s shares of Common Stock as set forth on Schedule II (the “Contributed Shares”) in exchange for (i) an aggregate of 1,325,316 shares of Parent’s Series E Preferred Stock (the “Exchanged Shares”), and (ii) a right to receive from Parent a payment in cash in an amount equal to such Exchanging Shareholder’s Pro Rata Share of the Earnout Payment, the Total Deferred Payments, and any release of the Escrow Funds, in each case, that would have been payable in respect of the Contributed Shares if the Contributed Shares were acquired in the Merger instead of pursuant to the transactions contemplated by the Contribution Agreement (the payments described in this clause (ii), the “Residual Rights”), if any, which Contributed Shares shall have an aggregate value of $25,000,000 (the “Exchanged Amount”), all on terms and subject to the conditions set forth in the Contribution Agreement (such transactions, the “Contributions”); and
WHEREAS, simultaneously with the execution of this Agreement and as a material inducement to the willingness of Parent to enter into this Agreement, each person identified on Schedule III (the “Restrictive Covenant Agreement Parties”) shall have executed and delivered a Restrictive Covenant Agreement (each, a “Restrictive Covenant Agreement”).
NOW, THEREFORE, in consideration of the promises and the mutual agreements and covenants set forth herein, and intending to be legally bound, the Company, Parent, Merger Sub and the Shareholder Representative hereby agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions of this Agreement, (a) at the Effective Time, the separate existence of Merger Sub shall cease and Merger Sub shall be merged with and into the Company (the “Merger”; the Company as the surviving corporation after the Merger is sometimes referred to herein as the “Surviving Corporation”), and (b) from and after the Effective Time, the Merger shall have all the effects of a merger under the Texas Corporation Law and other applicable Laws. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities, and duties of the Surviving Corporation.
1.2 The Closing. Upon the terms and subject to the conditions of this Agreement, the closing of the Merger (the “Closing”) shall take place by remote electronic exchange of documents after the execution and delivery of this Agreement on the Business Day immediately following the satisfaction or waiver of the conditions precedent applicable to each party set forth in Article V, or at such other time and place as Parent and the Company may mutually agree in writing. The date on which the Closing occurs is referred to herein as the “Closing Date.”
1.3 Effective Date and Time. On the Closing Date and subject to the terms and conditions of this Agreement, the parties hereto shall cause the Merger to be consummated by filing with the Texas Secretary of State a Certificate of Merger (the “Certificate of Merger”) with respect to the Merger, duly executed and completed in accordance with the relevant provisions of the Texas Corporation Law, and shall make all other filings or recordings required under the Texas Corporation Law with respect to the Merger. The Merger shall become effective at the time when the Certificate of Merger has been duly filed with the Texas Secretary of State (the “Effective Time”).
1.4 Certificate of Formation and Bylaws of the Surviving Corporation. Unless otherwise specified by Parent prior to the Effective Time, at the Effective Time, the certificate of formation and bylaws of Merger Sub in effect immediately prior to the Effective Time shall be the certificate of formation and bylaws of the Surviving Corporation; provided, however, that the second sentence in Article I of the certificate of formation (formerly known as the Articles of Incorporation) shall be amended to read as follows: “The name of this corporation is Innovative Signal Analysis, Inc.”. Thereafter, the certificate of formation and bylaws of the Surviving Corporation may be amended in accordance with their respective terms and as provided by Law.
1.5 Directors and Officers. At the Effective Time, the directors and officers of the Company shall resign and the directors and officers of Merger Sub shall continue in office as the directors and officers of the Surviving Corporation, and such directors and officers shall hold office in accordance with and subject to the certificate of formation and bylaws of the Surviving Corporation.
1.6 Effect of the Merger on the Securities of Constituent Corporations.
(a) Treatment of Capital Stock. As of the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders thereof:
(i) All shares of Common Stock held by the Company as treasury shares shall be cancelled.
(ii) All shares Common Stock then held by Parent, Merger Sub or any other direct or indirect subsidiary of Parent shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor.
(iii) Subject to adjustments as set forth in Sections 1.6(b), 1.6(e), and 1.8, each issued and outstanding share of Common Stock, other than such shares that are cancelled pursuant to Section 1.6(a)(i) or Section 1.6(a)(ii) or Dissenting Shares as provided in Section 1.6(d), as of immediately prior to the Effective Time shall be converted into the right to receive from Parent, subject to all the terms and conditions set forth in this Agreement and delivery by such Shareholder of a duly executed Release Agreement in the form attached hereto as Exhibit E (by which the applicable shareholder provides, among other things, a release of claims and an acknowledgment of the appointment of the Shareholder Representative), any other applicable Exchange Documentation, (i) at the Closing, the Per Share Closing Merger Consideration, plus (ii) any cash disbursements required to be made, if any, under Section 1.6(b) and Section 1.8 from the Adjustment Escrow Fund with respect to such share of Common Stock to the former holder thereof (based on such holder’s Pro Rata Share of such disbursement), plus (iii) any cash disbursements required to be made, if any, under Section 1.6(b) and Article VII from the Indemnity Escrow Fund with respect to such share of Common Stock to the former holder thereof (based on such holder’s Pro Rata Share of such disbursement), plus (iv) the remaining Holdback Amount, if any, required to be made under Section 1.6(b), subject to Parent’s setoff rights against the Holdback Amount contained in Exhibit H, with respect to such share of Common Stock to the former holder thereof (based on such holder’s Pro Rata Share of such remaining amount), plus (v) any cash disbursements required to be made, if any, under Section 1.6(b) and Section 1.10 from the Expense Fund with respect to such share of Common Stock to the former holder thereof (based on such holder’s Pro Rata Share of such disbursement), plus (vi) any cash disbursements required to be made by the Paying Agent Agreement with respect to such share of Common Stock to the former holder thereof, if any, under Section 1.11, due to the Earnout Payment being earned (based on such holder’s Pro Rata Share of such disbursement), plus (vii) the Total Deferred Payments required to be made under Section 1.12 subject to Parent’s setoff rights contained in Exhibit H against the Deferred Payment Holdback Amount.
(iv) Each issued and outstanding share of capital stock of Merger Sub shall be converted into one share of common stock of the Surviving Corporation.
(b) Escrow Amounts, Expense Fund Deduction, and Holdback Amount. At the Closing, (i) the Escrow Amounts shall be deducted from the Per Share Closing Merger Consideration otherwise payable to the Indemnifying Parties at the Closing, and Parent shall deposit the Adjustment Escrow Amount with the Escrow Agent to provide Parent with a source of funds for satisfaction of any amounts owing to Parent resulting from any adjustment to the amount of the Merger Consideration pursuant to Section 1.8 and to the Indemnified Parties for any Damages for which they are entitled to be indemnified pursuant to Article VII, (ii) the amount of the Expense Fund shall be deducted from the Per Share Closing Merger Consideration otherwise payable to the Indemnifying Parties at the Closing and Parent shall deposit the Expense Fund with the Shareholder Representative pursuant to and in connection with Section 1.10, and (iii) the Holdback Amount (including, for the avoidance of doubt, the Deferred Payment Holdback Amount in accordance with Exhibit H, if applicable) shall be withheld by Parent for the purpose of satisfying the matters set forth on Exhibit H, and [***], will be paid by the Parent, in accordance with Exhibit H, to the Paying Agent for further distribution to the Shareholders, in accordance with each such Shareholder’s Pro Rata Share of such remaining amount.
(c) Consideration Spreadsheet. Schedule 1.6(c) to the Company Disclosure Schedule (the “Closing Consideration Spreadsheet”) sets forth (i) the number of shares of Common
Stock held by each Shareholder and whether such Shareholder is a current or former employee or service provider of the Company, (ii) each Indemnifying Party’s Pro Rata Share of the Escrow Funds, Expense Fund, Earnout Payment, Deferred Payment, and Holdback Amount (including the Deferred Payment Holdback Amount, assuming the maximum amount is held back), and (iii) the Per Share Closing Merger Consideration, and the aggregate amount of the Closing Merger Consideration to which each such Shareholder is entitled to at Closing.
(d) Dissenting Shares. Notwithstanding any other provisions of this Agreement to the contrary, any shares of Common Stock that are issued and outstanding immediately prior to the Effective Time and with respect to which the Shareholder thereof has properly demanded appraisal rights in accordance with Section 21.460 of the Texas Corporation Law, and who has not effectively withdrawn or lost such holder’s appraisal rights under Section 21.460 of the Texas Corporation Law (collectively, the “Dissenting Shares”), will not be converted into or represent the right to receive the payments set forth in Section 1.6(a), but such Shareholder will only be entitled to such rights as are provided by the Texas Corporation Law. Notwithstanding the provisions of this Section 1.6(d), if any holder of Dissenting Shares shall effectively withdraw or lose (through failure to perfect or otherwise) such holder’s appraisal rights under the Texas Corporation Law, then, as of the later of the Effective Time and the occurrence of such event, such holder’s shares will automatically be converted into and represent only the right to receive the consideration for Common Stock, as applicable, set forth in Section 1.6(a), without interest thereon, and subject to the escrow provisions set forth in Section 1.6(b) and Section 1.7 and the expense fund provisions in Section 1.10(c), upon compliance with the terms and conditions of Section 1.6(a), including the delivery by such Shareholder of the applicable Exchange Documentation. The Company shall: (i) give Parent prompt notice of: (A) any written demanded appraisal rights received by the Company prior to the Effective Time pursuant to the Section 21.460 of the Texas Corporation Law; (B) any withdrawal of any such demand; and (C) any other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to the Section 21.460 of the Texas Corporation Law; and (ii) allow Parent to direct all negotiations and proceedings with respect to any such demand, notice or instrument (to the extent reasonably practicable), and the Company shall not settle or compromise in any manner any demands for appraisal without the prior written consent of Parent.
(e) Exchange of Exchange Documentation and Payments.
(i) Simultaneously herewith, Parent and Shareholder Representative shall have entered into an agreement (the “Paying Agent Agreement”) with Western Alliance Bank (the “Paying Agent”), pursuant to which the Paying Agent will be designated to act as exchange and paying agent in the Merger.
(ii) On the Closing Date, Parent shall cause an amount equal to the Closing Merger Consideration to be deposited with the Paying Agent for payment to the Shareholders in accordance with the Closing Consideration Spreadsheet.
(iii) Upon receipt by the Paying Agent of the applicable Exchange Documentation, the applicable Shareholder shall be entitled to receive in exchange therefor the portion of the Closing Merger Consideration that such Shareholder has the right to receive pursuant to the provisions of Section 1.6, if any, and any certificate surrendered in connection with the delivery of the applicable Exchange Documentation (including a Release Agreement and Letter of Transmittal), shall forthwith be canceled; provided, however, that a portion of the Closing Merger Consideration shall be retained by Parent in accordance with the provisions of Section 1.6(b). If any certificates representing shares of Common Stock shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by
the Shareholder claiming such certificate to be lost, stolen or destroyed, in form reasonably satisfactory to Parent, Parent shall pay in exchange for such lost, stolen or destroyed certificate the portion of the Closing Merger Consideration that such Shareholder is entitled to receive pursuant to Section 1.6(a); provided, however, that Parent may, in its discretion and as a condition precedent to the issuance thereof, require such Shareholder to provide Parent with an indemnity agreement, in form and substance reasonably satisfactory to Parent, against any Claim that may be made against Parent with respect to the certificate alleged to have been lost, stolen or destroyed and a surety bond, reasonably satisfactory to Parent, to secure such indemnity obligation. No interest shall accrue on the Closing Merger Consideration. If the Closing Merger Consideration (or any portion thereof) is to be delivered to any Person other than the Person in whose name the certificate or certificates representing shares of Common Stock surrendered in exchange therefor is registered, it shall be a condition to such exchange that the Person requesting such exchange shall pay to Parent any transfer or other Taxes required by reason of the payment of the Closing Merger Consideration (or any portion thereof) to a Person other than the registered holder of the certificate or certificates so surrendered, or shall establish to the satisfaction of Parent that such Tax has been paid or is not applicable. Notwithstanding anything to the contrary herein, neither Parent nor any other party hereto shall be liable to a holder of shares of Common Stock for any Closing Merger Consideration delivered to a public official pursuant to applicable Law, including abandoned property, escheat and similar Laws.
(iv) The portion of the Closing Merger Consideration payable to any Shareholder set forth on the Closing Consideration Spreadsheet shall be paid by the Paying Agent to such holder by wire transfer (or, at Parent’s election, by check) within five (5) Business Days after the later of (i) the Effective Time and (ii) the date on which the Paying Agent receives such holder’s properly completed Exchange Documentation.
(v) Any cash made available to the Paying Agent and not exchanged for certificates representing shares of Common Stock and any other applicable Exchange Documentation within twelve (12) months after the Effective Time shall be redelivered or repaid by the Paying Agent to Parent. After such time, any Shareholder who has not theretofore delivered or surrendered such certificates or other applicable Exchange Documentation to the Paying Agent, subject to applicable Law, shall look as a general creditor only to Parent for payment of such holder’s portion of the Closing Merger Consideration.
(f) No Further Transfers. After the Effective Time, there shall be no transfers of any shares of Common Stock on the stock transfer books of the Company or the Surviving Corporation. If, after the Effective Time, certificates formerly representing shares of Common Stock are presented to the Surviving Corporation, they shall be forwarded to the Paying Agent and shall be canceled and exchanged in accordance with Section 1.6(e), subject, in the case of Dissenting Shares, to Section 1.6(d).
1.7 Escrow.
(a) Simultaneously herewith, Parent and the Shareholder Representative shall have entered into an Escrow Agreement with the Escrow Agent (the “Escrow Agreement”), pursuant to which Parent shall deposit with the Escrow Agent, (i) the Adjustment Escrow Amount, which deposit shall constitute an escrow fund in order to provide Parent with a source of funds for satisfaction of any amounts owing to Parent resulting from any adjustment to the amount of the Merger Consideration pursuant to Section 1.8 (the “Adjustment Escrow Fund”), and (ii) the Indemnity Escrow Amount, which deposit shall constitute an escrow fund in order to provide any Indemnified Party with a source of funds for satisfaction of any amounts owing from the Indemnifying Parties to any Indemnified Party resulting from
Damages required to be indemnified by the Indemnifying Parties under Article VII (the “Indemnity Escrow Fund” and together with the Adjustment Escrow Fund, the “Escrow Funds”).
(b) The Parties hereto agree that Parent is the owner of the Escrow Funds and that all interest on or other taxable income, if any, earned from the Escrow Funds pursuant to this Agreement and the Escrow Agreement shall be treated for Tax purposes as earned by Parent, regardless of whether such interest or other taxable income is distributed to Parent. The Escrow Agent shall pay to Parent out of the Escrow Funds, on or before the 10th day after the end of each calendar quarter and immediately before the final distribution from the Escrow Funds, a distribution equal to 28% of the amount of such taxable income treated for Tax purposes as earned by Parent.
(c) Distributions from the Escrow Fund (i) to the Paying Agent for further distribution to the Shareholders, or (ii) to Parent, as applicable, shall be made as provided in this Agreement and the Escrow Agreement.
1.8 Adjustments to Merger Consideration.
(a) At least one Business Day before the Closing Date, the Company shall deliver to Parent, a written certificate certified by the Chief Executive Officer or Chief Financial Officer of the Company (the “Estimated Closing Certificate”) setting forth:
(i) as of the Closing Calculation Time and reasonably satisfactory to Parent, the Company’s good faith estimate of (A) Cash on Hand (the “Estimated Cash on Hand”), (B) unpaid Transaction Costs (including all Transaction Costs of the Company expected to be incurred on or after the anticipated Closing Date) (the “Estimated Transaction Costs”), and (C) outstanding Debt of the Company (the “Estimated Debt”);
(ii) a consolidated balance sheet of the Company prepared in accordance with the Accounting Principles as of the Closing Calculation Time; and
(iii) the Company’s good faith calculation of Net Working Capital prepared in accordance with the Accounting Principles as of the Closing Calculation Time and each component thereof reasonably satisfactory to Parent (the “Estimated Net Working Capital”) and the amount of any Estimated Net Working Capital Surplus or Estimated Net Working Capital Deficiency, as the case may be.
(b) The Company shall have provided Parent and its Representatives reasonable access to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company relating to the preparation of the Estimated Closing Certificate and shall cause the personnel of the Company to cooperate with Parent in connection with its review of Estimated Cash on Hand, Estimated Transaction Costs, Estimated Debt and Estimated Net Working Capital. The Company shall have cooperated with Parent and its Representatives and considered Parent’s proposed changes to the Estimated Closing Certificate in good faith.
(c) Parent shall within ninety (90) days after the Closing Date, deliver to the Shareholder Representative a written statement (the “Reconciliation Statement”) showing Parent’s good faith calculation as of the Closing Calculation Time of: (i) the amount of (A) the Cash on Hand (the “Reconciled Cash on Hand”), (B) the unpaid Transaction Costs of the Company (including all Transaction Costs of the Company incurred and expected to be incurred after the anticipated Closing Date) (the “Reconciled Transaction Costs”) and (C) the amount of any outstanding Debt (the
“Reconciled Debt”); and (ii) Net Working Capital and each component thereof (the “Reconciled Net Working Capital”) and the amount of any Reconciled Net Working Capital Surplus or Reconciled Net Working Capital Deficiency, as the case may be. If requested, the Shareholder Representative shall be given timely access to all supporting work papers and, upon the Shareholder Representative’s reasonable request, any other materials used in preparation of the Reconciliation Statement, subject to the Shareholder Representative being bound by a confidentiality agreement acceptable to Parent.
(d) If the Shareholder Representative disputes the amounts presented in the Reconciliation Statement, then the Shareholder Representative may deliver to Parent written notice of such dispute within thirty (30) days of receipt of the Reconciliation Statement listing with reasonable specificity the Shareholder Representative’s points of disagreement with Parent’s calculation of any of the Reconciled Cash on Hand, Reconciled Transaction Costs, Reconciled Debt, or Reconciled Net Working Capital (including and the amount of any Reconciled Net Working Capital Surplus or Reconciled Net Working Capital Deficiency, as the case may be), as applicable (the “Adjustment Dispute Notice”). The Shareholder Representative’s failure to deliver an Adjustment Dispute Notice within thirty (30) days after receipt of the Reconciliation Statement shall be deemed an acceptance of the Reconciliation Statement and Parent’s calculation of the components therein. Upon Parent’s receipt of an Adjustment Dispute Notice, the Shareholder Representative and Parent shall promptly consult with each other with respect to the specified points of disagreement in an effort to resolve the dispute. Any resolution, acceptance or compromise reached by the Shareholder Representative and Parent will be documented by the Shareholder Representative and Parent in a signed statement that shall be final, conclusive and binding on Parent and the Shareholder Representative.
(e) If Parent and the Shareholder Representative fail to resolve such dispute within thirty (30) days after the Shareholder Representative advises Parent of its objections, then Parent and the Shareholder Representative jointly shall engage the Accounting Firm to resolve such dispute. As promptly as practicable thereafter (and, in any event, within thirty (30) days after the Accounting Firm’s engagement), the Shareholder Representative shall submit any unresolved elements of its objection to the Accounting Firm in writing (with a copy to Parent), supported by any documents and arguments upon which it relies. As promptly as practicable thereafter (and, in any event, within thirty (30) after the Shareholder Representative’s submission of such unresolved elements), Parent shall submit its response to the Accounting Firm (with a copy to the Shareholder Representative) supported by any documents and arguments upon which it relies. Parent and the Shareholder Representative shall request that the Accounting Firm render its determination within thirty (30) days after the Accounting Firm receives Parent’s response. The scope of the disputes to be resolved by the Accounting Firm shall be limited to the unresolved items to which the Shareholder Representative objected. The basis of the Accounting Firm’s determination must be based solely on the definitions and other applicable provisions of this Agreement. In resolving any disputed item, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either party or less than the smallest value claimed for such item by either party. All fees and costs of the Accounting Firm shall be borne by the Shareholder Representative, on the one hand, and Parent, on the other hand, based upon the percentage that the portion of the contested amount not awarded to such party bears to the actual amount contested by such party. All determinations made by the Accounting Firm will be final, conclusive and binding on Parent and the Shareholder Representative.
(f) If the Reconciled Cash on Hand (as finally determined pursuant to Section 1.8(d) or 1.8(e)) is less than the Estimated Cash on Hand, then the Merger Consideration will be adjusted downward by the amount of such shortfall as provided in Section 1.8(k). If the Reconciled Cash on Hand (as finally determined pursuant to Section 1.8(d) or 1.8(e)) is greater than the Estimated Cash on Hand,
then the Merger Consideration will be adjusted upward by the amount of such excess as provided in Section 1.8(k).
(g) If the Reconciled Debt (as finally determined pursuant to Section 1.8(d) or 1.8(e)) is less than the Estimated Debt, then the Merger Consideration will be adjusted upward by the amount of such shortfall as provided in Section 1.8(k). If the Reconciled Debt (as finally determined pursuant to Section 1.8(d) or 1.8(e)) is greater than the Estimated Debt, then the Merger Consideration will be adjusted downward by the amount of such excess as provided in Section 1.8(k).
(h) If the Reconciled Transaction Costs (as finally determined pursuant to Section 1.8(d) or 1.8(e)) are less than the Estimated Transaction Costs, then the Merger Consideration will be adjusted upward by the amount of such shortfall as provided in Section 1.8(k). If the Reconciled Transaction Costs (as finally determined pursuant to Section 1.8(d) or 1.8(e)) are greater than the Estimated Transaction Costs, then the Merger Consideration will be adjusted downward by the amount of such excess as provided in Section 1.8(k).
(i) If the Reconciled Net Working Capital (as finally determined pursuant to Section 1.8(d) or 1.8(e)) results in a Reconciled Net Working Capital Surplus then (x) if the Reconciled Net Working Capital Surplus is less than the Estimated Net Working Capital Surplus, then the Merger Consideration will be adjusted downward by the amount of such shortfall as provided in Section 1.8(k), (y) if the Reconciled Net Working Capital Surplus is greater than the Estimated Net Working Capital Surplus, then the Merger Consideration will be adjusted upward by the amount of such excess as provided in Section 1.8(k), or (z) the Merger Consideration will be adjusted upward by an amount equal to the Estimated Net Working Capital Deficiency plus the Reconciled Net Working Capital Surplus as provided in Section 1.8(k).
(j) If the Reconciled Net Working Capital (as finally determined pursuant to Section 1.8(d) or 1.8(e)) results in a Reconciled Net Working Capital Deficiency, then (x) if the Reconciled Net Working Capital Deficiency is less than the Estimated Net Working Capital Deficiency, then the Merger Consideration will be adjusted upward by the amount of such excess as provided in Section 1.8(k), (y) if the Reconciled Net Working Capital Deficiency is greater than the Estimated Net Working Capital Deficiency, then the Merger Consideration will be adjusted downward by the amount of such shortfall as provided in Section 1.8(k), or (z) the Merger Consideration will be adjusted downward by an amount equal to the Estimated Net Working Capital Surplus plus the Reconciled Net Working Capital Deficiency as provided in Section 1.8(k).
(k) If the net result of the upward and downward adjustments to the Merger Consideration made pursuant to Sections 1.8(f) through 1.8(i) is a decrease to the Merger Consideration, then the Escrow Agent shall, within five (5) Business Days from the date on which such decrease is finally determined pursuant to Sections 1.8(f) through 1.8(i), (i) release to Parent from the Adjustment Escrow Fund an amount of cash equal to such decrease, and (ii) release to the Paying Agent for further distribution to the Indemnifying Parties in accordance with their respective Pro Rata Shares from the Adjustment Escrow Fund the balance of the Adjustment Escrow Fund, if any. For the avoidance of doubt, Parent’s sole recovery for any decrease to the Merger Consideration as a result of the adjustments made pursuant to Sections 1.8(f) through 1.8(i) shall be the Adjustment Escrow Fund.
(l) If the net result of the upward and downward adjustments to the Merger Consideration made pursuant to Sections 1.8(f) through (i) is an increase to the Merger Consideration, Parent shall, within five (5) Business Days from the date on which such increase is finally determined
pursuant to Sections 1.8(f) through 1.8(j), (i) pay the Paying Agent the lesser of the amount of such increase and an amount equal to the Adjustment Escrow Amount (such amount, the “Shortfall Adjustment Amount”), and cause the Paying Agent to pay an amount of cash equal to such Indemnifying Party’s Pro Rata Share of the Shortfall Adjustment Amount to each of the Indemnifying Parties, and (ii) cause the Escrow Agent to release to the Paying Agent (for further distribution to the Indemnifying Parties in accordance with their respective Pro Rata Shares) the Adjustment Escrow Fund. For the avoidance of doubt, the Shareholders’ sole recovery for any increase to the Merger Consideration as a result of the adjustments made pursuant to Sections 1.8(f) through 1.8(i) shall be the release of the Adjustment Escrow Fund and receipt of the Shortfall Adjustment Amount, which Shortfall Adjustment Amount shall not exceed an amount equal to the Adjustment Escrow Amount.
(m) Amounts paid pursuant to this Section 1.8 shall be treated as adjustments to the Merger Consideration for applicable Tax purposes, except as otherwise required by applicable Law.
1.9 Tax Withholding. Notwithstanding anything herein to the contrary, Parent, the Escrow Agent, the Paying Agent, the Company and their respective agents and Affiliates shall be entitled to deduct and withhold from the Merger Consideration and any other payments contemplated by this Agreement such amounts as Parent, the Escrow Agent, the Paying Agent, the Company and their respective agents and Affiliates, as applicable, determines are required to be deducted and withheld with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax Law, or any other Laws. To the extent that amounts are so withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such deduction and withholding were made. At the Closing, or at such time thereafter as reasonably requested by Parent, each Shareholder shall provide Parent any Internal Revenue Service (“IRS”) Form W-4, IRS Form W-9, appropriate IRS Form W-8, or any similar information, certificates or forms that Parent may request in order to allow Parent, the Escrow Agent, the Paying Agent, the Company or any of their respective agents and Affiliates to comply with their withholding and information reporting obligations.
1.10 Shareholder Representative.
(a) Appointment and Authority. Each of the Shareholders, by virtue of the execution and delivery of a Release Agreement, the adoption of this Agreement and the approval of the Merger by the Shareholders, hereby irrevocably (except as set forth in Section 1.10(b)) authorizes and appoints David Stevens and any replacement representative appointed pursuant to Section 1.10(b), with full power of substitution, as such Shareholder’s representative and attorney-in-fact and agent to act for such Shareholder with respect to all matters arising in connection with this Agreement, including full power and authority, exercisable in the sole discretion of the Shareholder Representative, to: (i) take any action contemplated to be taken by the Shareholders under this Agreement or any other Operative Document; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement or any other Operative Document; and (iii) make, receive, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that the Shareholder Representative may deem necessary or advisable in connection with this Agreement or any other Operative Document. The Shareholders shall be bound by all actions and decisions taken, and consents and instructions given, by the Shareholder Representative in connection with this Agreement or any other Operative Document, and Parent and the other Indemnified Parties shall be entitled to rely on, and shall be relieved from any liability to any Person, for any acts done by them in accordance with any such action, decision, consent, or instruction of the Shareholder Representative.
(b) Removal. The Shareholder Representative may be removed by written agreement among Parent and a majority in interest of the Shareholders (excluding the Shareholder Representative, if applicable) calculated with reference to each such Indemnifying Party’s Pro Rata Share. The Shareholder Representative may resign at any time upon giving forty-five (45) calendar days prior written notice of such resignation to Parent and each Indemnifying Party, but shall exercise all the powers enumerated in Section 1.10(a) until the effective date of such resignation. In the event of such removal or resignation, or upon the death or disability of the Shareholder Representative, Parent and a majority in interest of the Shareholders (excluding the Shareholder Representative, if applicable) calculated with reference to each such Indemnifying Party’s Pro Rata Share shall promptly agree on a replacement Shareholder Representative, subject to Parent’s approval, which shall not be unreasonably conditioned, withheld or delayed. Any Survival Period set forth in Section 7.1 and any period in which any Indemnified Party is required to provide notice to the Shareholder Representative with respect to any action to be taken in connection with this Agreement shall be deemed to be extended by the number of calendar days that elapse between the effectiveness of the Shareholder Representative’s resignation, removal, death or disability and the effective appointment of a replacement Shareholder Representative pursuant to the preceding sentence.
(c) Upon the Closing, Parent will wire to an account of Shareholder Representative as designated by the Shareholder Representative at least three (3) Business Days prior to the Closing (the “Expense Fund Account”) an amount of $500,000 in cash (the “Expense Fund”), which will be used (i) for the purposes of paying directly, or reimbursing the Shareholder Representative for, any reasonable, documented, and out-of-pocket losses, liabilities and expenses incurred by the Shareholder Representative in its capacity as such pursuant to this Agreement or any other Operative Document, or (ii) as otherwise determined by the Shareholders. The Shareholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Shareholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Shareholder Representative is not providing any investment supervision, recommendations or advice and will not be liable for any loss of principal of the Expense Fund other than as a result of its bad faith, gross negligence or willful misconduct. Subject to approval of the Shareholders, the Shareholder Representative may contribute funds to the Expense Fund from any consideration otherwise distributable to the Shareholders. The Shareholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable after the completion of the Shareholder Representative’s responsibilities hereunder, the Shareholder Representative will deliver any remaining balance of the Expense Fund to the Paying Agent for further distribution to the Shareholders of the portion of such balance payable to each applicable Indemnifying Party pursuant to Section 1.6. For applicable Tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Shareholders at the time of Closing. Any Tax required to be withheld with respect to the deemed payment to an Indemnifying Party of its portion of the Expense Fund will reduce the amount of cash to such Person at Closing in respect of Common Stock and will not reduce the Expense Fund or amounts paid out of the Expense Fund.
1.11 Earnout Payments.
(a) Subject to, and conditioned upon, the Eligible Revenue being greater than the Minimum Revenue, Parent will pay to the Paying Agent for further distribution to Shareholders, in accordance with each such Shareholder’s Pro Rata Share, the Earnout Payment in accordance with the terms and conditions of this Section 1.11. For the avoidance of doubt, (i) if the Eligible Revenue is less
than the Minimum Revenue, then no Earnout Payment shall be made, and (ii) in no event will the Earnout Payment exceed $10,000,000, in the aggregate.
(b) As soon as reasonably practicable following the completion of the Surviving Corporation’s financial audit for the fiscal year ending December 31, 2026, but no later than 120 days after the fiscal year end, Parent shall provide the Shareholder Representative a written notice (the “Earnout Notice”), which shall include Parent’s determination, as well as the relevant calculations and supporting materials related to such calculation, to the extent reasonably available, of the amount of Eligible Revenue generated during the Earnout Period.
(c) The Shareholder Representative shall have thirty (30) days after receipt of the Earnout Notice to make an objection in writing to any item in such Earnout Notice, specifying in reasonable detail the item objected to and the basis for such objection (the “Notice of Objection”). If the Shareholder Representative delivers a timely Notice of Objection to the Earnout Notice, Parent and the Shareholder Representative shall mutually attempt to resolve such conflict in good faith and to the extent unresolved within forty-five (45) days thereafter, the Parties shall resolve the dispute in the same manner as set forth in Section 1.8(e), mutatis mutandis.
(d) If a timely Notice of Objection is not delivered by the Shareholder Representative to Parent within thirty (30) days following delivery of the Earnout Notice to the Shareholder Representative or if the Shareholder Representative confirms in writing that they have no objection to the items in such Earnout Notice (the earlier of such dates, an “Earnout Determination Date”), such Earnout Notice and the Earnout Payment to be paid thereunder, if any, shall be deemed to have been accepted and final and binding on the parties and, if applicable, shall be paid and issued to the Paying Agent for further distribution to the Shareholders within ten (10) Business Days of the Earnout Determination Date; provided, however, that if, as of the date such Earnout Payment is due, Parent is not permitted under the terms of any senior credit facility that Parent or its Affiliates is a party at such time (each, a “Parent Credit Facility”) to make such Earnout Payment, then such Earnout Payment shall not be deemed due and payable until, and Parent shall make such payment promptly upon, the earliest date that Parent is permitted to make such Earnout Payment in accordance with the terms of any Parent Credit Facility. The Earnout Payment shall accrue interest at the rate of eight percent (8%) per annum from the thirtieth (30th) day after the Earnout Determination Date until the date actually paid. Notwithstanding anything to the contrary set forth herein, as a condition to the Parent’s obligation to pay the Earnout Payment, if and when any such Earnout Payment becomes due, the Shareholder Representative shall first deliver to Parent an updated spreadsheet setting forth the amount of the Earnout Payment payable to each Shareholder.
(e) The Parties acknowledge that after the Closing, Parent shall have the sole power and right to control all aspects of the business and operations of Parent and the Surviving Corporation and that they shall be entitled to take such actions or refrain from taking any actions as Parent, in its sole discretion, deems appropriate and in the best overall interests of the business and operations of Parent and the Company (individually or as a whole). Provided, however, Parent agrees that it will not intentionally take any operational actions with the likely effect of reducing resources available to perform the Company’s obligations under existing customer Contracts for the sole purpose of preventing an Earnout Payment. The Shareholders hereby acknowledge and agree that (1) there is no assurance that the Shareholders will receive any Earnout Payment, and (2) neither Parent nor any Affiliate of Parent (including the Surviving Corporation) owe any fiduciary duty or any other implied duty to the Shareholders with respect to the Earnout Payment.
(f) The right of the Shareholders to receive any amounts with respect to the Earnout Payment (i) shall not be evidenced by a certificate or other instrument, (ii) shall not be assignable or otherwise transferable by a Shareholder other than (A) on death by will or intestacy, (B) pursuant to a court order, (C) by operation of Law (including a consolidation or merger), or (D) without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity, (iii) is not a security, (iv) does not represent any right other than the contingent right to receive the Earnout Payments subject to the conditions and in accordance with the terms of this Agreement, and (v) may be subject to the imputation of interest under the Code or other applicable state, local, or non-U.S. Tax Laws. Any attempted transfer of the contingent right to any amounts with respect to any such Earnout Payment by any Shareholder (other than as specifically permitted by the immediately preceding sentence) shall be null and void.
1.12 Deferred Payment.
(a) Subject to the setoff or holdback rights set forth on Exhibit H, as soon as reasonably practicable following the earlier of (i) the consummation of a Liquidity Event and (ii) the third anniversary of the Closing Date, Parent shall pay, or cause to be paid, to the Paying Agent, by wire transfer of immediately available funds, cash in the aggregate amount of $15,000,000 (the “Deferred Payment Amount”), for further distribution to Shareholders, in accordance with each such Shareholder’s Pro Rata Share (such payment, the “Deferred Payment”), provided, however, that if, as of the date such Deferred Payment is due, Parent is not permitted under the terms of any Parent Credit Facility to make such Deferred Payment, then such Deferred Payment shall not be deemed due and payable until, and Parent shall make such payment promptly upon, the earliest date that Parent is permitted to make such Deferred Payment in accordance with the terms of any Parent Credit Facility. The date on which the Deferred Payment is paid or payable is referred to herein as the “Deferred Payment Date”.
(b) From and after the second anniversary of the Closing Date, the unpaid Deferred Payment Amount, if any, shall accrue interest daily at a rate of (x) until the third anniversary of the Closing Date, six percent (6%) per annum and (y) from and after the third anniversary of the Closing Date, ten percent (10%) per annum. Commencing on third anniversary of the Closing Date, and on each subsequent anniversary of the Closing Date or, if earlier, upon the consummation of a Liquidity Event or payment of the Deferred Payment Amount, the Parent shall pay, or cause to be paid, the accrued and unpaid interest to the Paying Agent, by wire transfer of immediately available funds, for further distribution to Shareholders, in accordance with each such Shareholder’s Pro Rata Share; provided, however, if, as of any such payment date, Parent is not permitted under the terms of any Parent Credit Facility to make such interest payment, then such interest payment shall not be deemed due and payable until, and Parent shall make such payment promptly upon, the earliest date that Parent is permitted to make such interest payment in accordance with the terms of any Parent Credit Facility. The interest payments payable hereunder are referred to herein as the “Deferred Interest Payments”.
(c) Notwithstanding anything herein to the contrary, no interest shall accrue on, and no Deferred Interest Payments shall become payable with respect to, any portion of the Deferred Payment Amount that is included as, or held back as part of, the Deferred Payment Holdback Amount. Provided, however, that if the Deferred Payment Holdback Amount is not due and payable solely as a result of a restriction in a Parent Credit Facility, such amount shall accrue interest at a rate equal to the greater of: (i) eight percent (8%) per annum and (ii) the rate applicable to the rest of the Deferred Payment Amount as specified in Section 1.12(b), above.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the corresponding schedules to the Company Disclosure Schedule delivered by the Company to Parent before the execution of this Agreement, a copy of which is attached hereto (as supplemented by the Sensitive Disclosure Supplement and the Classified Disclosure Supplement, the “Company Disclosure Schedule”) (each of which disclosures shall be deemed to be disclosed and incorporated in each other schedule to the Company Disclosure Schedule solely to the extent its applicability to such other schedule is readily apparent on its face to Parent without further investigation or interpretation), in order to induce Parent to enter into and perform this Agreement, the Company represents and warrants to Parent, as follows:
2.1 Organization.
(a) The Company is duly organized, validly existing and in good standing under the Laws of the State of Texas, and has all requisite power and authority to own, operate and lease its properties and assets and to carry on its business as now conducted and as currently proposed to be conducted.
(b) The Company is duly qualified to do business and is in good standing in each of the jurisdictions specified on Schedule 2.1(b) to the Company Disclosure Schedule, which are the only jurisdictions in which such qualification is necessary to own, operate and lease its properties and assets and to carry on its business as now conducted and as currently proposed to be conducted.
(c) The Company has furnished to Parent accurate and complete copies of its (i) governing documents (including its certificate of formation and bylaws, each as currently in effect as of the date hereof), (ii) minute books for the last three years, (iii) stock transfer records or equivalent documents, (iv) books of account, and (v) statement of solvency. Such books and records accurately reflect the meetings of the Shareholders and the Board referenced therein and the actions taken by written consent of the Shareholders or the Board (or others performing similar functions with respect to the Company, including any committees thereof), as applicable, as described therein. The minutes contained therein accurately reflect the events of and actions taken at such meetings; and such stock or interest transfer records accurately reflect all issuances, repurchases, transfers and cancellations of shares of capital stock of the Company, including all Common Stock, since the Company’s inception, except as would not affect the representations and warranties in Section 2.3.
2.2 Authority.
(a) The Company has full power and authority to execute this Agreement and the other Operative Documents to which it is (or will be) a party and to perform its obligations hereunder and thereunder. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of the other parties hereto other than the Company, this Agreement is the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, and each of the other Operative Documents to which the Company is (or will be) a party, when executed by the Company, and assuming the due authorization, execution and delivery by each of the other parties thereto other than the Company, will be the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except, in each case, to the extent such enforceability is subject to the effect of any applicable Equitable Principles. No Takeover Statute applicable to the Company is applicable to the transactions contemplated hereby. The Board has
unanimously approved this Agreement and each of the other Operative Documents to which the Company is (or will be) a party.
(b) The adoption of this Agreement and approval of the Merger and the other transactions contemplated by this Agreement requires the affirmative vote of the Shareholders holding at least two-thirds of the Common Stock issued and outstanding on the applicable record date (the “Requisite Approval”), and no further approval by the Shareholders is required pursuant to the Company’s organizational documents, Texas Corporation Law, or Contract.
2.3 Capitalization.
(a) The authorized capital stock of the Company consists of 3,000,000 shares of Common Stock, $0.005 par value per share (the “Common Stock”). The Common Stock is held of record and beneficially by the Shareholders as set forth on Schedule 2.3(a)(1) to the Company Disclosure Schedule, free and clear of any Encumbrances and no other Persons own, has owned or has any claim to ownership of any capital stock of the Company. The Common Stock has been authorized and validly issued and is fully paid and nonassessable, was issued in compliance with all applicable Laws and was not issued in violation of any preemptive rights applicable thereto. Except as set forth on Schedule 2.3(a)(1) to the Company Disclosure Schedule, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person and there are no and there have never been any outstanding Stock Purchase Rights, stock appreciation rights, phantom stock rights, or other similar rights with respect to the Company. Except for that certain Agreement of Shareholders of Innovative Signal Analysis, Inc., dated December 30, 1999, as amended on December 1, 1999 and December 1, 2001 (the “Shareholders Agreement”), a true and correct copy of which has been made available to Parent, and the Acknowledgments of Stock Bonus, in substantially the form made available to Parent, there are no shareholder agreements or similar agreements, including any agreement that affects or restricts the voting rights or right to transfer the capital stock of the Company (including any rights of first refusal or offer, co-sale, ta-along or drag-along rights), and there are no investor rights or similar agreements, including any agreements providing for any registration rights, information or inspection rights, or similar rights with respect to the Company or the securities of the Company, and there are no agreements obligating the Company to repurchase or redeem any shares of capital stock. The Company has no outstanding legal commitments to grant any options to purchase shares of Common Stock or any other equity awards.
(b) The Company does not have any Debt, the holder of which (i) has the right to vote (or that is convertible into securities that have the right to vote) with Shareholders on any matter, or (ii) is or will become entitled to any payment as a result of the transactions contemplated hereby. As of the date hereof, the aggregate outstanding amount of the Company’s Debt defined in clauses (a), (b), and (c) of the definition of Debt is $0.
(c) The Estimated Closing Certificate, when delivered, will be true and correct in all respects, and upon payment of the amounts set forth therein, none of Parent, the Company or any of their respective Representatives will have any obligation to the Persons to whom any of the items set forth in Section 1.6(c) are owed with respect to such items. Except with respect to Dissenting Shares, upon payment of the Merger Consideration as provided for in this Agreement, (i) none of Parent, the Company or any of their respective Representatives will have any obligation to the Shareholders with respect to the Common Stock or to any other shareholder, purported shareholder or any other purported holder of any interest in the capital stock of the Company, and (ii) no present or former holder or purported holder of any capital stock or any options, warrants, calls, rights or securities convertible into capital stock of the
Company shall have any right or claim to any capital stock of the Company or any portion of the Merger Consideration.
(d) The Company does not have and has never had any direct or indirect Subsidiaries and does not own and has never owned, directly or indirectly, any ownership, equity, partnership, membership, voting or similar interest in, or any interest convertible into, exercisable for the purchase of or exchangeable for any such equity, partnership, membership or similar interest, or is under any current or prospective obligation to form or participate in, provide funds to, make any loan, capital contribution or other investment in, or assume any liability or obligation of, any Person.
(e) Schedule 2.3(e) to the Company Disclosure Schedule sets forth an indication of whether any Common Stock is or has been subject to a substantial risk of forfeiture within the meaning of Section 83 of the Code and the Treasury Regulations thereunder and, if so, (i) whether a valid election was made under Section 83(b) of the Code with respect to any such Common Stock, (ii) any applicable Tax withholding to be applied to the vesting, or payments in respect, of such Common Stock, and (iii) whether the holder of the Common Stock is subject to any Debt relating to the acquisition of such Common Stock.
2.4 No Approvals; No Conflicts. Except as described on Schedule 2.4 to the Company Disclosure Schedule, the execution, delivery and performance by the Company of this Agreement and the other Operative Documents to which the Company is (or will be) a party and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not: (a) violate (with or without the giving of notice or lapse of time, or both) any Law applicable to the Company, (b) require any consent, approval or authorization of, declaration, filing or registration with, or notice to, any Person, other than as may be required under the HSR Act or other Antitrust Law, (c) result in a default (with or without the giving of notice or lapse of time, or both) under, or acceleration or termination of, or the creation in any Person of the right to accelerate, terminate, modify or cancel, any Encumbrance, Contract, obligation or Liability to which the Company is a party or by which it is bound or to which any assets of the Company are subject, (d) result in the creation of any Encumbrance on any assets of the Company, (e) conflict with or result in a breach of or constitute a default under any provision of the Company’s governing documents, (f) invalidate or adversely affect any permit, license or authorization used in the conduct of the Company’s businesses, or (g) impair the right of the Company (or Buyer Entity after the Closing) to Exploit any Company IP.
2.5 Financial Statements.
(a) The Company has delivered to Parent (i) an unaudited balance sheet for the fiscal year ended December 31, 2023 (the “2023 Unaudited Financial Statements”), (ii) an audited balance sheet and statement of profits and losses and cash flows of the Company at and for the fiscal years ended December 31, 2024, and accompanying notes (the “2024 Audited Financial Statements” and together with the 2023 Unaudited Financial Statements, the “Annual Financial Statements”), and (iii) an unaudited balance sheet and statements of profits and losses and cash flows of the Company at and for the ten-month period ended October 31, 2025 (the “Interim Financial Statements” and collectively with the Annual Financial Statements, the “Financial Statements”).
(b) The Financial Statements are accurate, complete and consistent with the books and records of the Company. The 2024 Audited Financial Statements have each been prepared in conformity with GAAP and applicable Laws. The Financial Statements fairly present in all material respects, the financial position, results of operations and changes in financial position of the Company as
of the dates and for the periods indicated, except (i) with respect to the Interim Financial Statements, subject solely to normal recurring period end adjustments and (ii) with respect to the 2023 Unaudited Financial Statements and the Interim Financial Statements, those exceptions to GAAP set forth on Schedule 2.5(b) to the Company Disclosure Schedule. The balance sheet of the Company as of October 31, 2025 is herein referred to as the “Company Balance Sheet.”
(c) The Company does not have any Liabilities or obligations of any nature (absolute, contingent, or otherwise) that are not fully reflected or reserved against in the Company Balance Sheet, except Liabilities or obligations incurred since the date of the Company Balance Sheet in the ordinary course of business and consistent with past practice, or which are contemplated by, or were incurred in connection with this Agreement or the transactions contemplated herein. The Company does not have any off balance sheet Liabilities of any nature to, or any financial interest in, any third party or entities, the purpose or effect of which is to defer, postpone, reduce or otherwise avoid or adjust the recording of debt expenses incurred by the Company. The Company is not a guarantor, indemnitor, surety or other obligor of any indebtedness of any other Person. The Company has delivered to Parent accurate and complete copies of all management letters and other correspondence received from the Company’s accountants relating to the Company’s financial statements, accounting controls and all related matters. There has been no incidence of fraud that involves any current or former directors, officers, employees or other agents of the Company.
(d) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with applicable GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the obligations of the Company are satisfied in a timely manner and as required under the terms of each Contract to which the Company is a party or by which the Company is bound. To the Knowledge of the Company, the Company has no unremedied significant deficiencies or material weaknesses in the design or operation of internal control over financial reporting.
2.6 Absence of Certain Changes or Events. Except for transactions specifically contemplated in this Agreement or as set forth on Schedule 2.6 to the Company Disclosure Schedule, since the date of the Company Balance Sheet: (a) the business of the Company has been conducted only in, and the Company has not taken any action except in, the ordinary course of business and consistent with past practice; (b) there has not occurred any Material Adverse Effect and no event has occurred or circumstances exist, that may result in or cause a Material Adverse Effect; and (c) neither the Company nor any of its officers, directors, employees or other agents has taken any of the following actions:
(a) amended or otherwise changed its governing documents;
(b) issued, sold, contracted to issue or sell, pledged, disposed of, granted, encumbered or authorized the issuance, sale, pledge, disposition, grant or Encumbrance of any capital stock or Stock Purchase Rights, or other ownership interest (including any phantom interest), of the Company, or any revenue or profit-sharing interest in respect of the Company;
(c) declared, set aside, made or paid any dividend, profit interest or other distribution with respect to any of its capital stock;
(d) reclassified, combined, split, subdivided, redeemed, purchased or otherwise acquired, directly or indirectly, any of its capital stock;
(e) (i) acquired or invested in any Person or division thereof; (ii) incurred or repaid any indebtedness which would, if incurred on the date hereof, constitute Debt or issued any debt securities or assumed, guaranteed, endorsed or otherwise became responsible for, the obligations of any Person, or made any loans or advances; (iii) terminated or amended any Material Contract, except, in the case of amendments, such amendments are not materially detrimental to the Company or do not alter the monetary value of such Material Contract in a manner adverse to the Company; (iv) authorized any capital expenditures outside the ordinary course of business; or (v) increased or changed any assumptions underlying, or methods of calculating, any bad debt, contingency or other reserves;
(f) (i) increased or modified (other than in the ordinary course of business and consistent with past practice), deferred or failed to pay the compensation (including base and incentive compensation) payable or to become payable to its directors, officers, employees, consultants or contractors, or otherwise altered the terms and conditions of employment or engagement for any current employee or contractor, consultant, advisor or other non-employee service provider; (ii) granted any severance, termination pay, retention payment, change of control bonus or award, or any similar payment or benefit to any director, officer or employee of the Company or other Person; (iii) established, adopted, entered into, terminated, failed to renew or amend any Employee Benefit Plan, trust, fund or policy for the benefit of any director, officer, employee, consultant, advisor or contractor; (iv) made any equity awards to any director, officer, employee, consultant, advisor or contractor of the Company; or (v) took any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Employee Benefit Plan to the extent not explicitly required by the terms of this Agreement or such Employee Benefit Plan as in effect on the date of this Agreement;
(g) recognized, or entered into, any contract or other agreement with any labor organization, except as otherwise required by Law and after notification and consultation with Parent;
(h) made or changed any accounting methods or practices or internal accounting control, inventory, investment, credit or allowance procedures or practices;
(i) changed any Tax accounting procedures or practices; made, altered or revoked any Tax election, file any Tax Return outside of the ordinary course of business or otherwise in a manner inconsistent with past practice, settled or compromised any Tax claim, notice, audit, assessment or liability, entered into any Tax sharing, allocation, indemnity or similar agreement or closing agreement, assumed any Liability for the Taxes of any other Person (whether by Contract or otherwise), consented to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, filed any amended Tax Return surrendered any right to claim a Tax refund, offset, or other reduction in Tax liability, availed itself of relief pursuant to Pandemic Response Laws or taken any other action that could reasonably be expected to impact the Tax payment and/or reporting obligations of Parent or the Company after the Closing Date;
(j) paid, discharged or satisfied any Claim, Liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of Claims, Liabilities and obligations reflected or reserved against in the Company Balance Sheet or incurred in the ordinary course of business and consistent with past practice since the date of the Company Balance Sheet;
(k) forgave, cancelled, or deferred any indebtedness or waive any claims or rights of material value;
(l) purchased or sold, transferred, licensed, leased or otherwise disposed of any material properties or assets (real, personal or mixed, tangible or intangible), other than the purchase of inventory in the ordinary course of business and consistent with past practice;
(m) assigned, licensed, forfeited or permitted to lapse, or instructed or consented to a future lapse of, any Company Intellectual Property Rights;
(n) made or approved any write-off or write-down or any determination to write-off or write-down any of the assets or properties of the Company;
(o) paid, loaned or advanced any amount to, or sold, transferred, licensed, leased or otherwise disposed of any properties or assets (real, personal or mixed, tangible or intangible) to, any current or former shareholders, members, officers, directors, managers, employees or consultants of the Company or any of its Affiliates, other than (i) cash compensation paid to officers, employees and consultants in the ordinary course of business and consistent with past practice at rates not exceeding the rates of compensation paid during the fiscal year last ended plus regular increases in the ordinary course of business and in amounts consistent with past practice, and (ii) advances for travel and other business-related expenses reimbursed in the ordinary course of business and consistent with past practice;
(p) accelerated the collection of any receivables or delayed the payment of any payables in any manner not in the ordinary course of business and consistent with past practice;
(q) modified or amended any of Company’s privacy statements, or published any new privacy statement; or
(r) agreed or committed to do any of the foregoing.
2.7 Receivables, Payables and Deferred Revenue.
(a) All accounts and notes receivable of the Company reflected on the Company Balance Sheet and all accounts and notes receivable of the Company arising after the date of the Company Balance Sheet through Closing (i) arose from bona fide sales transactions in the ordinary course of business and are payable on ordinary trade terms; (ii) are legal, valid, and binding obligations of the respective debtors enforceable in accordance with their terms; (iii) are not subject to any set-off or counterclaim; (iv) do not represent obligations for goods sold on consignment, on approval, or on a sale-or-return basis or subject to any other repurchase or return arrangement; (v) are collectible in the ordinary course of business consistent with past practice for the aggregate recorded amounts thereof, net of any applicable reserve reflected on the Company Balance Sheet; (vi) are not the subject of any Claim brought by or on behalf of the Company; and (vii) the Company has not received or made any donations, grants, gifts or any form of contribution whatsoever from any Person (including any foreign entity).
(b) Schedule 2.7(b) to the Company Disclosure Schedule sets forth an accurate and complete description of any security arrangements and collateral securing the repayment or other satisfaction of receivables of the Company.
(c) The Company has taken all steps reasonably necessary to render all such security arrangements legal, valid, binding, and enforceable, and to give and maintain for the Company a
perfected security interest in the related collateral. There are no unpaid invoices or other Claims representing amounts alleged to be owed by the Company that the Company has disputed or determined to dispute or refuse to pay.
(d) All deferred revenue recorded in the Company’s Financial Statements has been recognized in accordance with GAAP and reflects bona fide payments received in advance for services to be rendered under valid and enforceable customer Contracts. As of the date hereof, the Company has no material obligations under such Contracts that are not reflected in the deferred revenue liabilities disclosed in the Financial Statements. The Company further represents that it has the operational capacity and resources to fulfill all obligations associated with such deferred revenue without incurring material costs beyond those accounted for in the Financial Statements. Other than as set forth on Schedule 2.7(d) to the Company Disclosure Schedule, no portion of the deferred revenue is subject to refund, rebate, or other adjustment.
2.8 Property.
(a) The Company does not own and has never owned any real property.
(b) Schedule 2.8(b) to the Company Disclosure Schedule sets forth an accurate and complete list of all real property leased or currently being used by the Company (the “Real Property”).
(c) The lease agreements with respect to the Real Property (the “Leases”) are valid, binding and enforceable in accordance with their terms and are in full force and effect. All applicable duties (including stamp duties) and registration charges, to the extent required under applicable law, have been paid in relation to the Leases. None of the Leases was for a term of 30 years or more at the time it was executed (including renewal options). The Company has performed all material obligations imposed on it under the Leases, and neither the Company nor any other party thereto is in default thereunder, nor is there any event that with notice or lapse of time, or both, would constitute a default by the Company or, to the Knowledge of the Company, any other party thereunder. There is not, and within the past 12 months there has not been, any material disagreement or dispute with any other party to any of the Leases, nor is there any pending request for amendment of any of the Leases. The Company has not received any notification that any party to any of the Leases intends to cancel, terminate, materially modify, refuse to perform or refuse to renew any of the Leases. The Company has provided to Parent true and complete copies of all Leases.
(d) Schedule 2.8(d) to the Company Disclosure Schedule sets forth an accurate and complete list of all material personal property owned by the Company (the “Personal Property”).
(e) All of the material tangible assets and properties of the Company are in good condition and repair subject to normal wear and tear, in sufficient working order and have been properly maintained.
(f) The properties and assets owned, leased or licensed by the Company include all material properties and assets used in the Company’s business and are sufficient for the conduct of Company’s business as now conducted and as currently proposed to be conducted.
(g) The Company’s interests in the Real Property and the Personal Property are free and clear of all Encumbrances, except for Permitted Encumbrances.
2.9 Labor and Employment Matters.
(a) Section 2.9(a) to the Company Disclosure Schedule sets forth a list of all current employees and individual independent contractors, consultants, and advisors providing services to the Company as of the date of this Agreement, which correctly reflects, in all material respects: (i) their names (except where prohibited by law); (ii) their employment or engagement start dates; (iii) their location of employment or where such individual provides services to the Company; (iv) their status as an employee, independent contractor, consultant, or advisor; (v) their titles, positions, or a description of their contracted services rendered; (vi) their full-time, part-time, or temporary status; (vii) their base salaries, base hourly wage, or contract rate; (viii) their target bonus rates or target commission rates and summary of their eligibility for any other incentive compensation; (ix) any other compensation payable to them (including housing allowances, compensation payable pursuant to any other bonus, deferred compensation or commission arrangements or other compensation, mandatory end-of-service and/or severance payments); (x) accrued but unused vacation time and/or paid time off; (xi) leave of absence status and expected return date; (xii) any promises or commitments made to them with respect to changes or additions to their compensation or benefits; (xiii) their visa status, if applicable; and (xiv) their exempt or non-exempt status (as applicable) under the Fair Labor Standards Act or any other similar Laws. To the Knowledge of the Company, no Key Employee intends to terminate his or her employment relationship with the Company and no other employee, independent contractor, consultant, or advisor intends to terminate his or her employment, consulting, or advisory relationship with the Company. As of the date hereof, the Company has no Liabilities for untimely payment of or failure to make payments due to independent contractors or consultants by the Company for services performed on or prior to the date hereof.
(b) The Company has not been party to any labor, collective bargaining, or similar agreement with any labor union, works council, or similar organization, and there are no organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining unit pending or, to the Knowledge of the Company, threatened against the Company. No employees of the Company are represented by any labor organization, works counsel, trade union or employee representative body. There is no labor dispute pending or, to the Knowledge of the Company, threatened against or affecting the Company, and the Company nor has not experienced any work stoppage since its inception. The Company has never experienced any union organization attempts, labor disputes, work stoppages, or slowdowns due to labor disagreements. To the Company’s Knowledge, there are no union organization attempts, labor disputes, work stoppages, or slowdowns pending or threatened against the Company.
(c) All employees of the Company who are employed in the United States are employed on an “at will” basis and their employment may be terminated without provision of advance notice, continuation of benefits (except as required by Law), or any retention or equity benefits or payment of any severance benefits. All Contracts between the Company and any non-employee service providers are terminable at any time on not more than three months’ notice without compensation (other than for unfair dismissal or a statutory redundancy payment) or any liability on the part of the Company (other than wages or pension). To the Knowledge of the Company, all employees and other individual service providers of the Company and its Subsidiaries working in the United States are legally authorized to work in the United States. The Company has obtained and maintained documentation required by the Immigrant Reform and Control Act of 1986 from its current and former employees working in the United States confirming their eligibility to work in the United States, and the Company has complied with the ICRA and all other Laws respecting immigration and work authorization in all material respects. The Company has not received any notice from any Governmental Body that the Company is in violation of
any Law pertaining to immigration control or that any current or former employee, contractor, or other service provider of the Company working in the United States is or was not legally authorized to be employed in the United States or is or was using an invalid social security number.
(d) The Company has been in compliance with all Laws respecting labor and employment, including without limitations any federal, state, local or foreign Laws and orders by Governmental Bodies related to hiring, termination, discrimination, harassment, retaliation, accommodation, terms and conditions of employment, wages, hours, employment practices, immigration, meal and rest breaks, pay equity, equal opportunity and affirmative action obligations, background checks, disability, unemployment compensation, whistleblower protection, restrictive covenants, leaves of absence, sick leave, and occupational safety and health, and has not engaged in any unfair labor practice. No current or former independent contractor of the Company is, has been or could reasonably be deemed to be a misclassified employee. No current or former employee of the Company is, has been or could reasonably be deemed misclassified for overtime purposes under applicable wage and hour laws. Since the inception of the Company, the Company has withheld all amounts required by any Laws or by Contract to be withheld from the wages, salaries and other payments to its employees, including common law employees and other service providers, and is not liable for any arrears of wages (including commissions, bonuses or other compensation) or any Taxes or any penalty for failure to comply with any of the foregoing (or, if any arrears, penalty or interest was assessed against the Company regarding the foregoing, it has been fully satisfied). The Company is not liable for any payment to any trust or other fund or to any governmental or administrative authority with respect to unemployment compensation benefits, workers’ compensation benefits, social security, social benefits or other benefits or obligations for employees (other than timely routine payments to be made in the ordinary course of business and consistent with past practice).
(e) Since January 1, 2022, there have not been and are no Claims or other actions, suits, charges, complaints, grievances, arbitrations, investigations or other legal proceedings against the Company pending, or to the Knowledge of the Company, threatened to be brought or filed, by or with any Governmental Body or arbitrator in connection with the employment or engagement of any current or former employee, applicant, contractor, or other individual service provider of the Company or otherwise related to labor and employment, including, without limitation, any Claim relating to unfair labor practices, compensation, wage and hour violations, severance benefits, vacation time, vacation pay or pension benefits, discrimination, harassment, retaliation, failure to accommodate, wrongful discharge or any other employment related matter arising under applicable Laws. To the Knowledge of the Company, there are no facts that would reasonably be expected to give rise to any such Claim. To the Knowledge of the Company, none of the employment policies or practices of the Company are currently being audited or investigated by any Governmental Body. There have not been and are no pending Claims against the Company under any workers compensation plan or policy or for long term disability that are not covered by insurance. No allegations have been made against the Company that any current or former director, officer, employee, consultant, advisor or contractor of the Company is or was in violation of any provision or covenant of any Contract with any Person by virtue of such director’s, officer’s, employee’s, consultant’s or contractor’s being employed by, performing services for, or serving on the Board (or equivalent governing body) nor, to the Knowledge of the Company, is any such person in violation of any such Contract.
(f) Except as set forth on Schedule 2.9(f) to the Company Disclosure Schedule, since January 1, 2022, (i) no allegations of discrimination, harassment (including sexual harassment), retaliation or misconduct are or have been pending, or to the Knowledge of the Company, are or have been threated against any employee, contractor, consultant or non-employee service provider of the
Company, and (ii) the Company has not entered into any settlement agreement or conducted any investigation (internal or otherwise) related to allegations of discrimination, harassment (including sexual harassment), retaliation or misconduct by any current or former employee, contractor, director, officer or other representative of the Company. To the Knowledge of the Company, there are no facts that would reasonably be expected to give rise to a claim of sexual harassment, other unlawful harassment or unlawful discrimination or retaliation against or involving the Company or any current or former employee, director or individual service provider of the Company.
(g) The Company has not implemented any “plant closing,” “mass layoff,” “relocation,” or other action that did or would reasonably be expected to require notification or trigger other requirements under the Worker Adjustment Notification and Retraining Act or similar foreign, federal, or state law requiring advance notice to employees of termination and no such actions will be implemented before the Closing Date.
(h) Except as set forth Schedule 2.9(h) to the Company Disclosure Schedule, for the past three (3) years, the Company has maintained written affirmative action plans for each facility or establishment in compliance with Executive Order (E.O.) 11246, as amended, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended, 38 U.S.C. 4212 and Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended, and have annually conducted a compensation review of its workforce. The Company timely certified compliance on the contractor portal of the Office of Federal Contract Compliance Programs (“OFCCP”) in 2022 and 2023 for each facility or establishment. The Company has provided true and correct copies of its written affirmative action plans and exhibits thereto from the current year and the prior year, including statistical data showing any placement goals, any adverse impact, and its compensation review. Except as set forth in Schedule 2.9(h) to the Company Disclosure Schedule, the Company has not had any of the following in its current or prior year’s affirmative action plan: (i) placement goals; (ii) statistically significant adverse impact in hiring, promotions, or terminations; or (iii) statistically significant compensation disparities.
(i) Presently and during the past three (3) years, no facility or establishment of the Company (i) is being or has been audited, reviewed, or investigated by OFCCP; (ii) is negotiating or has entered into a conciliation agreement or settlement agreement with OFCCP; or (iii) has been listed on a Corporate Scheduling Announcement Letter (CSAL) or received any notice that OFCCP intends to initiate an audit, review, or investigation of any facility or establishment of the Company where the audit, review, or investigation has not yet begun.
2.10 Employee Benefit Plans.
(a) Schedule 2.10(a) to the Company Disclosure Schedule sets forth an accurate and complete list of all Employee Benefit Plans.
(b) The Company does not have any agreement, commitment or obligation to create, enter into or contribute to any other Employee Benefit Plan, or to modify or amend any existing Employee Benefit Plan. The terms of each Employee Benefit Plan permit the Company to amend and terminate such Employee Benefit Plan.
(c) With respect to each Employee Benefit Plan, the Company has made available to Parent a current, accurate and complete copy (or, to the extent no such copy exists, an accurate description) thereof and, to the extent applicable: (i) any contractual obligations relating to any Employee Benefit Plan, including all trust agreements, insurance or annuity contracts, investment management
agreements, record keeping agreements and other documents or instruments related thereto; (ii) the most recent determination letter or opinion letter, if applicable; (iii) any summary plan description and other written communications (or a description of any oral communications) by the Company to the Company’s employees concerning the extent of the benefits provided under an Employee Benefit Plan; (iv) a summary of any proposed amendments or changes anticipated to be made to the Employee Benefit Plans at any time within the twelve months immediately after the date hereof; (v) for the three most recent years (A) the Form 5500 and attached schedules, (B) reviewed financial statements, (C) actuarial valuation reports, and (D) any non-discrimination testing results; and (vi) all material written correspondence relating to any audit, investigation or correction associated with any Employee Benefit Plan.
(d) With respect to each Employee Benefit Plan: (i) such Employee Benefit Plan is, and at all times has been, maintained, administered and funded in all respects in accordance with its terms and in compliance with all applicable laws; and (ii) the Company has not incurred, and there exists no condition or set of circumstances in connection with which the Company or Parent could incur, directly or indirectly, any liability or expense (except for routine contributions and benefit payments) under ERISA, the Code or any other applicable law, or pursuant to any indemnification or similar agreement with respect to such Employee Benefit Plan. All Taxes that are required by Law to be withheld from benefits derived under the Employee Benefit Plans have been properly withheld and remitted to the proper depository in a timely manner. All payments or contributions required to have been made with respect to all Employee Benefit Plans have been timely made or accrued in accordance with the terms of the applicable Employee Benefit Plan and applicable Law. No litigation or governmental administrative proceeding, audit or other Claim (other than those relating to routine claims for benefits) is pending or, to the Knowledge of the Company, threatened with respect to any Employee Benefit Plan or any fiduciary or service provider thereof.
(e) Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and its related trust or group annuity Contract is exempt from taxation under Section 501(a) of the Code. Each such Employee Benefit Plan is the subject of an unrevoked favorable determination or opinion letter from the IRS with respect to such Employee Benefit Plan’s qualified status under the Code. To the Knowledge of the Company, nothing has occurred or is reasonably expected by the Company to occur that could adversely affect the qualification or exemption of any such Employee Benefit Plan or its related trust or group annuity Contract. Each other Employee Benefit Plan, if intended to qualify for special tax treatment, meets all requirements for such treatment.
(f) Neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, has ever sponsored, maintained or contributed to (or been obligated to sponsor, maintain or contribute to) or has otherwise had any Liability or obligation with respect to, (i) a “multiemployer plan,” as defined in Section 3(37) or Section 4001(a)(3) of ERISA, (ii) a multiple employer plan within the meaning of Section 4063 or Section 4064 of ERISA or Section 413 of the Code, (iii) an employee benefit plan that is subject to Section 302 of ERISA, Title IV of ERISA or Section 412 of the Code, or (iv) a “multiple employer welfare arrangement,” as defined in Section 3(40) of ERISA. No Employee Benefit Plan is a defined benefit pension plan. Neither the Company nor any ERISA Affiliate has incurred any liability under Title IV of ERISA that has not been paid in full.
(g) The Company and each Employee Benefit Plan that is a “group health plan” as defined in ERISA Section 733(a)(1) (“Company Health Plan”) (i) are currently in material compliance with the Patient Protection and Affordable Care Act (the “ACA”), the Health Care and Education Reconciliation Act of 2010, and all amendments thereto and regulations and guidance issued thereunder (collectively, “Healthcare Reform Laws”), (ii) have been in material compliance with all applicable
Healthcare Reform Laws since March 23, 2010, and (iii) no event has occurred, and no condition or circumstance exists, that would reasonably be expected to subject the Company, any or its Affiliates or any Company Health Plan to penalties or excise taxes under Sections 4980D or 4980H of the Code or any other provision of the Healthcare Reform Laws. Any Company Health Plan intended to qualify as “grandfathered” under Section 1251 of the ACA has continuously satisfied the requirements to be a grandfathered plan since March 23, 2010. No Employee Benefit Plan is a pre-tax or after-tax “employer payment plan” (within the meaning of IRS Notice 2013-54). The Company and its Affiliates have calculated the hours of service for employees of the Company in accordance with Section 4980H of the Code and maintained appropriate documentation thereof. The Company has never maintained, established, sponsored, participated in or contributed to any self-insured plan that provides medical, dental or any other similar employee benefits to employees (including any such plan pursuant to which a stop-loss policy or contract applies). The obligations of all Employee Benefit Plans that provide health, welfare or similar insurance are fully insured by bona fide third-party insurers. No Employee Benefit Plan is maintained through a human resources and benefits outsourcing entity, professional employer organization or other similar vendor or provider.
(h) Except as described on Schedule 2.10(h) to the Company Disclosure Schedule, neither the Company nor any Employee Benefit Plan provides or has any obligation to provide (or contribute toward the cost of) post-employment or post-termination benefits of any kind, including death and medical benefits, with respect to any current or former officer, employee, agent, director or independent contractor of the Company, other than continuation coverage mandated by Sections 601 through 608 of ERISA and Section 4980B(f) of the Code or other similar state or local Law.
(i) Neither the execution and delivery of this Agreement or any of the other Operative Documents nor the consummation of the transactions contemplated hereby or thereby (either alone or on the occurrence of any additional or subsequent event(s)) could reasonably be expected to (i) entitle any individual to severance, retention, change of control, or termination pay, unemployment compensation or any other compensation or benefit, (ii) result in any benefit or right becoming established or increased, or accelerate the time of payment or vesting of any benefit, under any Employee Benefit Plan, or (iii) require the Company, Parent or any of their respective Affiliates to transfer or set aside any assets to fund or otherwise provide for any benefits for any individual.
(j) Neither the Company nor any ERISA Affiliate has received services from any individual (i) whom the Company or such ERISA Affiliate treated as an independent contractor, but who should have been treated as an employee under applicable Law, or (ii) who constituted a leased employee of the Company or such ERISA Affiliate under Section 414(n) of the Code.
(k) Other than as set forth on Schedule 2.10(k) to the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate sponsors, maintains or contributes to, and has never sponsored, maintained or contributed to (or been obligated to sponsor, maintain or contribute to), any Employee Benefit Plan subject to the Laws of any jurisdiction outside of the United States.
2.11 Intellectual Property.
(a) Intellectual Property.
(i) The Company exclusively owns, or has the valid right or license to Exploit, all Company-Owned IP, free and clear of all Encumbrances other than Permitted Encumbrances. The Company has not granted any licenses with respect to the Company IP other than the Outbound
Licenses listed in Schedule 2.11(a) to the Disclosure Schedule. The Company-Owned IP and the Third Party IP is sufficient for the conduct of the Company’s business as now conducted and as currently proposed to be conducted.
(ii) Schedule 2.11(a)(ii) to the Company Disclosure Schedule sets forth an accurate and complete list of Inbound Licenses.
(iii) The Company has made available to Parent true and complete copies of all the Company IP Agreements.
(iv) Except as described on Schedule 2.11(a)(iv) to the Company Disclosure Schedule, the Company has not directly or indirectly (A) transferred ownership of, or granted any exclusive license of or exclusive right to use any Company-Owned IP, to any Person, or (B) permitted the Company’s rights in any Company-Owned IP to lapse or enter the public domain.
(b) Intellectual Property Registrations.
(i) Schedule 2.11(b)(i) to the Company Disclosure Schedule sets forth all registrations and applications made by, on behalf of, or in the name of, or otherwise owned by, the Company (or under obligation of assignment to the Company) in any jurisdiction for any patents, copyrights, mask works, and any other Company Intellectual Property Right (collectively, “Company IP Registrations”).
(ii) All of the registered Company Intellectual Property Rights that have been issued from Company IP Registrations (“Registered Company IP”) are subsisting in full force and effect, enforceable and valid. There are no actions that must be taken by the Company or Parent within 180 days after the date of this Agreement for the purpose of obtaining, maintaining, perfecting, preserving or renewing any Company IP Registration or Registered Company IP. All necessary registration, maintenance and renewal fees currently due in connection with the Company IP Registrations have been made and all necessary documents, recordations and certificates in connection with the Company IP Registrations have been filed with the relevant patent, copyright, trademark or other authorities in the United States or foreign jurisdictions, as the case may be, for the purposes of prosecuting, perfecting and maintaining the Company IP Registrations. There is no information, materials, facts, or circumstances, including any information or fact that would constitute prior art, that would render any of the Company IP Registrations or Registered Company IP invalid or unenforceable, or would materially affect any pending application for any Company IP Registration. The Company has not misrepresented, or failed to disclose, any facts or circumstances in any application for any Company IP Registrations that would constitute fraud or a misrepresentation with respect to such application or that would otherwise affect the validity or enforceability of any Company IP Registration or Registered Company IP. The Company has not engaged in any action or any omission, has not conducted its business, and has not used or enforced or failed to use or enforce the Company-Owned IP, in a manner that would result in the abandonment, cancellation or unenforceability of any Company Intellectual Property Right or Company IP Registration, and the Company has not taken (or failed to take) any action that would result in the forfeiture or relinquishment of any Company Intellectual Property Right or Company IP Registration.
(iii) The Company has taken reasonable steps to enforce and protect the goodwill of unregistered Company-Owned IP. There have been no interferences, re-examinations or oppositions brought or, to the Knowledge of the Company, threatened to be brought involving any of the
Company IP Registrations or Registered Company IP, nor, to the Knowledge of the Company, is there any basis for any such interference, re-examination or opposition.
(c) Payments. Except as set forth in the Inbound Licenses, no royalties, commissions, fees or other payments are or will become payable by the Company or Parent to any Person by reason of the Exploitation of any Company IP in the conduct of the Company’s business as now conducted and as currently proposed to be conducted.
(d) No Infringement.
(i) The operation of the business of the Company as conducted and as currently proposed to be conducted (A) does not, has not, and will not, conflict with, infringe, violate or interfere with or misappropriate any right (including any Intellectual Property Right), title or interest of any Person, and (B) does not, has not, and will not constitute unfair competition or unfair trade practices under any Laws. There is no pending or threatened Claim that any of the Company-Owned IP is invalid or contesting the ownership or right of the Company to Exploit any of the Company-Owned IP, nor to the Knowledge of the Company is there any basis for any such Claim. There is no pending or threatened Claim against the Company, and to the Knowledge of the Company, there is no other pending or threatened Claim, that any of the Third Party IP is invalid or contesting the ownership of the Third Party IP or the right of the Company to Exploit any of the Third Party IP, nor is there any basis for any such Claim. The Company has not received any notice or Claim (whether written or oral) regarding any offer to license or any infringement, misappropriation, violation, misuse, abuse or other interference of or with any third party Intellectual Property Right by the Company or the Company IP or claiming that any other Person has any such Claim with respect thereto, nor is there any basis for any such Claim. The Company has not received any oral or written opinions of counsel relating to infringement, invalidity, or unenforceability of any Company IP.
(ii) To the Knowledge of the Company, there is and has been no unauthorized use, unauthorized disclosure, infringement, violation or misappropriation of any Company-Owned IP by any Person. Neither the Company nor any shareholder of the Company has received any notice (whether written or oral) that any Person is infringing, violating or misappropriating any Company IP or otherwise making any unauthorized use or disclosure of any Company IP, nor is there any basis for any such Claim. To the Knowledge of the Company, no such infringement, violation, misappropriation, use or disclosure is occurring or has occurred with respect to Third Party IP.
(iii) All Company-Owned IP was developed solely by either (A) employees of the Company acting within the scope of their employment, or (B) by contractors or other third parties who have validly and irrevocably assigned all of their rights, including all Intellectual Property Rights therein, to the Company in a manner compliant with Section 2.11(f). To the extent any such Technology or Intellectual Property Right relates to Company IP Registrations, to the maximum extent provided for by, and in accordance with, Law, the Company has recorded each such assignment with the relevant Governmental Body.
(e) Confidentiality. The Company (i) has taken commercially reasonable and appropriate steps to maintain the confidentiality of its confidential and proprietary information and data, (ii) has not disclosed confidential or proprietary information to any Person other than an officer, director, employee, consultant, or customer of the Company and under a written nondisclosure agreement, and (iii) has not deposited, disclosed or delivered to any Person, or agreed to or permitted the deposit, disclosure or delivery to any Person of, any Source Code. No event has occurred, and no circumstances or
conditions exist, that with or without notice, lapse of time or both, will, or could reasonably be expected to, result in the disclosure or delivery to any Person of any Source Code. The Company is not in breach of any Contract related to the protection of confidential information of any Person.
(f) Agreements with Employees and Contractors.
(i) Except as set forth in Schedule 2.11(f)(i) to the Company Disclosure Schedule each current or former director, officer, employee, consultant, advisor and contractor who has been involved in, or who contributed to, the creation or development of any Company-Owned IP for or on behalf of the Company has executed and delivered to the Company a valid and enforceable (A) assignment of all rights, title and interests that such Person may have, may have had or may hereafter acquire in or to such Company-Owned IP and a valid and enforceable waiver of any and all rights (including moral rights) that such Person may have therein in the form provided to Parent (a “Company PIAA”) and (B) nondisclosure, noncompetition, nonsolicitation and nonhire agreement in the form provided to Parent (together with the Company PIAA, the “Company IP Protection Agreements”).
(ii) Schedule 2.11(f)(ii) to the Company Disclosure Schedule sets forth each assignment, nondisclosure, noncompetition, nonsolicitation or nonhire agreement in force between the Company and any of the Company’s consultants or contractors other than those in the form of the Company IP Protection Agreements. An accurate and complete copy of each such assignment, nondisclosure, noncompetition, nonsolicitation, and nonhire agreement has been provided to Parent.
(iii) No current or former director, officer, employee, consultant, advisor or contractor of the Company (A) has any right, license, claim, moral right, or interest whatsoever in or with respect to any of the Company-Owned IP, (B) to the Knowledge of the Company, is in violation of any provision or covenant of any Contract with any Person by virtue of such director’s, officer’s, employee’s, consultant’s or contractor’s being employed by, performing services for, the Company, (C) is obligated pursuant to any provision or covenant of any Contract with any Person to assign or convey any right, title or interest in or to the Company-Owned IP to such Person or (D) has used equipment, facilities or resources, other than equipment, facilities or resources owned, licensed or controlled by the Company or the applicable director, officer, employee, consultant, advisor or contractor, in connection with any services or work performed for the Company by such director, officer, employee, consultant, advisor or contractor.
(g) Open Source.
(i) Except as set forth in Schedule 2.11(g)(i) to the Company Disclosure Schedule, the Company has not done either of the following in a manner that requires any of the Company-Owned IP, or any portion thereof, to be subject to any Copyleft License: (A) incorporated any Open Source Materials into, or used, linked to or combined with any Open Source Materials with, any Company-Owned IP; or (B) distributed any Open Source Materials in conjunction with or for use with any Company-Owned IP.
(ii) The Company is in compliance with the terms of all relevant licenses for all Open Source Materials used by the Company, including all copyright notice and attribution requirements, and all requirements to offer access to source code.
(h) Generative AI. Schedule 2.11(h) to the Company Disclosure Schedule sets forth all third party Generative AI Tools used by the Company, together with the license terms applicable to each such Generative AI Tool, and the purposes for which the Company has used each such Generative
AI Tool (including what outputs the Company has generated and how it uses the outputs). The Company subjects any software outputs from Generative AI Tools to its standard code review process prior to production, including scans for Open Source Software and security vulnerabilities. The Company has not used Generative AI Tools in its business, including in the development of any Company products or services, to generate any Technology which the Company intended to maintain as proprietary, or which is otherwise material to the Company, and has not included any confidential or proprietary information of the Company in any prompts or inputs into any Generative AI Tools. The Company uses all Generative AI Tools in compliance with the applicable license terms.
(i) Warranty against Defects. All Company products and services are free from material defects and substantially conform to the applicable specifications, documentation and samples therefor. The Software included in the Company-Owned IP does not and shall not contain (a) any clock, timer, counter, or other limiting or disabling code, design, routine or any viruses, Trojan horses, or other disabling or disruptive codes or commands that would cause such Software to be erased, made inoperable or otherwise rendered incapable of performing in accordance with its performance specifications and descriptions or otherwise limit or restrict the Company’s or any Person’s ability to use such Software or the Company IP, including after a specific or random number of years or copies, or (b) any back doors or other undocumented access mechanism allowing unauthorized access to, and viewing, manipulation, modification or other changes to, such Software or Company IP.
(j) Effect of Transaction on Company IP Agreements.
(i) The consummation of the transactions contemplated by this Agreement will neither violate nor result in the breach, modification, cancellation, termination or suspension of any Company IP Agreement. After the Closing, the Company will have the right to exercise all of the Company’s rights under all Company IP Agreements, to the same extent the Company would have been able to had the transactions contemplated by this Agreement not occurred and without being required to pay any additional amounts or consideration other than fees, royalties or payments which the Company would otherwise be required to pay had such transactions contemplated hereby not occurred.
(ii) Neither this Agreement nor the transactions contemplated by this Agreement, will result in (A) any third party’s being granted rights or access to, or the placement in or release from escrow of, Source Code, (B) the granting by Parent or any of its Affiliates to any third party any Company Intellectual Property Right or any other proprietary right, (C) Parent or any of its Affiliates being bound by, or subject to, any noncompete or other restriction on the operation or scope of its business, or (D) Parent or any of its Affiliates being obligated to pay any royalties or other amounts to any third party in excess of those payable by the Company before the Closing.
(k) Privacy.
(i) Except as described on Schedule 2.11(k)(i) to the Company Disclosure Schedule, the Company has, and at all times over the last five years, complied, with all applicable (A) Privacy Laws, (B) terms of any Contract by which the Company is bound relating to privacy, information security, or Processing of Sensitive Data (including without limitation data processing agreements, information security schedules, and data transfer agreements), (C) industry standards relating to privacy and/or security applicable to the Company or with which the Company has otherwise agreed to comply or represented its compliance, (D) Privacy Policies, and (E) the privacy and security-related requirements of any self-regulatory organizations, certifications, or frameworks to which the Company belongs or with which the Company has agreed to comply (collectively, (A)-(E) are the “Privacy Requirements”).
(ii) Except as described on Schedule 2.11(k)(ii) to the Company Disclosure Schedule, the Company has, and at all times over the last five years, provided legally adequate notice of its privacy and security practices. The Company’s privacy and security practices and Processing of Personal Data conform, and at all times have conformed, to all Privacy Policies. Except as described on Schedule 2.11(k)(ii) to the Company Disclosure Schedule, the Company has, over the last five years, to the extent required by the Privacy Requirements, posted, provided, or made available, Privacy Policies on the Company’s websites, mobile applications, and where otherwise required under, and in a manner that complies with, all applicable Privacy Requirements. No disclosure made or contained in any Privacy Policy is, or has been, materially inaccurate, incomplete, misleading, or deceptive in any way (including without limitation by omission), or has violated Privacy Laws. The Company has made available to Parent true, correct and complete copies of all Privacy Policies. Without limiting the generality of the foregoing, there are no, and have been no, actual or threatened actions contesting or challenging the Company’s rights or abilities to Process Personal Data.
(iii) The Company has contractually obligated all third parties that, on behalf of the Company, Process or have access to Sensitive Data or IT Systems, to (A) comply with Privacy Laws; (B) Process Sensitive Data only in accordance with the instructions of the Company; (C) comply with Privacy Policies; (D) implement and maintain reasonable and appropriate measures to protect and secure Sensitive Data (including without limitation from Data Breaches); and (E) restrict access to and use of Sensitive Data to those authorized or required under the servicing, outsourcing, processing, or similar arrangement. To the Knowledge of the Company, no third parties with access to Sensitive Data or IT Systems have failed to comply with any such obligations. The Company does not, and does not permit any third parties with access to Personal Data to, use such data for third-party marketing or advertising purposes.
(iv) The Company has sufficient rights, consents, licenses, and authority, including without limitation under applicable Privacy Requirements, to permit the Processing of Personal Data by or for the Company as currently conducted and as contemplated to be conducted after the Closing Date.
(v) The Company has: (A) provided all notices and obtained all necessary consents, in each case, as required for its Processing of Personal Data under applicable Privacy Requirements, and (B) complied with its obligations under any Contract, agreement, permit, license, government filing or other obligation regarding its Processing of Personal Data.
(vi) To the extent required by applicable Privacy Requirements, the Company maintains records of individuals’ marketing communications and other privacy preferences in a format that reasonably enables the Company to honor such preferences and requests within the timeframes required.
(vii) Neither the execution, delivery, or performance of this Agreement, nor the consummation of the transactions contemplated by this Agreement, nor the disclosure or transfer of Sensitive Data to Buyer Entity in connection with the transactions contemplated by this Agreement, nor the intended purposes for Processing of Personal Data after the Closing Date, will violate any Privacy Requirements, or require notice to or consent from any Person or result in any Order or Contract with any Governmental Body becoming applicable to Buyer Entity.
(viii) The Company is not subject to any Claim, Order or Contract with any Governmental Body or other Person which restricts, impairs, encumbers, hinders, or imposes requirements in connection with, its Processing of any Personal Data.
(ix) The Company has not transferred any Personal Data across any national borders except in compliance with Privacy Requirements.
(x) Except as described on Schedule to the Company Disclosure Schedule, there is not, and has not been, any Claim or other allegation involving the Company or any Person Processing Sensitive Data for or on behalf of the Company by any Governmental Body or other Person relating to the Company’s privacy or data security practices, the security of any Sensitive Data or IT Systems or the Processing of Sensitive Data, except in each case where such Claim or other allegation is not reasonably likely to result in material Damages to the Company following the Closing.
(xi) The IT Systems are, and have at all times over the last five years been, reasonably sufficient for the operation of the business of the Company, including without limitation as to capacity, scalability, and ability to process current peak volumes in a timely manner.
(xii) The IT Systems are in good working condition to effectively perform all computing, information technology and data processing operations necessary for the operation of the business of the Company as currently conducted and as currently anticipated to be conducted immediately after the Closing Date. Since January 1, 2020, the Company has not experienced any material disruption to, or material interruption in, the conduct of its business attributable, in whole or in part, to a defect, error, or other failure or deficiency of any IT System. The Company has, since January 1, 2020, implemented and maintained reasonable and appropriate business continuity and disaster recovery plans relating to IT Systems and Sensitive Data, with no results indicating any material deficiencies or failures to meet industry standard benchmarks for disaster recovery.
(xiii) The Company has, since January 1, 2020, implemented, maintained, and complied with a reasonable written information security program that (A) includes reasonable and appropriate administrative, technical, physical, security and organizational measures, controls, policies and safeguards, (B) complies with all Privacy Requirements, (C) preserves and protects the confidentiality, availability, security, and integrity of all IT Systems and Sensitive Data, (D) identifies internal and external risks to the security of the IT Systems and Sensitive Data, (E) provides for the performance and documentation of privacy and information security risk assessments and management procedures of the Company, (F) adheres to industry best practices pertaining to secure programming techniques, and (G) detects, prevents, and mitigates Data Breaches and security vulnerabilities (the “Security Program”). All of the Company’s employees, contractors, and other personnel who have access to Sensitive Data or IT Systems, have received appropriate training with respect to compliance with applicable Privacy Requirements and the Security Program.
(xiv) The Company has not experienced Data Breaches. The Company has not received any written claim or written notice from any Person, Governmental Body, or other third party that a Data Breach may have occurred or is being investigated. No circumstance has arisen that Privacy Requirements would require or have required the Company to notify a Person, Governmental Body, or other third party of a Data Breach.
(xv) The Company has at all times implemented and maintained a reasonable and appropriate vulnerability management program to detect, manage, mitigate, and patch security bugs,
vulnerabilities, defects, and Malicious Code in the IT Systems. The Company has at all times taken and, if applicable, is currently taking prompt, appropriate action (including without limitation, where appropriate, eliminating or mitigating security risks, threats, and vulnerabilities to a reasonable and appropriate level) in response to all risks, threats and vulnerabilities identified in assessments, scans, penetration tests, or other analyses, monitoring and detection related to the Company or the IT Systems or about which the Company is otherwise aware. The Company has not identified and is not otherwise aware of any security vulnerabilities affecting IT Systems that have not been fully remediated (or are in the process of being fully remediated). No IT System contains any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “malware,” “ransomware,” “spyware” or “adware” (as such terms are commonly understood in the software industry) or any other code designed or intended to have or capable of performing or facilitating, any of the following functions: (i) improperly disrupting, disabling, or harming the operation of, or providing unauthorized access to, data or a computer system or network or other device on which such code is stored, installed or executed; or (ii) compromising the privacy or data security of data or a user or damaging or destroying any data or file without the user’s consent (collectively, “Malicious Code”). The Company has at all times implemented and maintained reasonable and appropriate measures to prevent and detect the introduction of Malicious Code into the IT Systems, including without limitation, the deployment of an industry standard, up-to-date, Malicious Code detection, quarantining and remediation application.
(xvi) The Company (A) does not collect or maintain “bulk U.S. sensitive personal data”; (B) is not a “covered person”; and (C) shall not allow for “access” to any “bulk U.S. sensitive personal data” by any “covered person” (in each case, (A) through (C) as such terms are defined by the final rule promulgated by the U.S. Department of Justice titled “Preventing Access to U.S. Sensitive Personal Data and Government-Related Data by Countries of Concern or Covered Persons,” 90 Fed. Reg. 1636 (Jan. 8, 2025) codified at 28 C.F.R. § 202, including any amendments thereto and guidance issued thereunder).
(l) Government Rights. Except for the government participants set forth in Schedule 2.11(l) to the Company Disclosure Schedule (each, a “Government Participant”), (a) no funding, resources, personnel, or facilities of a university, college, or other educational institution or research center was used in the development of any Company-Owned IP, and (b) no current or former director, officer, employee, consultant, advisor or contractor of the Company who was involved in, or who contributed to, the creation or development of any Company-Owned IP, has performed services for any university, college, or other educational institution or research center during a period of time during which such director, officer, employee, consultant, advisor or contractor was also performing services for the Company. The Company and each of its Subsidiaries has provided to Parent true and complete copies of all documents that relate in any way to the participation by any Government Participant in the development of any Company-Owned IP, and no Government Participant has or retains any right, title or interest of any kind in or to any Company-Owned IP by virtue of such participation or otherwise, other than general government purpose rights or as otherwise set forth on Schedule 2.11(l) to the Company Disclosure Schedule.
(m) Participation in Standardization Bodies. Neither the Company nor any previous owner of any Company-Owned IP is nor has ever been, a member or promoter of, or a contributor to or made any commitments or agreements regarding any patent pool, industry standards body, standard setting organization, industry or other trade association or similar organization (each, a “Standardization Organization”), in each case that requires or obligates or could compel, the Company or Parent to grant or offer to any other Person any license or other right to Company-Owned IP, including any future Technology or Intellectual Property Rights developed, conceived, made or reduced to practice
by the Company or Parent or their respective Affiliates after the Closing Date. Neither the Company nor any Company-Owned IP is subject to any licensing, assignment, contribution, disclosure or other requirements or restrictions of any Standardization Organization. The Company has delivered to Parent accurate and complete copies of all governing documents and other Contracts (including charter, bylaws, and participation guidelines) relating to the Company’s membership or contribution to any Standardization Organization.
2.12 Contracts.
(a) Schedule 2.12(a) to the Company Disclosure Schedule, sets forth an accurate and complete list of the following with respect to the Company (each, a “Material Contract”):
(i) each Contract to which the Company is a party or by which the Company is bound providing for potential payments by or to the Company in excess of $1,000,000;
(ii) each Contract relating to Debt;
(iii) each Company IP Agreements, separately identified as Outbound Licenses and Inbound Licenses;
(iv) each Contract, other than Contracts with customers, that cannot be canceled by the Company with no more than 30 days’ notice without liability, penalty or premium;
(v) each Contract with a noncompetition, nonsolicitation, “most favored nations” pricing or exclusivity provision or other provision that would (or would purport to) prevent, restrict, modify or limit in any way the Company, Parent or any of their respective Affiliates from carrying on their respective businesses in any manner or in any geographic location;
(vi) each Contract relating to or establishing a joint venture, partnership or limited liability company or that involves a sharing of profits or revenue with other Persons or that provides for the payment of referral fees or bounties;
(vii) each Government Contract;
(viii) each Contract with any Government Participant;
(ix) each Contract in which the Company agrees to maintain any insurance outside of current coverage limits;
(x) each Contract granting a power of attorney, agency or similar authority to another Person;
(xi) each Contract that subjects or binds (or purports to subject or bind) any Affiliate of the Company (including, after the Closing, Parent and its Affiliates) to any nonsolicit, nonhire, noncompetition or licensing obligation, covenant not to assert/sue or other restriction on or modification of their businesses;
(xii) each Contract for, contemplating or relating to the acquisition of any business or any corporation, partnership, joint venture, limited liability company, association or other
business organization or division thereof, except purchases of inventory, supplies and raw materials in the ordinary course of business consistent with past practice;
(xiii) each Contract for the disposition of any significant portion of the assets or business of the Company;
(xiv) each Contract providing for bonus, relocation incentive, commission, or other similar payments to any current employee, independent contractor, or consultant of the Company;
(xv) each Contract with any labor union, works council, or other labor organization, group or association representing any employee or individual service provider of the Company;
(xvi) each Contract with any employee, independent contractor, or consultant of the Company providing for severance payments or benefits or advance notice of termination;
(xvii) each Contract providing for a retention payment, continuation of fringe benefits, accelerated vesting, change in control bonus or award, or other similar payments or benefits;
(xviii) each Contract with an individual independent contractor or consultant or other similar arrangements related to the performance of services to the Company by non-employees;
(xix) each lease, sublease, rental agreement, contract of sale, tenancies, or licenses to which the Real Property is subject;
(xx) each Contract for the sale or exclusive license of any of the assets or properties of the Company or for the grant to any Person of any option, right of first refusal, right of first offer, right of first negotiation, or preferential or any other right to purchase such assets or properties; and
(xxi) all other Contracts that are material to the Company or otherwise necessary for the conduct of its business as conducted and as currently proposed to be conducted.
(b) All Contracts to which the Company is a party or by which the Company is bound are in written form and are valid, binding and enforceable in accordance with their terms and are in full force and effect. The Company has performed all obligations imposed on it under such Contracts, and neither the Company nor any other party thereto is in default thereunder, nor is there any event that with notice or lapse of time, or both, would constitute a default by the Company or, to the Knowledge of the Company, any other party thereunder. There is not any material disagreement or dispute with any other party to any Material Contract, nor is there any pending request for amendment of any Material Contract. The Company has not received any notification that any party to a Material Contract intends to cancel, terminate, materially modify, refuse to perform or refuse to renew such Material Contract (if such Material Contract is renewable). The Company has provided to Parent true and complete copies of all Material Contracts and all other Contracts required to be listed in the Company Disclosure Schedule.
2.13 Claims and Orders.
(a) Except as described on Schedule 2.13to the Company Disclosure Schedule, there are no, and since January 1, 2022 there have been no, Claims pending or involving or, to the Knowledge of the Company, threatened against the Company, or any officer, director, employee, Affiliate or representative thereof related, directly or indirectly to the Company. No portion of the Company’s
business is currently operating under or subject to any order, award, stipulation, judgment, writ, decree, determination or injunction of any court, arbitrator, panel or other Governmental Body.
(b) To the Knowledge of the Company, (i) no director, officer or current employee of the Company, nor any former employee of the Company during the course of or arising out of such employment, has been the subject of a criminal proceeding, (ii) no petition under the federal bankruptcy Laws or any state or foreign insolvency Laws has been filed by or against, or a receiver or similar officer appointed for, any director or officer of the Company, (iii) no director, officer or current employee of the Company, nor any former employee of the Company during the course of or arising out of such employment, has ever been found by any Governmental Body to have violated any Laws, and (iv) no director, officer or current employee of the Company, nor any former employee of the Company during the course of or arising out of such employment, is the subject of any order, judgment or decree of, or has entered into any agreement with, any Governmental Body permanently or temporarily enjoining him or her, or otherwise limiting him or her, from engaging in any business, profession or business practice.
2.14 Licenses; Compliance with Laws.
(a) The Company has received all approvals, authorizations, consents, licenses, orders, registrations and permits of all Governmental Bodies necessary for the conduct of the Company’s business (the “Company Licenses”). Schedule 2.14(a) to the Company Disclosure Schedule sets forth a list of the Company Licenses. The Company is and at all times has been in compliance with all federal, state, local and foreign Laws applicable to it, its employees or its business or property. Except as described on Schedule 2.14(a) to the Company Disclosure Schedule, no civil, criminal, arbitration, administrative or other proceeding or investigation is pending or, to the Knowledge of the Company, threatened by or against the Company or any Person for whose, and referable to whose, acts or defaults the Company may be vicariously liable.
(b) None of the Company or any of its officers, directors or employees, nor to the Knowledge of the Company, any agent or other third party representative acting on behalf of any of the Company is currently, or has been: (i) a Sanctioned Person, (ii) organized, resident or located in a Sanctioned Country, (iii) engaging in any dealings or transactions with any Sanctioned Person or in any Sanctioned Country, to the extent such activities violate applicable Sanctions Laws or Export-Import Laws, (iv) engaging in any export, re-export, transfer or provision of any goods, software, technology, data or service without, or exceeding the scope of, any required or applicable licenses or authorizations under applicable Export-Import Laws, or (v) otherwise in violation of applicable Sanctions Laws, Export-Import Laws, or the anti-boycott Laws administered by the U.S. Department of Commerce and the IRS (collectively, “Trade Control Laws”).
(c) None of the Company or any of its officers, directors or employees, nor to the Knowledge of the Company, any agent or other third party representative acting on behalf of the Company, has made any unlawful payment or given, offered, promised, or authorized or agreed to give, any money or thing of value, directly or indirectly, to any Government Official or other Person in violation of any applicable Anti-Corruption Laws. The Company has maintained complete and accurate books and records, including records of payments to any agents, consultants, representatives, third parties and Government Officials.
(d) The Company has not, in connection with or relating to the business of the Company, received from any Governmental Body or any other Person any notice, inquiry, or internal or external allegation; made any voluntary or involuntary disclosure to a Governmental Body; or conducted
any internal investigation or audit concerning any actual or potential violation or wrongdoing related to Trade Control Laws or Anti-Corruption Laws.
2.15 Taxes.
(a) The Company has (i) timely filed with each appropriate Governmental Body all Tax Returns required to be filed by or with respect to it, and all such Tax Returns are accurate and complete in all respects and have been prepared in compliance with Law, and (ii) fully and timely paid all Taxes required to be paid by the Company (whether or not such Taxes have been reflected on any Tax Return). The Company has (i) withheld (within the time and in the manner prescribed by Law) all Taxes required to be so withheld, (ii) paid such amounts over to the appropriate Governmental Body in compliance with all applicable Law, and (iii) timely filed all withholding and information Tax Returns required to be filed by the Company. There is no claim for Taxes (other than Taxes not yet due and payable) that has resulted in an Encumbrance against any of the assets of the Company. All Liabilities for unpaid Taxes of the Company for periods (or portions of periods) through the date of the Company Balance Sheet are reflected on the face of the Company Balance Sheet (rather than in any notes thereto). The Company does not have any Liability for unpaid Taxes accruing after the date of the Company Balance Sheet except for Taxes arising in the ordinary course of business consistent with past practice.
(b) (i) There is no past pending or threatened Claim by any Governmental Body with respect to Taxes or any Tax Return relating to the Company; (ii) no extension or waiver of the limitation period applicable to any assessment of Taxes of the Company is in effect or has been requested; (iii) there is no agreement between the Company and any Governmental Body to any extension of time for filing any Tax Return that has not been filed; and (iv) the Company is not or will not be required to include any adjustment in taxable income for any Tax period pursuant to Section 481 or 263A of the Code or any comparable provision under state or foreign Tax Laws as a result of transactions or events occurring, or accounting methods employed, before the date of this Agreement.
(c) The Company has not received from any Governmental Body (including in jurisdictions where the Company has not filed Tax Returns) any (i) notice indicating an intent to open an enquiry, audit or other review with respect to Taxes, and to the Knowledge of the Company, no such enquiry, audit or other review is pending with respect to the Company, (ii) request for information related to Tax matters, or (iii) notice of deficiency or proposed adjustment for any amount of Tax proposed, asserted, or assessed by any Governmental Body against the Company that has not been fully paid or fully settled.
(d) Neither Parent (solely as a result of its acquisition of the Company) nor the Company will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) change in method of accounting, or use of an improper method of accounting, for a Taxable period ending on or before the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or before the Closing Date; (iii) intercompany transactions (including any intercompany transaction subject to Section 367 or 482 of the Code) or excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) with respect to a transaction occurring on or before the Closing Date; (iv) installment sale made or open transaction entered into before the Closing Date; (v) prepaid amount received or deferred revenue accrued on or before the Closing Date; (vi) election under Section 965(h) of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law); or (vii) payment, loan,
event or other transaction that occurred prior to the Closing but the payment and/or liability for which is deferred or forgiven pursuant to any Pandemic Response Law.
(e) The Company (and any predecessor of the Company) has (i) never been a member of any Affiliated Group, (ii) never been a party to or bound by any Tax sharing, Tax indemnity, Tax allocation or similar agreement relating to allocating, indemnification or sharing the payment of, or Liability for, Taxes, (iii) no Liability for the Taxes of any Person (other than the Company) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign Law, including any arrangement for group or consortium relief or similar arrangement) as a transferee or successor, by Contract or otherwise, or (iv) never been a party to any joint venture, partnership or other Contract or arrangement that could be treated as a partnership for U.S. federal income Tax purposes.
(f) The Company is not (or has ever been) subject to Tax in any jurisdiction other than the United States, and no Claim has been made by a Governmental Body in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to Tax by that jurisdiction.
(g) The Company has not made any payment, is not obligated to make any payment, nor is a party to (or a participating employer in) any Contract that could obligate the Company or Parent to make any payment that constitutes or would constitute an “excess parachute payment,” as defined in Section 280G of the Code (or any similar provision of state, local or foreign Law). No payment to any person will be characterized as a “parachute payment,” within the meaning of Section 280G(b)(2) of the Code due in whole or in part to the transactions contemplated by this Agreement. None of the Company, Parent or any Affiliate of Parent shall be obligated to pay or reimburse any Person for any Taxes imposed under Section 4999 of the Code (or any comparable provision or provisions of state, local or foreign Law) as a result of any Contract currently in effect.
(h) There are no shares of Common Stock that were issued in connection with the performance of services and subject to a substantial risk of forfeiture within the meaning of Section 83 of the Code and the Treasury Regulations thereunder for which a valid and timely election under Section 83(b) of the Code was not made. The Company has delivered to Parent correct and complete copies of all election statements under Section 83(b) of the Code, together with evidence of timely filing of such election statements with the appropriate IRS service center with respect to any share of Common Stock that was initially subject to a substantial risk of forfeiture within the meaning of Section 83 of the Code and the Treasury Regulations thereunder. No share of Common Stock is a “covered security” within the meaning of Treasury Regulation Section 1.6045-1(a)(15).
(i) The Company has never been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code.
(j) The Company has delivered or made available to Parent correct and complete copies of all income, sales and use, value-added tax, and other material Tax Returns of the Company for which the statute of limitations has not expired, and all examination reports and statements of deficiencies, adjustments and proposed deficiencies in respect of Taxes of the Company.
(k) Schedule 2.15(k) to the Company Disclosure Schedule sets forth each jurisdiction where the Company will be required to file a Tax Return after the Closing with respect to any Pre-Closing Tax Period, including the type of Tax Return and the type of Tax required to be paid.
(l) The Company has not distributed stock of another Person, nor had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 or Section 361 of the Code.
(m) No Tax ruling, clearance or consent has been issued to the Company, the Company has not applied for any Tax ruling, clearance or consent. No power of attorney with respect to Taxes has been granted with respect to the Company.
(n) The Company has not participated in (i) a “reportable transaction” or “listed transaction” within the meaning of Section 1.6011-4(c) of the Treasury Regulations, or (ii) any transaction that would reasonably be likely to require the filing of an IRS Schedule UTP (determined without regard to any asset threshold that may avoid the requirement of filing such schedule). The Company has disclosed on its U.S. federal income Tax Returns all positions taken therein that could give rise to a substantial understatement of U.S. federal income Tax within the meaning of Section 6662 of the Code.
(o) The Company has provided to Parent all documentation relating to any applicable Tax holidays or incentives that have current applicability to the Company. The Company is in compliance with the requirements for any applicable Tax holidays or incentives and none of the Tax holidays or incentives will be jeopardized by the transactions contemplated by this Agreement nor will any benefits received prior to the Closing under any such Tax holidays or incentives be subject to clawback or reimbursement after the Closing. The Company is in compliance with all applicable transfer pricing Laws and regulations, including the execution and maintenance of contemporaneous documentation substantiating the transfer pricing practices and methodology of the Company (as required under Section 482 of the Code and any other applicable federal, state, local or foreign Laws). All transactions between the Company and any related parties have been effected on an arm’s length basis.
(p) The Company has in its possession official foreign government receipts for any Taxes paid by it to any non-U.S. taxing authority for which receipts have been provided or are customarily provided.
(q) The Company is and always has been properly classified as corporation under Subchapter C of the Code for U.S. federal income tax purposes, and has had comparable status under any applicable Law of any state, local or non-U.S. jurisdiction in which it was required to file any Tax Return at the time it was required to file such Tax Return. The Company has never owned directly or indirectly an interest in a corporation, association, joint venture, partnership, limited liability company or other “business entity” within the meaning of Treasury Regulation Section 301.7701-2(a).
(r) To the extent required by applicable Law, the Company has timely filed all reports and have created or retained all records required under Sections 6038, 6038A, 6038B, 6038C, 6046 and 6046A of the Code (and any comparable provisions of any foreign Tax Law). The Company has not transferred intangible property the transfer of which would be subject to the rules of Section 367(d) of the Code. The Company is not subject to any gain recognition agreement under Section 367 of the Code.
(s) The Company is, where it is required by applicable Law to have been so registered, a duly registered taxable person registered for the purposes of any value added sales, use or similar Tax. The Company has collected, remitted and reported to the appropriate Tax authority all sales, use and value added Taxes required to be so collected, remitted or reported pursuant to all applicable Tax Laws. The Company has complied in all material respects with all applicable Laws relating to record
retention (including, to the extent necessary to claim any exemption from sales or value added Tax collection and maintaining adequate and current resale certificates to support any such claimed exemption).
(t) The Company uses the accrual method of accounting for income Tax purposes.
(u) There is no property or obligation of the Company, including uncashed checks to vendors, customers or employees, non-refunded overpayments, credits or unclaimed amounts or intangibles, that is currently escheatable or reportable as unclaimed property to any Governmental Body under any applicable escheatment, unclaimed property or similar Laws.
(v) The Company has not availed itself of relief pursuant to any other Pandemic Response Laws that could reasonably be expected to impact the Tax payment or reporting obligations of the Company after the Closing Date. The Company has not received or applied for the “employee retention credit” as described in Section 2301 of the CARES Act or Section 3134 of the Code.
(w) The Company does not maintain, nor has it ever been a party to, any Employee Benefit Plan, agreement, arrangement, or other Contract that is a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code. Neither the Company nor any ERISA Affiliate is party to any agreement or arrangement with any Person that requires the Company or any ERISA Affiliate to pay a tax gross-up for Taxes due under Section 409A of the Code.
2.16 Insider Interests. No shareholder of the Company, director, officer, employee, consultant, advisor, contractor or Affiliate (or, to the Knowledge of the Company, any Affiliate of the foregoing) of the Company has any material interest (other than as an shareholder of the Company) (a) in any Contract relating to the Company, its present or prospective businesses or its operations, or in any other asset used in the business of the Company, or (b) in any Person that presently (i) provides any services, produces or sells any products or product lines, or engages in any activity that is the same, similar to or competitive with any activity or business in which the Company is now engaged or proposes to engage or (ii) is a supplier, customer or creditor of the Company.
2.17 Insurance.
(a) Schedule 2.17(a) to the Company Disclosure Schedule sets forth an accurate and complete list of all insurance policies maintained by the Company.
(b) Each such insurance policy is in full force and effect and will continue in full force and effect after the consummation of the transactions contemplated by this Agreement. All premiums due thereon have been timely paid. The Company has not been refused any insurance, nor has its coverage been limited, by any insurance carrier. The Company maintains insurance policies with a scope and amount sufficient to satisfy all applicable Laws and all Contracts to which the Company is a party or by which the Company is bound. There are no claims outstanding as of the date hereof and no circumstances exist which are likely to give rise to any claim under such insurance policies. Further, no notice has been issued to the Company regarding cancellation of, or material premium increases under the insurance policies.
2.18 Brokers or Finders. The Company does not and will not have, directly or indirectly, any Liability for brokers’ or finders’ fees or any similar charges in connection with this Agreement or any transaction contemplated hereby other than with Philpott Ball & Werner, LLC.
2.19 Bank Accounts. Schedule 2.19 to the Company Disclosure Schedule sets forth an accurate and complete (i) list of the names and locations of all banks, trust companies, securities brokers, online money transmitters and other financial institutions at which the Company has an account or safe deposit box or maintains a banking, custodial, trading or other similar relationship, (ii) list and description of each such account, box and relationship, indicating in each case the account number and the names of the officers, employees, agents or other similar representatives of the Company having signatory power with respect thereto, (iii) list of all existing and valid payment instruments and authorizations related to the accounts, boxes and relationships required to be listed under clause (ii) above, including the names of the officers, employees, agents or other similar representatives of the Company, or third parties controlling such instruments, and (iv) list of each investment of the Company held through or in each such account, box and relationship, including the name of the record and beneficial owner thereof, the location of the certificates, if any, the maturity date, if any, and any stock or bond powers or other authority for transfer granted with respect thereto.
2.20 Customers and Suppliers.
(a) Schedule 2.20(a) to the Company Disclosure Schedule sets forth an accurate and complete list of the top 20 customers of the Company during the 12 month period ending on the date hereof, showing the approximate total revenues from each such customer during such 12 month period. No such customer has during the last 12 months decreased or limited materially or, to the Knowledge of the Company, threatened to decrease or limit materially, its purchase of the products or services of the Company. The Company has not received any notice of, and, to the Knowledge of the Company, no circumstance exists that would cause the Company to expect any, material modification to the relationship of the Company with any customer, nor is there or has there been, during the last 12 months, any material dispute with or Claim by any of the customers of the Company concerning the purchase of the services of the Company.
(b) Schedule 2.20(b) to the Company Disclosure Schedule sets forth an accurate and complete list of the top 20 suppliers or service providers of the Company and the total amount of payments made to each such supplier during the 12 month period ending on the date hereof. No such supplier or service provider has during the last 12 months decreased or limited materially or, to the Knowledge of the Company, threatened to decrease or limit materially, its supply or services to the Company. The Company has not received any notice of, and, to the Knowledge of the Company, no circumstance exists that would cause the Company to expect any, material modification to the relationship of the Company with any supplier or service provider, nor is there or has there been, during the last 12 months, any material dispute with or Claim by any of the suppliers or service providers of the Company concerning such supplier’s supply or services to the Company.
2.21 Government Contracts
(a) Schedule 2.21(a) to the Company Disclosure Schedule contains a true, complete and correct list of all Government Contracts. All Government Contracts were legally awarded and are binding on the other parties thereto. The Company has provided or made available to Parent: (A) true and materially complete copies of all Government Contracts including all modifications, purchase orders, and delivery orders issued under such Government Contracts; (B) true and complete copies of all teaming agreements and joint venture agreements entered into for the purposes of pursuing a Government Contract or Government Bid, and (C) true and complete copies of all audit reports issued to Company by a Governmental Body or other counterparty to a Government Contract in the past three (3) years. No Government Contract or Government Bid is currently the subject of, or is reasonably likely to become the
subject of any bid or award protest proceedings or stop work order, and no counterparty to any Government Contract has demonstrated an intention to make a material modification, reduce future expenditures, or refrain from exercising any options thereunder.
(b) Except as described on Schedule 2.21(b) to the Company Disclosure Schedule, with respect to each Government Contract and each Government Bid: (i) the Company has complied with all terms and conditions thereof (including those incorporated by reference); (ii) the Company has complied with all applicable Laws pertaining thereto; (iii) all representations, certifications, cost or pricing data (as defined in FAR 2.101), and warranties submitted with such Government Contract or Government Bid, were current, accurate, and complete as of their effective date, and the Company has complied with all such representations, certifications, and warranties; (iv) no Governmental Body, prime contractor, subcontractor or any other Person has notified the Company or its Representatives of an actual or alleged breach or violation of any requirement, obligation, contract term, or applicable Law pertaining to such Government Contract or Government Bid; (v) no termination for convenience, termination for default, cure notice, show cause notice, notice of cost disallowance, payment withholding, or setoff has been received by the Company; and (vi) no negative past performance evaluation or negative determination of responsibility has been received by the Company.
(c) The Company has, to the extent applicable and required, included all terms of its Government Contracts in its agreements with third parties. To the Company’s Knowledge, none of their prime contractors, subcontractors, joint venture partners, teaming partners, consultants, agents, or Representatives has violated any applicable Law or term or condition in connection with any Government Contract or Government Bid for which the Company could reasonably be expected to have material liability.
(d) No costs incurred by the Company under a Government Contract have been questioned or disallowed as a result of a finding or determination by a Governmental Body, prime contractor, or higher-tier subcontractor, and no Governmental Body, prime contractor, or higher-tier subcontractor has alleged cost or pricing data submitted by the Company to be inaccurate or incomplete or notified the Company of any intent to disallow, withheld or setoff monies due to the Company.
(e) Except as described on Schedule 2.21(e) to the Company Disclosure Schedule, in the last six (6) years: (i) the Company has received no document requests, subpoenas, search warrants, or civil investigative demands addressed to, or requesting information from, the Company or any of its Representatives with respect to any of the Government Contracts or Government Bids; (ii) neither the Company nor any of its Representatives has been under, nor is there pending or threatened any administrative, civil or criminal investigation or indictment or audit relating to the Government Contracts or Government Bids; (iii) the Company has not made or been required to make any voluntary or mandatory disclosure (including under FAR 52.203-13) to any Governmental Body relating to the Government Contracts or Government Bids; (iv) the Company has not been a party to any administrative or civil litigation relating to the Government Contracts or Government Bids; and (v) the Company has not made any payment to any Person in violation of applicable Laws relating to procurement by a Governmental Body, including those relating to bribes, gratuities, kickbacks, lobbying expenditures, political contributions and contingent fee payments.
(f) Except as described on Schedule 2.21(f) to the Company Disclosure Schedule, with respect to each Government Contract performed in the last six (6) years and each Government Bid: (i) there are no existing or threatened material claims against the Company asserted by any Governmental Body or by any prime contractor, subcontractor, vendor or other Person relating to any Government
Contract; (ii) no outstanding material disputes exist between the Company and any Governmental Body or between the Company and any prime contractor, subcontractor or vendor; and (iii) the Company has not asserted any material claim or initiated any dispute proceedings, directly or indirectly against any Governmental Body, prime contractor, subcontractor or vendor concerning any Government Contract.
(g) The Company has not used or provided to any third party any Intellectual Property Rights developed under any Government Contract for purposes other than those allowed under such Government Contract without having obtained the necessary and appropriate prior permission of the relevant Governmental Body, and the Company and its Representatives have taken all commercially reasonable steps required by its Government Contracts and applicable Law to assert, protect and support its rights in technical data, computer software, computer software documentation, inventions, and other Intellectual Property Rights so that no more than the minimum rights or licenses required will have been provided to the receiving party. With respect to the Company-Owned IP, the Company has: timely disclosed and elected title to all subject inventions, timely listed all technical data and computer software to be furnished with less than unlimited rights in any required assertions table and included the proper, and required restrictive legends on all copies of any technical data, computer software, computer software documentation, and other intellectual property delivered under any Government Contract. All such markings and rights were properly asserted and justified under the Government Contracts, and no Governmental Body, prime contractor, or higher-tier subcontractor has challenged, or has any basis for challenging, the markings and rights asserted by the Company.
(h) Neither the Company nor any of its Representatives, is currently debarred or suspended from doing business with any Governmental Body, or proposed for debarment or suspension, or otherwise ineligible to do business with any Governmental Body and, to the Knowledge of the Company, there are no facts or circumstances that would be reasonably expected to warrant the institution of debarment or suspension proceedings against the Company or any of its Representatives and, except as described on Schedule 2.21(h) to the Company Disclosure Schedule, within the last six (6) years there has not been, any claim or reasonable basis to give rise to any claim against the Company or its Representatives for fraud or under the United States civil or criminal False Claims Acts, the Procurement Integrity Act, Truthful Cost or Pricing Data Act, Buy American Act, Trade Agreements Act, or other applicable Law.
(i) Schedule 2.21(i) to the Company Disclosure Schedule sets forth a current, complete, and accurate list of all facility security clearances held by the Company held by its employees (by clearance level and number of employees only). The Company and its employees hold all facility security clearances and personnel security clearances reasonably necessary to perform the Government Contracts in accordance with the Company’s current business practices. All Facility Security Clearances and Personnel Security Clearances held by the Company, or its employees are valid and in full force and effect. The Company is in compliance with all applicable requirements regarding national security and the safeguarding of classified information, including, without limitation, those set forth in 32 C.F.R. Part 117, the National Industrial Security Program Operation Manual, Intelligence Community policies and directives, and any contractual agreements, including, without limitation, the provisions of all applicable DD254s, and including any requirements relating to the provision of notice of this Agreement or the consummation of the transactions contemplated hereby. Since January 1, 2019, and except as described on Schedule 2.21(i) to the Company Disclosure Schedule the Company has not received from a Governmental Body any rating less than “satisfactory,” as a result of a security related audit or inspection. Except as described on Schedule 2.21(i) to the Company Disclosure Schedule, the Company has not received written or to the Knowledge of the Company oral notice of, and there is no proposed or threatened, termination of any facility security clearance or personnel security clearances held by the
Company or its employees. Except as described on Schedule 2.21(i) to the Company Disclosure Schedule, the Company has complied with the applicable data security, cybersecurity, and physical security systems and procedures required by its Government Contracts, including those related to the handling of “Covered Defense Information” as required in DFARS 252.204-7012. Since January 1, 2019, the Company has not had or experienced any breach of data security or cybersecurity, whether physical or electronic. Any data security, cybersecurity or physical security breach related to any Government Contract or Government Bid has been reported to the necessary Governmental Body or higher tier contractor, as required by the terms of the Government Contract, Government Bid, or applicable Law or regulation.
(j) The Company has not provided covered telecommunications equipment or services to a Governmental Body in the performance of a Government Contract. The Company has not used covered telecommunications equipment or services, or used any equipment, system, or service that uses covered telecommunications equipment or services. For purposes of this section, the term “covered telecommunications equipment or services” shall have the meaning prescribed in FAR clause 52.204-25.
(k) Except as set forth on Schedule 2.21(k) to the Company Disclosure Schedule, no Government Contract or Government Bid required the Company to represent that it qualified, or was otherwise dependent upon the Company’s eligibility, as a small business or for any other preferential bidding status, nor was set-aside, reserved, or otherwise limited to an awardee validly qualifying for such status. Except as set forth on Schedule 2.21(k) to the Company Disclosure Schedule, none of the previously expected revenue associated with any Government Contract is expected to be diminished as a result of Company’s loss of small business or other preferential bidding status as a result of the transactions contemplated under this Agreement.
(l) The Company has not made any assignments of a Government Contract or of any interests in a Government Contract. The Company has not entered into any financing arrangements with respect to the performance of any Government Contract.
(m) Except as set forth on Schedule 2.21(m) to the Company Disclosure Schedule (i) there are no Government Contracts or Government Bids (or mitigation plans under such Government Contracts or Government Bids) that include terms that restrict the Company’s ability to bid on or perform work on future contracts or programs or for specific periods of time based upon “organizational conflicts of interest,” as defined in FAR Subpart 9.5 (“OCI”), (ii) the Company does not reasonably expect that an OCI will arise as a consequence of the consummation of the transactions contemplated hereby, and (iii) the Company is not currently subject to any OCI mitigation plans and, to the Knowledge of the Company, there are no facts or circumstances that would be reasonably expected to give rise to asserting an OCI in connection with any Government Contract or Government Bid.
(n) The Company’s cost accounting system has complied in all material respects with applicable Laws (including the FAR cost principles and Cost Accounting Standards, if and as applicable), and no Governmental Body has deemed in writing such system deficient or non-compliant with the requirements of the FAR cost principles or Cost Accounting Standards, if and as applicable. All direct and indirect costs charged under a Government Contract by the Company were in compliance in all material respects with the FAR cost principles and the Cost Accounting Standards, if and as applicable. The Company currently does not have an open audit relating to its cost accounting system.
(o) No Government Contract has incurred or currently projects losses, nor will any Government Bid, if accepted or entered into, obligate the Company to process, manufacture or deliver
products or perform services that could reasonably be expected to incur, or forecast, losses. No payment has been made by the Company or by a Person acting on the Company’s behalf to any Person (other than to any bona fide employee or agent of the Company, as defined in subpart 3.4 of the FAR), which is or was contingent upon the award of any Government Contract.
(p) The Company has no knowledge of any intentional or reckless behavior by the Company to defraud the government regarding the Company’s material compliance obligations under: (1) DFARS 252.204-7012 or (2) any other similar, material cybersecurity requirement imposed by the DOD to protect any controlled unclassified information or covered defense information that was made available to the Company in connection with any Government Contract or Government Bid underlying the investigation by the United States Department of Justice in connection with Civil Investigative Demand No. 25-771. Notwithstanding anything to the contrary in this Agreement, for purposes of the representations and warranties set forth in this Section 2.21(p), (x) “knowledge” of the Company means the knowledge of the officers of the Company, assuming such knowledge as an individual officer would have as a result of such officer’s reasonably inquiry of the senior management members of the Company that would reasonably be expected to have the best working knowledge about the matter that is the subject of the inquiry and (y) “reckless behavior” means conscious awareness of a substantial and unjustifiable risk that false representations were being made to the government.
2.22 Outbound Investment Security Program. (a) The Company either is (i) not a “person of a country of concern”; or (ii) not engaged in any “covered activity,” as these terms are defined in 31 C.F.R. Part 850, as implemented or revised from time to time (the “Outbound Investment Security Program”). (b) The Company has no intention of becoming a “person of a country of concern” that engages in any “covered activity.” (c) The Company is not, and does not intend to become, a person that directly or indirectly holds a board seat or a voting or equity interest in, or any contractual power to direct or cause the direction of the management of policies of, any “covered foreign person” as defined in the Outbound Investment Security Program.
2.23 Full Disclosure. No information furnished by the Company or any of its Representatives to Parent or its Representatives in connection with this Agreement (including the Financial Statements and all information in the Company Disclosure Schedule and the other Exhibits and schedules hereto) or the other Operative Documents, and none of the representations or warranties made by the Company herein or in the Company Disclosure Schedule, the Exhibits or schedules hereto or any Operative Document, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements so made or information so delivered not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
In order to induce the Company to enter into and perform this Agreement, Parent and Merger Sub represent and warrant to the Company, as follows.
3.1 Organization and Good Standing. Parent is a corporation duly organized, validly existing and in good standing under the Laws of Delaware and has all requisite power and authority to own, operate, and lease its properties and assets and to carry on its business as now conducted and as currently proposed to be conducted. Merger Sub is a corporation duly organized, validly existing and in good standing under the Laws of Texas.
3.2 Authority and Enforceability. Each of Parent and Merger Sub has full power and authority to execute this Agreement and the other Operative Documents to which it is (or will be) a party
and to perform its obligations hereunder and thereunder. This Agreement has been duly executed and delivery by each of Parent and Merger Sub and, assuming the due authorization, execution and delivery by each of the other parties hereto other than Parent or Merger Sub, this Agreement is the valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, and each of the other Operative Documents to which Parent or Merger Sub is (or will be) a party, when executed by Parent or Merger Sub, and assuming the due authorization, execution and delivery by each of the other parties thereto other than Parent or Merger Sub, will be the valid and binding obligation of Parent or Merger Sub, enforceable against Parent or Merger Sub in accordance with its terms except to the extent such enforceability is subject to the effect of any applicable Equitable Principles.
3.3 No Approvals; No Conflicts. The execution, delivery and performance by each of Parent and Merger Sub of this Agreement and the other Operative Documents to which Parent or Merger Sub is (or will be) a party and the consummation by the each of Parent and Merger Sub of the transactions contemplated hereby and thereby do not and will not (a) violate (with or without the giving of notice or lapse of time, or both) any Law applicable to Parent or Merger Sub, (b) require any consent, approval or authorization of, declaration, filing or registration with, or notice to, any Person other than as may be required under the HSR Act or other Antitrust Law, or (c) conflict with or result in a breach of or constitute a default under any provision of Parent’s or Merger Sub’s governing documents.
3.4 Non-Reliance. Parent and Merger Sub acknowledge, represent and agree that, except for the representations of the Company expressly set forth in this Agreement or the Ancillary Agreements to which the Company is a party, they have not relied upon the accuracy or completeness of any other express or implied representation, statement or information of any nature made or provided by or on behalf of Company.
ARTICLE IV
COVENANTS
4.1 Covenants of the Company Before Closing. From the execution of this Agreement to the earlier of the Closing or the effective time of termination of this Agreement in accordance with Article VIII, unless Parent shall otherwise agree in writing, the Company shall operate its business consistent with past practice, comply with applicable Law, pay its debts and Taxes when due, pay or perform its other obligations when due, and use commercially reasonable efforts to preserve intact the business organization of the Company, to keep available the services of the current officers, employees, consultants, and contractors of the Company, and to preserve the current relationships of the Company with and the goodwill of customers, suppliers, and other Persons with which the Company has significant business relations.
4.2 Access to Information. From the execution of this Agreement to the earlier of the Closing or the effective time of termination of this Agreement in accordance with Article VIII, the Company shall, and shall cause its officers, directors, employees, consultants, and agents to, afford the officers, employees, and agents of Parent reasonable access during normal business hours to the officers, employees, consultants, agents, properties, offices and other facilities, and books and records of the Company and shall furnish Parent with all financial, operating, and other data and information (including Tax Returns, Tax elections, and all other records and workpapers relating to Taxes) as Parent may reasonably request; provided, however, that (A) no Person shall be obligated to provide access to information if such disclosure by such Person is legally or contractually prohibited or would result in the loss of attorney client privilege by such Person; and (B) all information exchanged pursuant to this
Section 4.2, shall be held by the parties as Evaluation Material pursuant to the Confidentiality Agreement, and shall remain subject to the Confidentiality Agreement until the Closing.
4.3 Confidentiality. Except as required to comply with applicable Law, at all times on and after the date hereof, neither the Company nor any of its Representatives shall make any statements to any third party with respect to this Agreement, the existence of this Agreement or the transactions contemplated hereby (except as required to comply with such Person’s obligations pursuant to this Agreement) or disclose to any third party any confidential information of the Company or Parent; provided, however, that this provision shall not apply to disclosures by the Company or Representatives to their legal and financial advisors (provided, that the same are obligated to maintain the confidentiality of the information provided).
4.4 Regulatory Approval.
(a) Subject to the terms and conditions set forth in this Agreement, each of the Parties shall use their respective commercially reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable under applicable Antitrust Laws to consummate and make effective the transactions contemplated herein as soon as reasonably practicable, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, decisions, declarations, approvals and, expirations or terminations of waiting periods from Governmental Bodies and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain any such consent, decision, declaration, approval, clearance or waiver, or expiration or termination of a waiting period by or from, or to avoid an action or proceeding by, any Governmental Body in connection with any Antitrust Law, (ii) the obtaining of all necessary consents, authorizations, approvals or waivers from third parties, (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated herein, and (iv) promptly responding to any inquiry, request for information, documents, or other material or testimony, by a Governmental Body under applicable Antitrust Law.
(b) The Parties agree to promptly take, and cause their Affiliates to take, all advisable actions and steps to obtain all necessary consents, permits, authorizations, waivers, clearances, approvals and expirations or terminations of waiting periods are sought with respect to the transactions contemplated herein, so as to obtain such consents, permits, authorizations, waivers, clearances, approvals or termination of the waiting period under the HSR Act or under other Antitrust Laws. Notwithstanding the foregoing or any other provision of this Agreement, however, in no event shall Parent or its Affiliates be required to offer, accept or agree to, and the Company shall not, without Parent’s prior written consent, offer, accept or agree to (i) divest, license, dispose of or hold separate, by consent decree, hold separate order, or otherwise, any portion of the businesses, operations, assets or product lines of Parent, the Company or any of their respective Affiliates (or a combination of the respective businesses, operations, assets or product lines of Parent, the Company or any of their respective Affiliates), (ii) restrict, prohibit or limit the ability of Parent, the Company or any of their respective Affiliates to conduct its business or own its assets, (iii) restrain, prohibit or limit the ownership or operation by Parent, the Company or any of their respective Affiliates of all or any portion of the business or assets of Parent, the Company or any of their respective Affiliates in any part of the world, (iv) cause Parent or any of its Affiliates to divest any shares of the Company, (v) impose limitations on the ability of Parent or any of its Affiliates effectively to acquire, hold or exercise full rights of ownership of, any shares of capital stock of the Company, including the right to vote any shares of capital stock of the Company acquired or owned by Parent or any of its Affiliates on all matters properly presented to the shareholders of the Company, (vi) terminate or
modify existing relationships, contractual rights or obligations of Parent, the Company (or any of their respective Affiliates) or create any relationship, contractual rights or obligations of Parent, the Company (or any of their respective Affiliates), or (vii) litigate or participate in the litigation of any suit, claim, action, investigation or proceeding, whether judicial or administrative, brought by any Governmental Body challenging or seeking to restrain, prohibit or place conditions on the consummation of the transactions contemplated herein or the ownership or operation by Parent, the Company or any of their respective Affiliates of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted (each of the foregoing clauses “(i)” through “(vii)”, a “Burdensome Condition”).
(c) Subject to the terms and conditions of this Agreement, each of the Parties shall (and shall cause their respective Affiliates, if applicable, to), to the extent not prohibited by applicable Law, use its commercially reasonable efforts to (A) promptly keep each other informed regarding the progress and status of all submissions made to any Governmental Body with respect to the transactions contemplated by this Agreement, (B) promptly provide each other with copies of any material or substantive written communications. and material details of any oral communications with, any Governmental Body regarding the transactions contemplated by this Agreement, (C) give each other prior notice of any in person meeting or video conference and, to the extent practicable, any material or substantive oral communication, with representatives of any Governmental Body, regarding the transactions contemplated by this Agreement, (D) to the extent practicable, give each other the opportunity to consult in advance of, and consider in good faith the views of the other party in connection with, any such meeting, telephone or video conference, or other material or substantive oral or written analysis, appearance, argument, brief, communication, memorandum, opinion, presentation or proposal to be made or submitted to any such Governmental Body, (E) give each other the opportunity to attend or participate (unless prohibited by such Governmental Body) in any such meeting or communication, and (F) provide notice of any material or substantive communication to, and any proposed understanding, undertaking or agreement with, any Governmental Body with respect to any submission or otherwise with respect to the transactions contemplated by this Agreement. Materials that one party provides to the other pursuant to the paragraph may be redacted as necessary (1) to comply with contractual arrangements, (2) to protect legal privilege, or (3) to remove references concerning the valuation of the Parties. The Parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 4.4 as “outside counsel only” and such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. Notwithstanding anything herein to the contrary, Parent shall have the right to take the lead in, and set the overall strategy for coordinating with Governmental Bodies in connection with this Agreement, obtaining all consents of Governmental Bodies that are necessary, appropriate or desirable to consummate the Merger pursuant to the Antitrust Laws and resolving any claim by any Governmental Bodies under any Antitrust Law.
4.5 Tax Matters.
(a) Transfer Taxes. The Shareholders shall be liable for and shall hold Parent and its Affiliates harmless against any Transfer Taxes. The Shareholder Representative will, at the Shareholders’ expense, file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes and Shareholder Representative shall provide Parent with evidence satisfactory to Parent that such Transfer Taxes have been paid.
(b) Cooperation. Each of Parent, the Shareholder Representative, the Shareholders and the Company shall cooperate fully, as and to the extent reasonably requested by any of the others, in connection with the filing of Tax Returns of the Company and any Claim with respect to Taxes of the Company. Such cooperation shall include the retention and (upon request therefor) the provision of records and information reasonably relevant to any such Claim and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Parent and the Company agree to (i) retain all books and records with respect to Tax matters pertinent to the Company relating to any taxable period beginning before the Closing Date until expiration of the statute of limitations of the respective taxable periods plus 90 days, and to abide by all record retention agreements entered into with any taxing authority, and (ii) use commercially reasonable efforts to give the other party reasonable written notice before destroying or discarding any such books and records and, if the other party so requests, Parent and the Shareholder Representative, as the case may be, shall allow the other party to take possession of such books and records; provided, however, neither Parent nor any of its Affiliates (which will include the Company after the Closing) shall have any obligations or responsibilities with respect to such matters addressed in clause (i) of this sentence (other than with respect to agreements entered into with a Governmental Body) beyond those set forth under Parent’s general policy on records retention. The Shareholder Representative shall use reasonable best efforts to obtain any information necessary for Parent to determine the limitations, if any, under Sections 382 and 383 of the Code on the net operating loss carryforwards and tax credits of the Company in existence as of the Closing Date.
(c) Pre-Closing Tax Returns.
(i) The Company shall prepare, or cause to be prepared, and timely file, or cause to be timely filed, with the relevant Governmental Body, all Tax Returns required to be filed by the Company on or before the Closing Date, and the Company shall timely remit or cause to be timely remitted any Taxes due in respect of such Tax Returns. Except to the extent inconsistent with applicable Laws, all such Tax Returns shall be prepared and filed in a manner consistent with past practice of the Company. The Company will deliver to Parent drafts of any such Tax Returns (with copies of any relevant schedules, work papers, and other documentation then available) as soon as practicable prior to filing such Tax Return and will reflect all reasonable comments to such Tax Return timely submitted by Parent.
(ii) Parent shall prepare, or cause to be prepared, and file, or cause to be filed, all Tax Returns of the Company with respect to any Pre-Closing Tax Period required to be filed by the Company after the Closing Date (the “Buyer Prepared Tax Returns”). All Buyer Prepared Tax Returns for taxable periods that end on or before the Closing Date shall be prepared and filed in a manner consistent with past practice, except (x) as otherwise required by applicable Law as determined by Parent in its reasonable discretion, or (y) to the extent any deviation from such past practices would not reasonably be expected to give rise to a claim for indemnification of Taxes by the Indemnified Parties pursuant to this Agreement. If any such Buyer Prepared Tax Return reports a material Liability for Taxes for which indemnification by the Shareholders could be required hereunder, Parent will deliver to the Shareholder Representative as soon as practicable before the due date for such Buyer Prepared Tax Return a copy of such Tax Return; provided, however, that any failure to so submit a Buyer Prepared Tax Return shall not relieve the Shareholders of any liability for Pre-Closing Taxes with respect to such Buyer Prepared Tax Return (except and only to the extent that the Shareholder Representative demonstrates that the Shareholders have been materially prejudiced by such failure). Parent will consider in good faith any comments to such Tax Returns timely submitted by the Shareholder Representative.
(iii) To the extent any Pre-Closing Taxes (other than any such Taxes included as Debt in the determination of the Merger Consideration) are shown on any Buyer Prepared Tax Returns first required to be filed after the Closing Date, Parent shall be entitled to reimbursement from the Escrow Funds no later than two (2) Business Days prior to the due date of such payment by the Company of such Pre-Closing Taxes for (A) such Pre-Closing Taxes and (B) any reasonable out-of-pocket costs incurred by the Indemnified Parties in connection with the preparation and filing of such Tax Returns.
(d) Tax Contests.
(i) Parent shall promptly notify the Shareholder Representative of any Tax Contest; provided, however, that any failure by Parent to provide any notice under this Section 4.5(d) to the Shareholder Representative shall not relieve the Indemnifying Parties of any obligation or liability to the Indemnified Parties, except and only to the extent that the Shareholder Representative demonstrates that the Indemnifying Parties have been materially prejudiced by such failure by Parent to timely provide such notice to the Shareholder Representative.
(ii) Parent shall control all proceedings with respect to any Tax Contest; provided, that with respect to so much of such Tax Contest that relates solely to a taxable period that ends on or before the Closing Date, Parent shall seek and consider (but shall have no obligation to accept) the Shareholder Representative’s comments as to how to defend, settle or compromise any such Tax Contest (or portion thereof) for which the Shareholder Representative has delivered written confirmation to Parent acknowledging that the Indemnifying Parties are liable for all Taxes underlying such Tax Contest (or portion thereof). For the avoidance of doubt, Parent shall control all other Tax Contests in its sole discretion.
(iii) Notwithstanding anything to the contrary contained in this Agreement, in the event of any conflict or overlap between this Section 4.5(d) and Section 7.3, this Section 4.5(d) shall control.
4.6 Shareholder Notice. Promptly following receipt of the Requisite Approval, the Company shall deliver notice of the approval of this Agreement and the Merger by written consent of the Shareholders, pursuant to the applicable provisions of the Texas Corporation Law and the Company’s organizational documents (the “Shareholder Notice”), to all Shareholders that did not execute such written consent informing them that this Agreement and the Merger were adopted and approved by the Shareholders and that appraisal rights are available for their Common Stock pursuant to the Texas Corporation Law, and the Company shall provide drafts thereof to Parent, shall give Parent reasonable time to review and comment thereon, and shall include any reasonable comments made by Parent in the Shareholder Notice.
4.7 [Reserved].
4.8 D&O and E&O Insurance. Prior to the Closing, the Company shall have purchased (a) a “tail” directors’ and officers’ liability insurance policy for those Persons who are directors and officers of the Company as of the date of this Agreement (the “D&O Tail Policy”), and (b) an extended reporting period endorsement under the Company’s existing errors and omissions insurance policy in effect on the date of this Agreement (the “E&O Tail Policy”, and together with the D&O Tail Policy, the “Tail Policies”). The Company and Parent shall be equally responsible for the cost of the Tail Policies and such amount shall be deemed a Transaction Cost. The D&O Tail Policy purchased by the Company shall provide coverage for six (6) years and the E&O Tail Policy shall provide coverage for three (3) years, in
each case, from and after the Closing Date with respect to acts or omissions occurring at or prior to the Closing. The Tail Policies shall contain terms and coverage amounts at least as favorable as the terms and coverage amounts of the policies in effect on the date of this Agreement and be reasonably acceptable to Parent. For the period of six (6) years and three (3) years from and after the Closing Date for the D&O Tail Policy and the E&O Tail Policy, respectively, the Company shall not cancel or amend the Tail Policies.
4.9 Retention Plan. As soon as reasonably practicable following the Closing, Parent shall establish a retention plan (the “Retention Plan”) pursuant to which awards of cash or equity, in Parent’s sole discretion, will be awarded to certain employees of the Surviving Corporation (the “Retention Bonus Employees”) to be mutually agreed by Parent and the Shareholder Representative. Each retention award shall be evidenced by, and subject to the terms and conditions of, an individual retention bonus agreement prepared by the Parent (each a “Retention Bonus Agreement”), and the payment of such retention award to a Retention Bonus Employee shall be subject to the execution of a Retention Bonus Agreement by such Retention Bonus Employee.
4.10 Lease Guaranties. As soon as reasonably practicable following the Closing, Parent shall use commercially reasonable efforts to secure a release of the personal guaranties of the Leases; provided, however, that the Shareholder Representative shall be responsible for paying any expense or fee charged by the landlord in connection with obtaining such releases; provided, however, that Parent shall indemnify, defend, and hold such guarantors harmless from any Damages which the guarantors may suffer arising from the guaranties resulting from the actions of, or failure to act by, the Company after the Closing Date, and not resulting from the failure to obtain a required consent to the Merger from such Landlord.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB TO THE CLOSING
The obligations of Parent and Merger Sub to perform and observer the covenants, agreements, and conditions hereof to be performed and observed by Parent and Merger Sub at or before the Closing shall be subject to the satisfaction (or waiver by Parent) of the following conditions:
5.1 Material Adverse Effect. Since the date of this Agreement and through the Closing, the Company has not experienced a Material Adverse Effect or an event or circumstance that may result in or cause a Material Adverse Effect.
5.2 Governmental Approvals and Consents. Evidence reasonable satisfactory to Parent that transfers of permits or licenses and all approvals of or notices to any Governmental Body the granting or delivery of which is necessary for the consummation of the transactions contemplated hereby shall have been obtained.
5.3 Compliance with Laws. The consummation of the transactions contemplated by this Agreement and the other Operative Documents shall be legally permitted by all Laws and regulations to which Parent, Merger Sub, the Company, and any Shareholder is subject.
5.4 Regulatory Approvals. (i) No Governmental Body of competent jurisdiction shall have commenced or threatened to commence any inquiry, investigation or Claim under applicable Antitrust Law regarding any transaction contemplated by this Agreement that remains in effect, (ii) all applicable waiting periods (and any extensions thereof) under the HSR Act, and any commitment(s) by Parent not to
close before a certain date under a timing agreement entered into with a Governmental Body, shall have expired or otherwise been terminated without the imposition of Burdensome Condition, and (iii) no Law, temporary restraining order, preliminary or permanent injunction, or other order of any court of competent jurisdiction or administrative agency shall be in effect that (A) enjoins, restrains, or prohibits consummation of the transactions contemplated by this Agreement or any other Operative Document, or (B) imposes or seeks to impose a Burdensome Condition.
5.5 Company Deliverables. Parent shall have received from the Company the following duly executed agreements and documents, each of which shall be in full force and effect and in form and substance reasonable to Parent.
(a) Certificate of Merger. Parent shall have received the Certificate of Merger, duly executed by the Company.
(b) Secretary’s Certificate. A certificate of the Secretary of the Company, dated as of the Closing Date, in form and substance satisfactory to Parent certifying (i) as to the terms and effectiveness of the Company’s governing documents, (ii) as to the valid adoption of resolutions of the Board (whereby the transactions contemplated hereunder were unanimously approved by the Board) and (iii) that the Shareholders constituting the Requisite Approval have approved this Agreement and the consummation of the transactions contemplated hereby.
(c) Good Standing Certificates. Certificates of appropriate Government Officials in each jurisdiction in which the Company is required to qualify to do business as to the due qualification and good standing (including Tax) of the Company in each such jurisdiction.
(d) Shareholder Consent; Dissenting Shares. An executed copy of the Written Consent evidencing the Requisite Approval. Dissenting Shares shall represent less than 10% of the outstanding capital stock of the Company (determined on an as-converted basis).
(e) [Reserved].
(f) Contribution Agreements. Duly and validly executed Contribution Agreements from each of the Exchanging Shareholders.
(g) Restrictive Covenant Agreements. Duly and validly executed Restrictive Covenant Agreements from each of the Restrictive Covenant Agreement Parties.
(h) Joinder Agreements. Duly and validly executed Joinder Agreements from each of the Shareholders set forth on Schedule I.
(i) Estimated Closing Certificate and Closing Consideration Spreadsheet. The Estimated Closing Certificate, in accordance with Section 1.8 and the Closing Consideration Spreadsheet, in accordance with Section 1.6(c).
(j) Resignation of Directors and Officers. The written resignation of each director and officer of the Company (in their capacities as such) to be effective as of the Closing Date.
(k) Third Party Consents. Evidence satisfactory to Parent of the consent of each party to the Contracts listed on Exhibit C (the “Required Consents”) in connection with the transactions contemplated by this Agreement;
(l) Terminations and Amendments. Evidence satisfactory to Parent of the termination or amendment of, as applicable, each of the Contracts listed on Exhibit D (the “Required Contracts”) at Closing without further action of any Person;
(m) Payoff Letters. Payoff letters in customary form satisfactory to Parent (specifying effectiveness upon receipt of payment and providing releases satisfactory to Parent) (each a “Payoff Letter”) with respect to all payments relating to any Debt and Transaction Costs of the Company in amounts not greater than the amounts set forth in the Estimated Closing Certificate shall have been executed by each of the Persons to whom such amounts are owed as of the Closing; and
(n) Forms W-9. An IRS Form W-9 or appropriate IRS Form W-8, as applicable, from each payee of Transaction Costs and Debt and Closing payments pursuant to Section 1.6(e)(iii).
(o) FIRPTA Documents. A properly executed statement, in accordance with Treasury Regulation Sections 1.897-2(h) and 1.1445-2(c)(3), certifying that the Company is not and has not been a “United States real property holding corporation” (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, together with the required notice to the IRS and written authorization for Parent to deliver such notice and a copy of such statement to the IRS on behalf of the Company upon the Closing.
(p) Escrow Agreement. A duly executed counterpart to the Escrow Agreement from each of the Shareholder Representative and the Escrow Agent.
(q) Paying Agent Agreement. A duly executed counterpart to the Paying Agent Agreement from the Paying Agent.
(r) Tail Policies. Evidence that the Company has purchased and bound the Tail Policies.
(s) Termination of Employee Benefit Plans. [Reserved]
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY TO THE CLOSING
The obligations of the Company to perform and observer the covenants, agreements, and conditions hereof to be performed by the Company at or before the Closing shall be subject to the satisfaction (or waiver by the Company) of the following conditions.
6.1 Escrow Agreement. A duly executed counterpart to the Escrow Agreement from Parent.
6.2 Contribution Agreements. A duly executed counterpart to each Contribution Agreement from Parent.
6.3 Certificate of Merger. Company shall have received the Certificate of Merger, duly executed by Merger Sub.
6.4 Secretary’s Certificate. A certificate of the Secretary of the Parent, dated as of the Closing Date, in form and substance satisfactory to Company certifying as to the valid adoption of resolutions of the board of directors of the Parent.
6.5 Good Standing Certificate. Certificate of appropriate Government Officials in the jurisdiction of incorporation of the Parent as to the due qualification and good standing (including Tax) of the Parent in such jurisdiction.
6.6 Restrictive Covenant Agreements. Duly and validly executed Restrictive Covenant Agreements for each of the Restrictive Covenant Agreement Parties from Parent.
6.7 Paying Agent Agreement. A duly executed counterpart to the Paying Agent Agreement from Parent.
6.8 Transaction Insurance Policy. Purchaser has obtained the Transaction Insurance Policy.
ARTICLE VII
SURVIVAL AND INDEMNIFICATION
7.1 Survival. Except for claims of Fraud and subject to the limitations and other provisions of this Agreement, (a) the representations and warranties contained in this Agreement and (b) the covenants and agreements of any Party set forth in this Agreement, to the extent contemplating or requiring performance by such Party prior to the Closing, in each case, shall survive for a period of 12 months after the Closing. All covenants and agreements of the parties contained in this Agreement that are to be performed after the Closing shall survive the Closing for the period specified therein or until fully performed, or in absence of such period or performance, until the last date permitted by Law. Subject to the last sentence of this Section 7.1, except as specified on Exhibit H with respect to Policy Excluded Matters, the Indemnified Parties’ rights to seek indemnification under this Article VII shall survive until, and shall terminate upon, the date that is 12 months after the Closing. The applicable survival period pursuant to this Section 7.1 is referred to as the “Survival Period.” It is the express intent of the parties that, if an applicable Survival Period as contemplated by this Article VII is shorter than the statute of limitations that would otherwise apply, then, by contract, the applicable statute of limitations shall be reduced to the Survival Period contemplated hereby. The parties further acknowledge that the time periods set forth in this Article VII for the assertion of claims under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed by the parties. Notwithstanding the foregoing, any good faith claim for indemnification pursuant to this Article VII in respect of any representation, warranty, covenant, agreement or indemnity that is made prior to the applicable Survival Period as set forth in this Article VII, shall survive until such claim is finally resolved pursuant to this Article VII.
7.2 Indemnification by the Indemnifying Parties. Subject to the other provisions of this Article VII and except as otherwise set forth on Exhibit H, following the Closing, the Indemnifying Parties, jointly and severally, shall indemnify Parent and the Surviving Corporation, their Affiliates, and each of their respective officers, directors, employees, agents and other representatives (each a “Indemnified Party”) in respect of, and hold them harmless against, any Damages suffered or incurred by an Indemnified Party resulting from, arising out of or incident to:
(a) any inaccuracy in or Breach of any representation or warranty made by the Company in this Agreement; or
(b) any matter set forth on Exhibit H (the “Policy Excluded Matters”).
7.3 Third Party Claims. If Parent receives written notice of a third-party claim that Parent believes may result in a claim of indemnification against the Indemnifying Parties by or on behalf of a
Indemnified Party, Parent will notify the Shareholder Representative of such third-party claim; provided, however, that the failure to so notify the Shareholder Representative shall not affect the Indemnified Parties’ right to indemnification unless the Indemnifying Parties are materially prejudiced thereby. Parent will provide the Shareholder Representative the opportunity to participate at the Shareholder Representative’s own cost in, but not direct or conduct, the defense of any such third party claim; provided, however, that the Shareholder Representative will not be provided an opportunity to participate in any such third-party claim to the extent that Parent reasonably determines that such participation would result in the loss of (a) any attorney-client privilege or right under the work-product doctrine of Parent or any Indemnified Party, or (b) coverage under the Transaction Insurance Policy, in each case in respect of such claim. The Shareholder Representative’s participation will be subject to Parent’s right to control such defense. Parent will have the right in its sole discretion to settle any such claim, but if the settlement is without the consent of the Shareholder Representative, the settlement will not be determinative of the amount of Damages relating to such matter. If the Shareholder Representative consents to any such settlement, then neither the Shareholder Representative nor any Indemnifying Party will have any power or authority to object to the amount or validity of any claim by or on behalf of any Indemnified Party for indemnity with respect to such settlement. The Shareholder Representative will be deemed to have been given consent to a settlement if the Shareholder Representative has not objected within twenty (20) days after a written request for consent to such settlement by Parent. Notwithstanding any other provision of this Agreement, any costs and expenses of investigation or defense, including court costs and reasonable attorneys’ fees, incurred or suffered by the Indemnified Party in connection with any third-party claim alleging matters that would constitute the failure of a representation or a Breach of warranty to be true and correct or be the basis of a claim for any other matter specified in Section 7.2(a), whether or not it is ultimately determined that there was such a failure to be true and correct or basis for a claim, will constitute Damages subject to indemnification under Section 7.2(a). Notwithstanding anything in this Section 7.3 to the contrary, in the event of a conflict between this Section 7.3 and Exhibit H, Exhibit H shall control with respect to Policy Excluded Matters.
7.4 Procedure for Indemnification.
(a) An Indemnified Party shall give written notice (a “Claim Notice”) of any Indemnification Claim to the Shareholder Representative, reasonably promptly, but in any event if such Indemnification Claim relates to the assertion against an Indemnified Party of any Claim by a third party (excluding any Tax Contest, a “Third Party Claim”), within thirty (30) days after receipt by the Indemnified Party of written notice of a legal process relating to such Third Party Claim; provided, however, that the failure to so notify an Indemnifying Party within such time period shall not relieve the Indemnifying Party of any obligation or liability to the Indemnified Party, except to the extent that the Indemnifying Party demonstrates that its ability to resolve such Indemnification Claim is materially and adversely affected thereby.
(b) Unless the Shareholder Representative contests the Indemnification Claim in writing delivered to the Indemnified Party within thirty (30) days after receipt of a Claim Notice and describing in reasonable detail the basis for contesting the Indemnification Claim, the Indemnifying Parties shall, subject to the other terms of this Article VII, pay to the Indemnified Party the amount of Damages related to such Indemnification Claim or the uncontested portion thereof. Any disputed Indemnification Claims shall be resolved either (i) in a written agreement signed by Parent and the Shareholder Representative, or (ii) by the final, non-appealable decision of a court resolving such disputed Indemnification Claim.
(c) The Indemnified Party shall have the right to control the defense and handling, and settle or compromise, of any Third Party Claim at the expense of the Indemnifying Party; provided, however, that the Indemnifying Party shall, at the request of the Indemnified Party, participate in any such defense or handling; and provided further that neither the existence nor the amount of any settlement or compromise entered into without the consent of the Indemnifying Party or the Shareholder Representative (which consent shall not, in either case, be unreasonably conditioned, withheld or delayed) shall be finally determinative of (i) whether such settlement or compromise or any other Damages attributable to such Third Party Claim constitute indemnifiable Damages hereunder, nor (ii) the amount of any Damages that the Indemnified Party is entitled to recover from the Indemnifying Party with respect to such Third Party Claim; provided, further, however, that if the Indemnifying Party or the Shareholder Representative has consented to any such settlement or compromise, neither the Shareholder Representative nor any Indemnifying Party shall have the right to object to such Third Party Claim to the extent of the amount of such settlement or compromise.
7.5 Limitations.
(a) The Indemnified Parties may not recover any indemnifiable Damage from the Indemnity Escrow Fund in respect of, and the Indemnifying Parties shall not be liable for any claim for indemnification pursuant to, Section 7.2(a) unless and until Damages indemnifiable pursuant to Section 7.2(a) have been incurred or properly accrued in an aggregate amount greater than $412,500 (the “Basket,” such amount being equal to fifty percent (50%) of the retention under the Transaction Insurance Policy) (at which point the Indemnified Parties shall be entitled to indemnification only to the extent such Damages exceed the Basket).
(b) The maximum aggregate amount of indemnifiable Damages that the Indemnifying Parties shall be liable for, or that the Indemnified Parties shall be entitled to recover, pursuant to Section 7.2(a), shall be $412,500 (the “General Rep Cap”, such amount being equal to fifty percent (50%) of the retention under the Transaction Insurance Policy) (it being agreed that such any Damages shall be satisfied exclusively by recovery against the Indemnity Escrow Fund).
(c) Neither the Basket nor the General Rep Cap shall apply to any indemnifiable Damage in respect of any claim for indemnification arising from Section 7.2(b) or for a claim of Fraud by the Company; provided, however, that the maximum aggregate amount of indemnifiable Damages that an individual Indemnifying Party shall be liable for arising from Section 7.2(b) or for a claim of Fraud by the Company shall not exceed the aggregate Merger Consideration, except as otherwise explicitly set forth on Exhibit H with respect to indemnification arising from Section 7.2(b) (the “Indemnification Cap”).
(d) For the avoidance of doubt, nothing in the foregoing shall limit the ability of an Indemnified Party to recover for claims of Fraud with respect to the Person who committed such Fraud, and none of the Basket, the General Rep Cap, or the Indemnification Cap shall apply to claims of Fraud against such Person.
(e) Except for claims of Fraud, Section 9.11, and with respect to the Transaction Insurance Policy, this Article VII shall be the exclusive means for any Indemnified Party to collect any Damages under this Agreement or otherwise and under any theory of Liability. Notwithstanding anything to the contrary in this Agreement, Parent, on behalf of itself and each other Indemnified Party, acknowledges and agrees that, except in the case of Fraud and Section 9.11, the sole and exclusive remedy of any Indemnified Party for any claim related to or arising under Section 7.2(a), shall be to recover from the Indemnity Escrow Fund and to make a claim against the Transaction Insurance Policy.
Parent, on behalf of itself and each other Indemnified Party, further acknowledges and agrees that the provisions of this Section 7.5(e) shall apply regardless of whether (i) Parent obtains at or following Closing, or maintains following Closing, the Transaction Insurance Policy, (ii) the Transaction Insurance Policy is revoked, cancelled or modified in any manner after issuance, or (iii) any Indemnified Party makes a claim under the Transaction Insurance Policy and such claim is denied by the insurer thereof.
7.6 Certain Additional Indemnification Matters.
(a) Any investigation or other examination that may have been made or may be made at any time by or on behalf of the Party to whom representations and warranties are made shall not limit, diminish or in any way affect the representations and warranties in this Agreement, and the parties may rely on the representations and warranties in this Agreement irrespective of any information obtained by them by any investigation, examination or otherwise.
(b) In connection with any exercise by an Indemnified Party of its rights hereunder, Parent shall be entitled to make all claims through and deal exclusively with the Shareholder Representative.
(c) The Indemnifying Parties shall not have the right to seek indemnification or contribution from the Surviving Corporation or any Indemnified Party with respect to all or any part of the Indemnifying Parties’ indemnification obligations under this Article VII.
(d) Notwithstanding anything to the contrary contained in this Agreement, “material,” “Material Adverse Effect” or similar materiality-type qualifications contained in the representations and warranties set forth in this Agreement or any defined term used therein will be ignored and not given any effect for purposes of the indemnification provisions hereof, including for purposes of determining whether or not a Breach of a representation or warranty has occurred and determining the amount of Damages.
7.7 Character of Indemnity Payments. All amounts paid pursuant to this Section 7.7 shall be treated as adjustments to the Merger Consideration for Tax purposes, to the extent permissible under applicable Law.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated at any time before the Closing:
(a) by the written consent of Parent and the Company;
(b) by Parent or the Company if the Closing has not occurred on or before the date that is one month after the date of this Agreement; provided, however, that if Parent is then in Breach of or default under this Agreement, Parent may not terminate this Agreement pursuant to this Section 8.1(b) and if the Company is then in Breach of or default under this Agreement, the Company may not terminate this Agreement pursuant to this Section 8.1(b);
(c) by either the Company or Parent in the event that any Governmental Body shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and non-appealable;
(d) by Parent, if Parent concludes that satisfaction of any of the conditions in Article V is or becomes impossible to satisfy (other than solely as a result of any Breach or default under this Agreement by Parent) and Parent has not waived such condition; or
(e) by Parent if the Written Consent has not been delivered to Parent within 24 hours of the execution of this Agreement.
8.2 Effect of Termination. In the event of termination of this Agreement pursuant to Section 8.1, written notice thereof shall promptly be given by the terminating party to the other parties, and this Agreement shall thereupon terminate and become void and have no further force or effect, and the transactions contemplated hereby shall be abandoned without further action by the parties hereto. Notwithstanding the foregoing, this Section 8.2 and Article IX shall survive indefinitely, and nothing herein shall relieve any party hereto of any Liability for Fraud or any breach of this Agreement occurring before such termination.
ARTICLE IX
GENERAL
9.1 Expenses. Except as otherwise set forth herein, each party shall pay its own fees, costs and expenses incident to the negotiation, preparation and execution of this Agreement, the other Operative Documents and the consummation of the transactions contemplated hereby and thereby; provided, however, notwithstanding the foregoing, Parent shall bear 100% of the cost of the HSR Act filing fees described in the first sentence of Section 4.4(b).
9.2 Notices. Any notice, request or demand desired or required to be given hereunder shall be in writing and shall be given by personal delivery, email or overnight courier service, in each case addressed as respectively set forth below or to such other address as any party shall have previously designated by such a notice. The effective date of any notice, request or demand shall be the date of personal delivery, the date on which email is sent or one day after it is delivered to a reputable overnight courier service, as the case may be, in each case properly addressed as provided herein and with all charges prepaid. Notice given to the Shareholder Representative shall constitute notice given to each Shareholder.
TO PARENT OR MERGER SUB (AND AFTER THE CLOSING, THE SURVIVING CORPORATION):
HawkEye 360, Inc.
450 Springpark Place
Suite 500
Herndon, VA 20170
Attention: John Serafini, Chief Executive Officer
Michael Turner, Chief Legal Officer
Email: [***]
With a copy (which shall not constitute notice) to:
Cooley LLP
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004
Attention: Andy Lustig
Aaron Binstock
Email: [***]
TO THE COMPANY (BEFORE THE CLOSING):
Innovative Signal Analysis, Inc.
3301 East Renner Road
Suite 200
Richardson, TX 75082
Attention: Stacy Kniffen, President
Email: [***]
TO THE SHAREHOLDER REPRESENTATIVE:
David L. Stevens
5964 King William Dr.
Plano, TX 75093
Email: [***]
With a copy (which shall not constitute notice) to:
Ferguson Braswell Fraser Kubasta PC
2500 Dallas Parkway, Suite 600
Plano, Texas 75093
Attn: Alex Parker
Email: [***]
9.3 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties to the fullest extent possible.
9.4 Entire Agreement. This Agreement (including the Company Disclosure Schedule and all other Exhibits and schedules), the other Operative Documents and the Confidentiality Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof.
9.5 Assignment. This Agreement shall not be assigned by operation of law or otherwise; provided, however, that Parent may assign this Agreement and the rights and obligations hereunder (i) in
connection with collateral assignments for the benefit of lenders, or (ii) to one or more Buyer Entities. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties hereto and their respective heirs, successors, permitted assigns and legal representatives.
9.6 Parties in Interest. This Agreement shall be binding on and inure solely to the benefit of the parties, the Indemnified Parties and their respective successors, heirs, legal representatives and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
9.7 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, including its statutes of limitations, without giving effect to any conflict-of-laws or other rule that would result in the application of the laws of a different jurisdiction. In any action among or between any of the parties arising out of or relating to this Agreement, including any action seeking equitable relief, each of the parties irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the state and federal courts located in the State of Delaware; provided, however, solely to the extent required by Texas Corporation Law, matters relating to Sections 1.1, 1.3, 1.4, and 1.6 of this Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Each party hereby irrevocably waives all right to trial by jury in any action, proceeding, or counterclaim (whether based on Contract, tort, or otherwise) arising out of or relating to this Agreement and the other Operative Documents, the transactions contemplated hereby and thereby, or the actions of such parties in the negotiation, administration, performance, and enforcement hereof and thereof.
9.8 Incorporation of Recitals. This Agreement shall be deemed to have incorporated by reference the introductory paragraph and all the Recitals set forth in the introductory portion of this Agreement to the same extent as if such introductory paragraph and Recitals were fully set forth in this Agreement. Each reference herein to “this Agreement” shall be construed to include the introductory paragraph and each such Recital.
9.9 Construction
(a) The words “hereof”, “herein,” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.
(b) For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.
(c) The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.
(d) Any terms used herein that are not defined herein but are defined in GAAP have the meanings ascribed to them therein.
(e) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
(f) Except as otherwise indicated, all references in this Agreement to “Sections”, “Exhibits”, or “Schedules” are intended to refer to Sections of this Agreement and Exhibits or Schedules to this Agreement. All Exhibits and Schedules annexed hereto or referred to herein, including the Company Disclosure Schedule, are hereby incorporated in and made a part of this Agreement as if set forth in full herein. All capitalized terms used in any Exhibit or Schedule but not otherwise defined therein will have the respective meaning given to such terms in this Agreement.
(g) References to “$” or “dollars” will be references to U.S. Dollars, and all amounts in this Agreement shall be paid in U.S. Dollars, and if any amounts, costs, fees or expenses incurred by any party pursuant to this Agreement are denominated in a currency other than U.S. Dollars, to the extent applicable, the U.S. Dollar equivalent for such costs, fees, and expenses shall be determined by converting such other currency to U.S. Dollars at the foreign exchange rates published in the Wall Street Journal (or, if not reported thereby, another authoritative source reasonably determined by the Company) on the day immediately preceding the date on which such amount, cost, fee, or expense is paid or to be paid pursuant to the terms hereof, and if the resulting conversion yields a number that extends beyond two decimal points, rounded to the nearest penny.
(h) “Writing”, “written” or comparable terms refer to printing, typing, and other means of reproducing words (including electronic media) in a visible form.
(i) References to any statute or other legal requirement shall be deemed to refer to such legal requirement, as amended from time to time and to any rules, regulations, or interpretations promulgated thereunder. With respect to a Person, references to “law”, “laws”, “applicable law”, or to a particular statute or law shall be deemed also to include any and all legal requirement binding upon or applicable to such Person.
(j) When a reference is made to the “Company” in this Agreement (including the Company Disclosure Schedule and all other Exhibits and schedules) or the other Operative Documents, such reference shall, to the extent applicable, also refer to any predecessor entities of the Company.
(k) References to any Contract are to that Contract as amended, modified, or supplemented from time to time in accordance with the terms hereof and thereof, provided, that with respect to any Contract listed on any schedules hereto (including the Company Disclosure Schedule), all such amendments, modifications, or supplements must also be listed in the appropriate schedule.
(l) The word “or” is not exclusive.
(m) The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.
(n) The word “will” shall be construed to have the same meaning and effect as the word “shall”.
(o) The phrases “provided to”, “made available”, “furnished to” and phrases of similar import when used herein, unless the context otherwise requires, shall mean that a true, correct, and complete electronic copy of the information or material referred to shall have been: (1) with respect to
materials or information of the Company and the Company’s Subsidiaries, (A) accessible for a continuous period of at least forty-eight (48) hours immediately prior to the date of this Agreement in the virtual data room hosted by “Datasite” in connection with the Merger to which the Parent and at least one of its designated representatives have unrestricted access and notification rights during such period or (B) were provided to Purchaser for review and inspection at the offices of the Company; and (2) with respect to materials or information of any other Person, sent via email to the applicable other Person or one of its representatives at least forty-eight (48) hours immediately prior to the date of this Agreement.
(p) All references herein to any period of days will mean the number of calendar days unless otherwise specified. When calculating the period of time before which, within which or following which, any act is to be done or step taken hereunder, the date that is the reference date in calculating such period will be excluded. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until or taken or given on the next Business Day. Any deadline or time period set forth in this Agreement that by its terms ends on a day that is not a Business Day shall be automatically extended to the next succeeding Business Day.
9.10 Counterparts. This Agreement may be executed and delivered in one or more counterparts, either manually or electronically (including by PDF and electronic mail), each of which shall be deemed to be an original but all of which together shall constitute one and the same agreement.
9.11 Specific Performance. Each of the Company and the Shareholder Representative acknowledges and agrees that Parent would be damaged irreparably if any provision of this Agreement is not performed in accordance with its specific terms or otherwise is Breached. Accordingly, each such party agrees that Parent shall be entitled to an injunction to prevent any Breach of any provision of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, in addition to any other remedy available at Law or in equity, in each case without proof of actual damages or the need to post a bond in connection therewith.
9.12 Amendment. This Agreement may be amended, modified or supplemented at any time, but only pursuant to an instrument in writing signed by Parent, the Company and either (a) the Shareholder Representative or (b) a majority in interest of the Indemnifying Parties, calculated in reference to each Indemnifying Party’s Pro Rata Share.
9.13 Waiver. Parent may (a) extend the time for the performance of any obligation of the Company, the Shareholder Representative or any Shareholder under this Agreement or any other Operative Document, (b) waive any inaccuracy in the representations and warranties of the Company contained in this Agreement or any other Operative Document (which waiver will not in any manner affect the rights of Parent under Article VII), or (c) waive compliance by the Company, the Shareholder Representative or any Shareholder with any agreement or condition contained in this Agreement or any other Operative Document (which waiver will not in any manner affect the rights of Parent under Article VII). The Shareholder Representative (and, before the Closing, the Company) may (i) extend the time for the performance of any obligation of Parent under this Agreement or any other Operative Document, (ii) waive any inaccuracy in the representations and warranties of Parent contained in this Agreement or any other Operative Document, or (iii) waive compliance by Parent with any agreement or condition contained in this Agreement or any other Operative Document. Any extension or waiver contemplated in this Section 9.13 shall be valid only if set forth in an instrument in writing signed by Parent or the Shareholder Representative (or, before the Closing, the Company), as applicable, and shall apply only as set forth in such instrument and shall not operate as a waiver of, or estoppel with respect to, any failure to
comply with any other obligation, covenant, agreement or condition contained herein. Any extension or waiver by the Shareholder Representative (or, before the Closing, the Company) shall be binding on the Company, the Shareholder Representative and each Shareholder.
[Signature Pages Follow]
In Witness Whereof, the parties hereto have entered into and signed this Agreement as of the date and year first above written.
| | | | | | | | |
| PARENT: |
| HawkEye 360, Inc. |
| | |
| | |
| By: | /s/ John Serafini |
| Name: | John Serafini |
| Its: | Chief Executive Officer |
| | |
| MERGER SUB: |
| Forestal Merger Sub, Inc. |
| | |
| | |
| By: | /s/ Todd Probert |
| Name: | Todd Probert |
| Its: | President |
| | |
| COMPANY: |
| Innovative Signal Analysis, Inc. |
| | |
| | |
| By: | /s/ Stacy Kniffen |
| Name: | Stacy Kniffen |
| Its: | President |
| | |
| | |
| SHAREHOLDER REPRESENTATIVE: |
| | |
| | |
| By: | /s/ David Stevens |
| Name: | David Stevens |
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
Annex A
Definitions
“401(k) Plan” has the meaning set forth in Section 5.5(p)
“ACA” has the meaning set forth in Section 2.10(g).
“Accounting Firm” means a nationally recognized accounting firm jointly selected by the Parties in good faith.
“Accounting Principles” means GAAP as applied by the Company in the preparation of its 2024 Audited Financials, except for the accounting policies described on Annex B or reflected in the accounting methods, policies, principles, practices and procedures used in preparing the Estimated Net Working Capital, with consistent classifications, judgments and estimation methodology, and not including any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated hereby.
“Adjustment Dispute Notice” has the meaning set forth in Section 1.8(d).
“Adjustment Escrow Amount” means $2,500,000.00.
“Affiliate” means, with respect to a Person, any other Person that, directly or indirectly, controls or is controlled by or is under common control with the first Person.
“Affiliated Group” means any affiliated, consolidated, combined, unitary or similar Tax group, including any arrangement for group or consortium relief or similar arrangement.
“Agreement” has the meaning set forth in the first paragraph of this Agreement.
“Ancillary Agreements” means all of the agreements, documents, instruments, and certificates contemplated by this Agreement or to be executed by a party to this Agreement in connection with the consummation of the Transactions.
“Annual Financial Statements” has the meaning set forth in Section 2.5(a).
“Anti-Corruption Laws” means all U.S. and non-U.S. Laws relating to the prevention of corruption and bribery, including the U.S. Foreign Corrupt Practices Act of 1977, as amended.
“Antitrust Laws” means any antitrust, competition or trade regulation Law that is designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, including the HSR Act as well as Section 857 of the National Defense Authorization Act for Fiscal Year 2024 (“NDAA”).
“Basket” has the meaning set forth in Section 7.5(a).
“Board” has the meaning set forth in the recitals.
“Breach” or “Breached”: A “Breach” of a representation, warranty, certification, covenant, obligation or other provision of this Agreement or any Operative Document will be deemed to have occurred, or a representation, warranty, certification, covenant, obligation or other provision of this Agreement or any Operative Document will have been “Breached,” if there is or has been any inaccuracy in or breach of, or any failure to perform or comply (in whole or in part) with, such representation, warranty, certification, covenant, obligation or other provision.
“Burdensome Condition” has the meaning set forth in Section 4.4(b).
“Business Day” means any day, other than a Saturday, a Sunday, or any other day on which the Federal Reserve Bank of New York is closed in observance of a holiday.
“Buyer Entity” means Parent, an Affiliate of Parent that is not an individual, a successor of Parent or another Person designated by one of the foregoing.
“CARES Act” shall mean the Coronavirus Aid, Relief, and Economic Security Act (Public Law 116-136), signed into law on March 27, 2020.
“Cash on Hand” means, as of a particular time of determination, the unrestricted cash and cash equivalents of the Company reflected on the general ledger of the Company, that are held in bank accounts owned and controlled by the Company and reduced by the costs (including Taxes) of repatriating any such amounts to the United States.
“Certificate of Merger” has the meaning set forth in Section 1.3.
“Civil Demand” has the meaning set forth on Exhibit H.
[***]
“Civil Demand Rep” means the representations and warranties set forth in Section 2.21(p).
“Claim” means any claim, litigation, demand, cause of action, suit, proceeding, arbitration, charge, complaint, audit, hearing, investigation, inquiry or similar dispute (whether formal or informal, civil, criminal or administrative).
“Classified Disclosure Supplement” means the Company Disclosure Schedule supplement designated as the “Classified Disclosure Supplement” made available by the Company to Parent on the date of this Agreement for review by appropriately cleared Parent personnel in the Company’s Sensitive Compartmented Information Facility, as such term is defined in the Intelligence Community Directive 705 and associated technical specifications promulgated by the Office of the Director of National Intelligence.
“Closing” has the meaning set forth in Section 1.2.
“Closing Calculation Time” means the time immediately prior to the Closing (without giving effect to the Closing); provided that for purposes of determining Taxes that are included in or adjust the Merger Consideration, the Closing Calculation Time means 11:59 p.m. Eastern Time on the Closing Date (giving effect to the Closing).
“Closing Consideration Spreadsheet” has the meaning set forth in Section 1.6(c).
“Closing Date” has the meaning set forth in Section 1.2.
“Closing Merger Consideration” means an amount in cash equal to (a) the Merger Consideration, minus (b) the Escrow Amounts, minus (c) the Holdback Amount, minus (d) the amount of the Expense Fund, minus (e) the Earnout Payment, minus (f) the Deferred Payment Amount.
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Stock” has the meaning set forth in Section 2.3(a).
“Common Stock Outstanding” means the number of shares of Common Stock outstanding and held by Shareholders immediately prior to the Effective Time; provided, that, for the avoidance of doubt, Common Stock Outstanding shall exclude the Contributed Shares.
“Company” has the meaning set forth in the first paragraph of this Agreement.
“Company Balance Sheet” has the meaning set forth in Section 2.5(b).
“Company Disclosure Schedule” has the meaning set forth in Article II.
“Company Health Plan” has the meaning set forth in Section 2.10(g).
“Company Intellectual Property Rights” means all Intellectual Property Rights owned (or purported to be owned), applied for, used or licensed (whether as licensor or licensee) by or under obligation of assignment to the Company.
“Company IP” means all Company Technology and Company Intellectual Property Rights.
“Company IP Agreements” means all Inbound Licenses and Outbound Licenses.
“Company IP Protection Agreements” has the meaning set forth in Section 2.11(f)(i).
“Company IP Registrations” has the meaning set forth in Section 2.11(b)(i).
“Company License” has the meaning set forth in Section 2.14(a).
“Company-Owned IP” means all Company IP owned (or purported to be owned) by the Company.
“Company PIAA” has the meaning set forth in Section 2.11(f)(i).
“Company Technology” means all Technology owned (or purported to be owned), used or licensed (whether as licensor or licensee) by the Company.
“Confidentiality Agreement” means the Amended and Restated Confidentiality Agreement, dated as of July 16, 2020, by and between Parent and the Company, as amended on July 5, 2023 and March 7, 2025.
“Contract” means any contract, agreement, instrument, commitment, permit, or undertaking of any nature, whether oral or written (including any concession, franchise, license, lease, mortgage, indenture or other business arrangement), in each case which is legally binding.
“Contributed Shares” has the meaning set forth in the recitals.
“Contribution Agreement” has the meaning set forth in the recitals.
“Copyleft License” means any license that requires, as a condition of use, that any Software or content subject to such license that is distributed or modified (or any other Software or content incorporated into, derived from, used, or distributed with any such Software or content): (i) in the case of Software, be made available to any third-party recipient in a form other than binary form (e.g., in source code form), (ii) be made available to any third-party recipient under terms that allow preparation of derivative works, (iii) in the case of Software, be made available to any third-party recipient under terms that allow Software or interfaces therefor to be reverse engineered, reverse assembled or disassembled (other than to the extent any contrary restriction would be unenforceable under Law), or (iv) be made available to any third-party recipient at no license fee. Copyleft Licenses include the GNU General Public License, the GNU Lesser General Public License, the Mozilla Public License, the Common Development and Distribution License, the Eclipse Public License, and all Creative Commons “sharealike” licenses.
“Current Assets” means the aggregate current assets of the Company, excluding Cash on Hand, determined in accordance with the Accounting Principles, as modified by Annex B.
“Current Liabilities” means the aggregate current liabilities of the Company, determined in accordance with the Accounting Principles, as modified by Annex B, but excluding (a) Debt and (b) Transaction Costs.
“D&O Tail Policy” has the meaning set forth in Section 4.8.
“Damages” shall mean losses, costs, damages, Taxes and expenses that have been incurred or paid by an Indemnified Party, including (i) reasonable out-of-pocket third party attorneys’ fees and expenses and reasonable fees and expenses of other professionals and experts, and (ii) [***].
“Data Breach” means (i) any actual or reasonably suspected unauthorized, unlawful, or accidental loss of, damage to, access to, use, alteration, acquisition, encryption, theft, modification, destruction, unavailability, disclosure of, or other Processing of Sensitive Data, or (ii) any damage to, or unauthorized, unlawful, or accidental access to, theft of, or use of, any IT Systems.
“Debt” means, without duplication, with respect to any Person all obligations (including all principal, interest and sums due on early termination and repayment or redemption, as applicable, calculated to the Closing Date): (a) for borrowed money, including any amounts borrowed by the Company or any of its Subsidiaries under the Paycheck Protection Program or otherwise under the CARES Act, but excluding the balances of Company credit card accounts included current liabilities in the calculation of Net Working Capital, (b) evidenced by bonds, debentures, notes or other similar instruments, (c) for any reimbursement obligation with respect to letters of credit (including standby letters of credit to the extent drawn upon), bankers’ acceptances or similar facilities issued for the account of the Company, (d) to pay the deferred purchase price of property or services (excluding any Current Liabilities that is included in the calculation of Net Working Capital), (e) under capital leases (excluding the Leases), (f) in the nature of guarantees of the obligations described in the preceding clauses (a) through (e) of any other Person, (g) in respect of futures Contracts, swaps, other financial contract and other similar obligations (determined on a net basis as if such Contract was terminated early on such date), (h) for any Pre-Closing Taxes that are unpaid as of the Closing Calculation Time (which shall include $131,605.22 for personal property taxes, $6,000 for state income taxes, and $15,000 for sales and use taxes), (i) for pension liabilities, retirement indemnities and any other unfunded employee benefit
scheme, (j) for dividends declared or payable and other amounts owed to any Shareholder or any Affiliate or immediate family member of any Shareholder (including shareholder loans), which remain unpaid as of immediately prior to the Closing, (k) any liability with respect to employee stock option plans or phantom stock units, (l) all unpaid severance or similar obligations (including (x) any matter disclosed in Section 2.6(f) in the Company Disclosure Schedule and (y) the employer portion of any applicable employment, payroll or similar Taxes), (m) any accrued and unused paid vacation, paid time off or similar paid leave, any accrued and unpaid bonuses or commissions, and any other bonuses or commissions that relate to the period prior to the Closing, irrespective of whether accrued (including, each case, the employer portion of any applicable employment, payroll or similar Taxes), (n) deferred revenue and advanced payments from customers for materials or services to be provided, and (o) accrued materials costs net of any offsetting deposits.
“Deferred Interest Payment” has the meaning set forth in Section 1.12.
“Deferred Payment” has the meaning set forth in Section 1.12.
“Deferred Payment Amount” has the meaning set forth in Section 1.12.
“Deferred Payment Date” has the meaning set forth in Section 1.12.
“Deferred Payment Holdback Amount” has the meaning set forth on Exhibit H.
“Dissenting Shares” has the meaning set forth in Section 1.6(d).
“Dollars” or “$” when used in this Agreement or any other agreement or document contemplated hereby, means United States dollars unless otherwise stated.
“E&O Tail Policy” has the meaning set forth in Section 4.8.
“Earnout Determination Date” has the meaning set forth in Section 1.11(d).
“Earnout Notice” has the meaning set forth in Section 1.11(b).
“Earnout Payment” means (a) if the Eligible Revenue is equal to or less than the Minimum Revenue, then $0.00, (b) if the Eligible Revenue is greater than $[***] but less than $[***], then an amount in cash equal to (1) $2.00, multiplied by (2) the amount by which the Eligible Revenue exceeds the Minimum Revenue, and (c) if the Eligible Revenue is greater than or equal to $[***], then $10,000,000.
“Earnout Period” means the calendar year ended December 31, 2026.
“Eligible Revenue” means gross revenue (determined in accordance with the Accounting Principles and net of any discounts, credits or other allowances) that is recognized during the Earnout Period by the Surviving Corporation in respect of products and services sold by the Surviving Corporation during the Earnout Period, but excluding any sales or transfer of the Company’s products, hardware or payloads to Parent following the Closing.
“Employee Benefit Plan” means any retirement, group health, severance, other welfare, change of control, retention, equity purchase, equity option, restricted equity, phantom equity, equity appreciation rights, bonus, incentive, fringe benefit or other employee benefit or compensatory plan, program, policy,
practice, agreement, arrangement, Contract or fund (including any “employee benefit plan,” as defined in Section 3(3) of ERISA) or any employment, consulting or personal services contract, whether written or oral, funded or unfunded, (a) sponsored, maintained or contributed to by the Company or any ERISA Affiliate or to which the Company or any ERISA Affiliate is a party, (b) covering or benefiting any current or former employee, agent, director or independent contractor of the Company or any ERISA Affiliate (or any dependent or beneficiary of any such individual), or (c) with respect to which the Company or any ERISA Affiliate has or could have any actual or contingent present or future obligation or Liability.
“Encumbrance” means (a) liens, mortgages, pledges, deeds of trust, security interests, charges, leases, licenses, options, right of first refusal, easement, reservation, servitude, proxy, voting trust or agreement, transfer restriction under any shareholder or similar Contract, encumbrances and other adverse claims or interests of any kind, and (b) conditional sales Contracts, title retention Contracts or other Contract to give any of the foregoing, except for any restrictions on transfer generally arising under any applicable U.S. state or federal securities Law.
“Equitable Principles” means any bankruptcy, insolvency, reorganization, moratorium or other Law affecting or relating to creditors’ rights generally and general principles of equity.
“ERISA” means the Employee Retirement Income Security Act of 1974, and all rules and regulations promulgated thereunder, all as in effect from time to time.
“ERISA Affiliate” means any Person that, together with the Company is (or was, at the applicable time) considered a single employer under Section 414(b), (c), (m) or (o) of the Code.
“Escrow Agent” means Western Alliance Bank.
“Escrow Agreement” has the meaning set forth in Section 1.7(a).
“Escrow Amounts” means, together, the Adjustment Escrow Amount and the Indemnity Escrow Amount.
“Escrow Funds” has the meaning set forth in Section 1.7(a).
“Estimated Cash on Hand” has the meaning set forth in Section 1.8(a)(i).
“Estimated Closing Certificate” has the meaning set forth in Section 1.8(a).
“Estimated Debt” has the meaning set forth in Section 1.8(a)(i).
“Estimated Net Working Capital” has the meaning set forth in Section 1.8(a)(iii).
“Estimated Net Working Capital Deficiency” means the amount, if any, by which the Estimated Net Working Capital is less than the Net Working Capital Target.
“Estimated Net Working Capital Surplus” means the amount, if any, by which the Estimated Net Working Capital is greater than the Net Working Capital Target.
“Estimated Transaction Costs” has the meaning set forth in Section 1.8(a)(i).
“Exchange Documentation” means with respect to each Shareholder (i) a duly executed Letter of Transmittal, (ii) a duly executed Release Agreement, (iii) to the extent applicable, a stock certificate for cancellation, (iv) a properly completed and duly executed IRS Form W-9, or the appropriate version of IRS Form W-8, as applicable, and (v) any other documents that Parent or the Paying Agent may reasonably require.
“Exchanged Amount” has the meaning set forth in the recitals.
“Exchanged Shares” has the meaning set forth in the recitals.
“Exchanging Shareholders” has the meaning set forth in the recitals.
“Expense Fund” has the meaning set forth in Section 1.10(c).
“Expense Fund Account” has the meaning set forth in Section 1.10(c).
“Exploit” or “Exploitation” means to use, possess, reproduce, modify, display, market, perform, publish, transmit, broadcast, sell, license, distribute or otherwise exploit.
“Export-Import Laws” means all U.S. and non-U.S. Laws relating to export, reexport, transfer, and import controls, including the Export Administration Regulations, the International Traffic in Arms Regulations, and the customs and import Laws administered by U.S. Customs and Border Protection.
“FAR” means the Federal Acquisition Regulation and related agency supplements including but not limited to the Defense Federal Acquisition Regulation Supplement.
“Financial Statements” has the meaning set forth in Section 2.5(a).
“Fraud” means, with respect to a breaching party, that the non-breaching party can demonstrate that (i) such breaching party made a false representation or warranty in this Agreement; (ii) such breaching party knew that such representation or warranty in this Agreement was false; and (iii) such non-breaching party incurred Damages arising from such false representation or warranty; it being agreed that for purposes of determining whether such breaching party had committed Fraud, all the representations and warranties made in this Agreement by the Company are intended to (and are made in order to) induce the Parent to execute this Agreement, and that the Parent’s reliance on the representations and warranties in this Agreement is (and shall be deemed to be) justifiable reliance.
“GAAP” means generally accepted accounting principles in the United States.
“Generative AI Tools” means artificial intelligence technology and tools capable of producing various types of content, including source code, text, images, audio, and synthetic data, based on user-supplied prompts.
“Government Bid” means any quotation, offer, bid or proposal made by the Company that, if accepted, would result in, or lead to a Government Contract. For avoidance of doubt, the term Government Bid includes only quotations, offers, bids or proposals that have not expired and for which award has not been made.
“Government Contract” means any contract, including any prime contract, subcontract, teaming agreement, grant, cooperative agreement, subaward, basic ordering agreement, blanket purchase
agreement, other transaction agreement, purchase order, task order, delivery order, and including all amendments, modifications, and options thereunder, awarded (A) to the Company or any joint venture in which the Company has an interest, by any Governmental Body or by a prime contractor or higher-tier subcontractor to a Governmental Body, or (B) by the Company to a subcontractor at any tier in connection with an agreement in (A).
“Government Official” means any officer or employee of a Governmental Body or any department, agency or instrumentality thereof, including state-owned entities, or of a public organization or any person acting in an official capacity for or on behalf of any such government, department, agency, or instrumentality or on behalf of any such public organization.
“Government Participant” has the meaning set forth in Section 2.11(l).
“Governmental Body” means any (a) federal, state, local, foreign or other government authority, including any nation, state, commonwealth, province, territory, county, municipality, district or other judicial or political body; (b) public primary, secondary, or higher educational institutions; (c) labor or social security body; or (d) other governmental, self-regulatory or quasi-governmental authority of any nature (including any governmental division, department, agency, board, commission, instrumentality, official, organization, unit, body or entity and any court or other tribunal).
“Healthcare Reform Laws” has the meaning set forth in Section 2.10(g).
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“Holdback Amount” means an amount in cash equal to (i) at the Closing, $10,000,000, plus (ii) the Deferred Payment Holdback Amount withheld from the Deferred Payment in accordance with Exhibit H, if any.
“Inbound Licenses” means all Contracts pursuant to which the Company has the right to Exploit any Company IP with respect to which the Company does not own all right, title and interest (other than commercially available software products or services under standard end-user object code license or online click-through agreements that are not embedded in or bundled or distributed with the products and services of the Company involving obligations or payments of less than $50,000 per annum).
“Indemnification Claim” means any Claim for indemnification under Article VII.
“Indemnifying Parties” means all Shareholders with respect to any claims being offset against the Adjustment Escrow Amount, the Indemnity Escrow Amount, or the Holdback Amount (including the Deferred Payment Holdback Amount), and means the Shareholders named on Schedule I with respect to any indemnifiable claims that exceed the Escrow Amounts and Holdback Amount and in the event such amounts are not available in accordance with Section 7.5(c).
“Indemnity Escrow Amount” means $412,500.
“Intellectual Property Rights” means all intellectual property and proprietary rights worldwide, in any jurisdiction, whether registered or unregistered, including any and all foreign and domestic trade names, trademarks, service marks, domain names, social media handles, logos, copyrights, design rights, mask works, rights in databases, moral rights, trade secrets, trade dress, know-how, Software, algorithms, inventions, discoveries and discoveries (whether patentable or not), patents and all associated rights and
all registrations, applications, renewals, extensions and continuations (in whole or in part) of any of the foregoing, together with all goodwill associated therewith, any similar equivalent rights or tangible embodiments of the foregoing and all rights and causes of action for infringement, misappropriation, violation, misuse, dilution, unfair trade practice or otherwise associated therewith.
“Interim Financial Statements” has the meaning set forth in Section 2.5(a).
“IT Systems” means all information technology and computer systems relating to the transmission, storage, maintenance, organization, presentation, generation, processing or analysis of software, code, communications, data or information used in or necessary for the conduct of the business of the Company at any time, including without limitation, any such systems hosted or operated by a third party for or on behalf of the Company.
“Joinder Agreement” means a joinder substantially in the form attached hereto as Exhibit F, pursuant to which, among other things, a Shareholder will agree: (i) to vote all of its Common Stock, as applicable, in favor of this Agreement and the transactions contemplated hereby, including the Merger, and all other matters required to be approved or adopted in order to effect the Merger and such other transactions, (ii) to be bound by the applicable terms and conditions of this Agreement, (iii) to a release of claims against the Company, (iv) to appoint the Shareholder Representative as such Shareholder’s representative and attorney-in-fact and agent to act for such Shareholder with respect to all matters arising in connection with this Agreement and (v) to waive any dissenters’ or appraisal rights, including but not limited to those pursuant to Section 21.460 of the Texas Corporation Law.
“Knowledge of the Company” means, except as set forth in Section 2.21(p), the knowledge of each Stacy Kniffen, David Stevens, Cory Peichel, and Stephen Hawkins, and which means, with respect to each such individual (a) such individual is actually aware of such fact or matter, or (b) such individual, in connection with the reasonable and diligent discharge of his or her employment role and title with the Company or other responsibilities with respect to the entity in question, should reasonably be expected to have acquired knowledge of such factor or matter.
“Law” means any law, statute, ordinance, code, regulation, rule, other requirement, orders, decisions, judgments, writs, injunctions, decrees, awards or other determination of any Governmental Body.
“Lead Counsel” has the meaning set forth in Exhibit H.
“Leases” has the meaning set forth in Section 2.8(c).
“Letter of Transmittal” means a letter of transmittal substantially in the form attached hereto as Exhibit H.
“Liability” or “Liabilities” means any and all debts, liabilities, expenses, Taxes and obligations of any nature whatsoever, whether accrued or fixed, absolute or contingent, mature or unmatured or determined or indeterminable, asserted or unasserted, known or unknown, including those arising under any Law and those arising under any Contract, regardless of whether such liabilities are required to be reflected on a balance sheet in accordance with GAAP, including with respect to the Company, Transaction Costs and Debt.
“Liquidity Event” means the earliest to occur of (i) Parent IPO, (ii) Parent Sale, or (iii) Parent Financing.
“Material Adverse Effect” means any change, event, circumstance, or effect that, individually or in the aggregate with other changes, events, circumstances or effects, (a) has had or would reasonably be expected to result in or cause a material adverse effect on the business, operations, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or other) or prospects of the Company as a whole; provided, however, that none of the following shall be deemed to constitute, and none of the following shall be taken into account in determining whether there has been a Material Adverse Effect: (i) changes in general economic conditions in the United States, unless such changes disproportionately affect the Company as compared to other Persons or businesses that operate in the industry in which the Company operates; or (ii) changes in GAAP after the Closing; or (b) could reasonably be expected to materially impair or materially delay the ability of the Company to perform under this Agreement or the other Operative Documents.
“Material Contract” has the meaning set forth in Section 2.12(a).
“Merger” has the meaning set forth in Section 1.1.
“Merger Consideration” an amount in cash equal to (i) $165,000,000, plus (ii) the Cash on Hand as of immediately before the Closing, plus (iii) the Net Working Capital Surplus, if any, plus (iv) the Earnout Payment or portion thereof that is earned in accordance with Section 1.11, if any, minus (v) the Exchanged Amount, minus (vi) the unpaid Transaction Costs of the Company as of the Closing Calculation Time, minus (vii) the amount of any outstanding Debt of the Company as of the Closing Calculation Time, minus (viii) the Net Working Capital Deficiency, if any (in the case of clauses (ii) through (viii), each as set forth on the Estimated Closing Certificate).
“Minimum Revenue” means $[***].
“Net Working Capital” means (i) Current Assets of the Company as of the Closing Calculation Time (excluding any Cash on Hand to the extent included in the calculation of the Merger Consideration) minus (ii) the Current Liabilities of the Company as of the Closing Calculation Time (excluding to the extent included in the calculation of the Merger Consideration, Debt and Transaction Costs), determined on a consolidated basis in accordance with the Accounting Principles. Annex B sets forth an example, for illustrative purposes only, of a calculation of Net Working Capital estimated as of the date set forth therein to demonstrate the Parties’ agreement as to the methodology that shall be used in determining Net Working Capital.
“Net Working Capital Deficiency” means the amount, if any, by which the Net Working Capital, as finally determined pursuant to Section 1.8, is less than the Net Working Capital Target.
“Net Working Capital Surplus” means the amount, if any, by which the Net Working Capital, as finally determined pursuant to Section 1.8, is greater than the Net Working Capital Target.
“Net Working Capital Target” means $[***].
“Notice of Objection” has the meaning set forth in Section 1.11(c).
“OCI” has the meaning set forth in Section 2.21(m).
“OFCCP” has the meaning set forth in Section 2.9(h).
“Offer Letter” has the meaning set forth in the recitals.
“Open Source License” means any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license, including any license approved by the Open Source Initiative, or any Creative Commons License. For the avoidance of doubt, Open Source Licenses include Copyleft Licenses.
“Open Source Materials” means any Software or content subject to an Open Source License.
“Operative Document” and collectively “Operative Documents” means each of this Agreement and the other agreements and certificates (including the Estimated Closing Certificate) referenced in this Agreement to be executed and delivered on the date hereof or at the Closing.
“Order” or “Orders” means any decree, injunction, judgment, order, ruling, writ, charge, verdict, debarment, assessment or arbitration award of any Governmental Body, arbitrator or arbitral body, whether arising from a Claim or applicable Law, or any binding settlement or mediation agreement.
“Outbound Investment Security Program” has the meaning set forth in Section 2.22.
“Outbound Licenses” means all Contracts to which the Company is a party and pursuant to which any Person is authorized to Exploit any Company IP (other than nondisclosure agreements, licenses granted to service providers solely for the benefit of the Company, or any non-exclusive licenses granted to customers of the Company’s products or services).
“Pandemic Response Laws” means the CARES Act, the Families First Coronavirus Response Act, the COVID-related Tax Relief Act of 2020, the Presidential Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, as issued on August 8, 2020 and including any administrative or other guidance published with respect thereto by any Governmental Body (including IRS Notice 2020-65), and any other similar or additional federal, state, local, or foreign Law, or administrative guidance intended to benefit taxpayers in response to the COVID-19 pandemic and associated economic downturn.
“Parent” has the meaning set forth in the first paragraph of this Agreement.
“Parent Credit Facility” has the meaning set forth in Section 1.11(d).
“Parent Financing” means the first issuance and sale by Parent of preferred stock of Parent following the Closing for bona fide capital raising purposes; provided that Parent Financing shall not include (i) the sale of Series E Preferred Stock of Parent in connection with, or following, the Closing, or (ii) the issuance or sale of preferred stock of Parent in connection with an acquisition, strategic partnership, secondary sale, or other transaction the primary purpose of which is not capital raising.
“Parent IPO” means the sale of shares of common stock of Parent to the public in a firm-commitment public offering pursuant to effective registration statement under the Securities Act of 1933, as amended, resulting in at least $100,000,000 of proceeds, net of the underwriting discount and commissions, to Parent.
“Parent Sale” means (i) a transaction or series of related transaction in which a Person, or a group of related Persons, acquires from stockholders of Parent share representing more than 50% of the outstanding voting power of the Company, (ii) a merger, consolidation, statutory conversion, transfer, domestication, or continuance in which Parent is a constituent party or a subsidiary of Parent is a
constituent party and Parent issues shares of capital stock pursuant to such merger, consolidation, statutory conversion, transfer, domestication, or continuance, except any such merger, consolidation, statutory conversion, transfer, domestication, or continuance involving Parent or a subsidiary of Parent in which the shares of capital stock of Parent outstanding immediately prior to such merger, consolidation, statutory conversion, transfer, domestication, or continuance continue to represent, or are converted into or exchanged for shares of capital stock or other equity interests that represent, immediately following such merger, consolidation, statutory conversion, transfer, domestication, or continuance, a majority by voting power of the capital stock or other equity interests of the surviving or resulting corporation or entity, or if the surviving or resulting corporation or entity is a wholly owned subsidiary of another corporation or entity immediately following such merger, consolidation, statutory conversion, transfer, domestication, or continuance, the parent corporation or entity of such surviving or resulting corporation or entity, or (iii) the sale, lease, transfer, exclusive license, or other disposition, in a single transaction or series of related transactions, by Parent or any subsidiary of Parent of all or substantially all of the assets of the Parent and its subsidiaries, taken as a whole, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of Parent.
“Parent Series E Preferred Stock” means Parent’s Series E Preferred Stock, $0.0001 par value per share.
“Parties” has the meaning set forth in the first paragraph of this Agreement.
“Paying Agent” has the meaning set forth in Section 1.6(e)(i).
“Paying Agent Agreement” has the meaning set forth in Section 1.6(e)(i).
“Payoff Letter” has the meaning set forth in Section 5.5(m).
“Per Share Closing Merger Consideration” means an amount in cash equal to (i) the Closing Merger Consideration, divided by (ii) the Common Stock Outstanding, rounded down to the nearest whole cent.
“Permitted Encumbrances” means (a) conditional sales or similar security interests granted in connection with the purchase of equipment or supplies in the ordinary course of business, (b) liens and assessments for (x) current Taxes not yet due and payable or (y) being contested in good faith by any appropriate proceedings for which adequate reserves have been established on the Company Balance Sheet in accordance with GAAP, or (c) statutory liens securing indebtedness owed by the Company, which was incurred in the ordinary course of business and is not yet due and payable.
“Person” means any individual, corporation, partnership, trust, joint venture, limited liability company, association, organization, other entity or Governmental Body or regulatory authority.
“Personal Data” means any information or data that either (i) relates to an identified or identifiable natural person, or that is reasonably capable of being used to identify, contact, or precisely locate a natural person, household or a particular computing system or device; or (ii) is defined as “personally identifiable information,” “personal information,” “personal data,” or other similar term, by any applicable Privacy Requirements.
“Personal Property” has the meaning set forth in Section 2.8(d).
“Plans” shall mean the Company’s 2008 Equity Incentive Plan and 2018 Equity Incentive Plan, each, as amended from time to time.
“Policy Excluded Matters” has the meaning set forth in Section 7.2(a).
“Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and that portion of any Straddle Period ending on (and including) the Closing Date.
“Pre-Closing Taxes” means any and all Taxes (or the non-payment thereof) and claims for Taxes (a) imposed on the Company or for which the Company may otherwise be liable, in each case, that are attributable to any Pre-Closing Tax Period (including, any Taxes relating to deferred revenue accrued, or prepaid amounts received on or before the Closing Date, any Taxes arising as a result of any accounting method changes initiated by the Company prior to the Closing, including any Taxes related to the Company changing from the cash method of Tax accounting to the accrual method of Tax accounting, including pursuant to the transactions contemplated by this Agreement, any Taxes relating to a Pre-Closing Tax Period that are deferred to a taxable period ending after the Closing Date pursuant to Pandemic Response Laws or Sections 451(c) or 481 of the Code (or any similar provision of state, local or non-U.S. Law) and any Taxes imposed pursuant to Sections 951 or 951A of the Code with respect to income earned by a Subsidiary in any Pre-Closing Tax Period), (b) of any member of an Affiliated Group of which the Company is or was a member on or before the Closing Date, including pursuant to Treasury Regulations Section 1.1502-6 (or any predecessor or successor thereof or any analogous or similar state, local or foreign Law or regulation), (c) of any Person imposed on the Company as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring on or before the Closing, and (d) arising as a result of the transactions contemplated by this Agreement (including any Transfer Taxes and Transaction Payroll Taxes). In the case of any Straddle Period, the amount of any personal property, real property, or other ad valorem Taxes which relate to Pre-Closing Tax Periods imposed on a periodic basis shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in the Straddle Period and, in any other case (including, for the avoidance of doubt, the amount of any Taxes based on or measured by income or receipts) the amount of any Taxes for Pre-Closing Tax Periods shall be determined based on an interim closing of the books as of the close of business on the Closing Date (and in the case of any Taxes attributable to the ownership of any equity interest in any partnership or other “flowthrough” entity or “controlled foreign corporation” (within the meaning of Section 957(a) of the Code or any comparable state, local or non-U.S. Law), as if the taxable period of such partnership or other “flowthrough” entity or “controlled foreign corporation” ended as of the end of the Closing Date).
“Privacy Laws” means, in each case as updated from time-to-time: (A) each applicable Law in any applicable jurisdiction concerning (i) the privacy, secrecy, security, protection, sharing, sale, disposal, international transfer or other Processing of Personal Data, (ii) incident reporting or Data Breach notification requirements, (iii) direct marketing, e-mails, communication by text messages or initiation, transmission, monitoring, recording, or receipt of communications (in any format, including without limitation voice, video, email, phone, text messaging, or otherwise), (iv) artificial intelligence involving the Processing of Personal Data, or (v) consumer protection Laws related to the privacy, security, or protection of Personal Data; and (B) guidance issued by a Governmental Body and recommendations and deliberations of the relevant privacy commissioners and other privacy, Personal Data protection, and data protection authorities that pertain to one of the Laws, rules or standards outlined in clause (A).
“Privacy Policy” or “Privacy Policies” means each external or internal, past or present, policy, representation, statement, or notice made by the Company, including without limitation, privacy policies published on the Company’s online properties, or otherwise made available by the Company to any Person, relating to the Processing of Sensitive Data.
“Pro Rata Share” means, with respect to each Indemnifying Party, a percentage equal to (i) the number of shares of Common Stock held by such Indemnifying Party immediately prior to the Effective Time, divided by (ii) the aggregate number of shares of Common Stock outstanding immediately prior to the Effective Time, multiplied by (iii) 100; provided, however, for purposes of calculating the Pro Rata Share, the Contributed Shares shall be included in clauses (i) and (ii) above.
“Process or Processing” means any operation or set of operations, with respect to data, whether or not by automated means, such as the use, collection, processing, storage, recording, organization, adaption, alteration, transfer, retrieval, consultation, disclosure, dissemination, combination, erasure, or destruction of such data, or any other operation that is otherwise considered “processing” or similar term under applicable Laws.
“Real Property” has the meaning set forth in Section 2.8(b).
“Reconciled Cash on Hand” has the meaning set forth in Section 1.8(c).
“Reconciled Debt” has the meaning set forth in Section 1.8(c).
“Reconciled Net Working Capital” has the meaning set forth in Section 1.8(c).
“Reconciled Net Working Capital Deficiency” means the amount, if any, by which the Reconciled Net Working Capital, as finally determined pursuant to Section 1.8, is less than the Net Working Capital Target.
“Reconciled Net Working Capital Surplus” means the amount, if any, by which the Reconciled Net Working Capital, as finally determined pursuant to Section 1.8, is greater than the Net Working Capital Target.
“Reconciled Transaction Costs” has the meaning set forth in Section 1.8(c).
“Reconciliation Statement” has the meaning set forth in Section 1.8(c).
“Registered Company IP” has the meaning set forth in Section 2.11(b)(ii).
“Representatives” means, with respect to any Person, their respective directors, officers, employees, shareholders, Affiliates, financial advisors, attorneys, accountants or other representatives.
“Required Consents” has the meaning set forth in Section 5.5(k).
“Required Contracts” has the meaning set forth in Section 5.5(l).
“Requisite Approval” has the meaning set forth in Section 2.2(b).
“Residual Rights” has the meaning set forth in recitals.
“Restrictive Covenant Agreement” has the meaning set forth in the recitals.
“Restrictive Covenant Agreement Parties” has the meaning set forth in the recitals.
“Sanctioned Country” means any country or region that is the subject or target of a comprehensive embargo under applicable Sanctions Laws (including Russia, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine).
“Sanctioned Person” means any Person that is the subject or target of sanctions or restrictions under applicable Sanctions Laws or Export-Import Laws, including: (i) any Person listed on any applicable U.S. or non-U.S. sanctions- or export-related restricted party list, including the Specially Designated Nationals and Blocked Persons List, administered by the United States Department of Treasury’s Office of Foreign Assets Control (“OFAC”); (ii) any entity that is, in the aggregate, fifty percent (50%) or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (i); or (iii) any Person located or resident in a Sanctioned Country.
“Sanctions Laws” means all U.S. and non-U.S. Laws relating to economic or trade sanctions, including the Laws administered or enforced by the United States (including by OFAC or the U.S. Department of State) and the United Nations Security Council.
“Secondary Counsel” has the meaning set forth in Exhibit H.
“Sensitive Data” means all (i) Personal Data and (ii) other proprietary, sensitive, regulated, or confidential information in the Company’s possession, custody or control.
“Sensitive Disclosure Supplement” means the Company Disclosure Schedule supplement designated as the “Sensitive Disclosure Supplement” made available by the Company to Parent on the date of this Agreement on a confidential basis.
“Shareholder” means a holder of Common Stock.
“Software” means any and all computer programs, software source code, object code, development tools, programmer notes, specifications, user interfaces and related “look and feel”.
“Source Code” means the human readable source code for any Software that is part of the Company IP as well as any confidential or proprietary information relating to any Software source code or any of the Company IP.
“Specified Tax Liabilities” means any Liabilities of or with respect to the Company for any Pre-Closing Tax Period relating to failure to withhold applicable federal and state income Taxes with respect to stock grants made by the Company to its employees.
“Standardization Organization” has the meaning set forth in Section 2.11(m).
“Stock Purchase Rights” means rights of first refusal or offer, preemptive rights, options, warrants, conversion rights, convertible notes, simple agreements for future equity (SAFEs) and other rights, understandings, agreements or promises, either direct or indirect, for the purchase, acquisition or transfer from the Company or any other Person of any shares of the capital stock of the Company, or any securities or instruments directly or indirectly convertible into or exercisable or exchangeable for shares of the capital stock of the Company.
“Straddle Period” means a taxable period beginning before and ending after the Closing Date.
“Subsidiary” means, with respect to any party, any corporation or other organization, whether incorporated or unincorporated, of which (i) at least 50% of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly controlled by such party, corporation or organization or by any one or more of its Subsidiaries, or (ii) such party, corporation or organization or any other Subsidiary of such party, corporation nor organization is a general partner (excluding any such partnership where such party, corporation or organization or any Subsidiary of such party does not have a majority of the voting interest in such partnership).
“Survival Period” has the meaning set forth in Section 7.1.
“Tail Policies” has the meaning set forth in Section 4.8.
“Takeover Statute” means a “fair price,” “moratorium,” “control share acquisition” or other similar antitakeover Law enacted under state of federal Laws in the United States.
“Tax” or “Taxes” means any and all (a) domestic or foreign, federal, state or local taxes, charges, fees, levies, imposts, escheat for unclaimed property, duties and governmental fees or other like assessments or charges of any kind whatsoever, including income taxes (whether imposed on or measured by net income, gross income, income as specially defined, earnings, profits, or selected items of income, earnings, or profits), capital taxes, indirect capital gains taxes, gross receipts taxes, environmental taxes, sales taxes, use taxes, value added taxes, goods and services taxes, Transfer Taxes, franchise taxes, license taxes, withholding taxes or other withholding obligations, payroll taxes, employment taxes, excise taxes, severance taxes, social security premiums, workers’ compensation premiums, employment insurance or compensation premiums, stamp taxes, occupation taxes, premium taxes, ad valorem taxes, property taxes, windfall profits taxes, alternative or add-on minimum taxes, and customs duties; (b) interest, penalties, fines, additions to tax or additional amounts imposed by any taxing authority in connection with (i) any item described in clause (a) above or (ii) the failure to comply with any requirement imposed with respect to any Tax Returns; and (c) liabilities in respect of any items described in clause (a) or clause (b) above payable by reason of Contract, assumption, transferee liability, operation of Law or otherwise.
“Tax Contest” means any inquiry, audit, examination, hearing, trial, appeal, or other administrative or judicial proceeding with respect to any Taxes or Tax Return of the Company that could reasonably give rise to a claim for indemnification of Taxes by the Indemnified Parties pursuant to this Agreement.
“Tax Return” means any report, return, statement or other written information, including any schedules or attachments thereto and any amendment thereof, supplied or required to be supplied to a taxing authority.
“Technology” means all products, tools, devices, mask works, computer programs, software, source code, object code, development tools, techniques, concepts, know-how, algorithms, methods, processes, procedures, formulae, designs, drawings, customer lists, supplier lists, databases, data collections, information, specifications, brands, logos, marketing materials, user interfaces, websites, programmer notes, specifications, packaging, trade dress, content, graphics, artwork, audiovisual works, images, photographs, literary works, performances, music, sounds, content, user interfaces, “look and
feel,” inventions (whether or not patentable), invention disclosures, discoveries, works of authorship (whether or not copyrightable), and other technology.
“Texas Corporation Law” means the Texas Corporation Law of the State of Texas.
“Third Party IP” means any Company IP for which the Company does not own all right, title and interest and which is licensed to the Company under an Inbound License.
“Total Deferred Payments” means the Deferred Payment, plus the accrued Deferred Payment Interest, if any.
“Trade Control Laws” has the meaning set forth in Section 2.14(d).
“Transaction Costs” means, whether or not billed or accrued, without duplication, all unpaid fees, costs and expenses of the Company incident to the negotiation, preparation and execution of this Agreement and the other Operative Documents that remain outstanding at Closing, and the consummation of the transactions contemplated hereby and thereby, including (a) legal and accounting fees and expenses, (b) the maximum amount of financial advisory and investment banker fees and expenses, including success fees and notwithstanding any contingencies for earn-outs, escrows, etc., (c) any change of control bonuses, compensation, severance, accelerated payments or other payments to or in respect of any director, officer employee, consultant, advisor, contractor, Affiliate or other Person (including the employer portion of any employment, payroll or similar Taxes imposed on such amounts), (d) fifty percent (50%) of the costs for the Transaction Insurance Policy, the Paying Agent Agreement, and Tail Policies, and (e) any change of control, consent or similar costs or payments, in each case arising in connection with or resulting from this Agreement, the other Operative Documents, or the consummation of the transactions contemplated hereby or thereby; provided that the full cost of the Tail Policies shall be deemed to be Transaction Costs; provided, however, that Parent shall bear 100% of the cost of the HSR Act filing fees described in the first sentence of Section 4.4(b) and such cost shall be excluded from the definition of Transaction Costs.
“Transaction Insurance Carrier” means Beazley Excess and Surplus Insurance, Inc.
“Transaction Insurance Policy” means a buyer’s-side representations and warranties insurance policy with the Transaction Insurance Carrier to be effective as of the Closing Date. Parent shall ensure that the Transaction Insurance Policy shall include terms to the effect of the following: (a) that the insurer of the Transaction Insurance Policy waives its rights (other than in the case of Fraud) to bring any claim against the Shareholder or any of their respective Affiliates by way of subrogation, claim for contribution or otherwise; (b) Fraud of any Shareholder shall not be imputed to any other Shareholder; (c) the Transaction Insurance Policy shall not be amended, modified or otherwise supplemented in any manner materially adverse to the Shareholders; and (d) each Shareholder is an express third party beneficiary under the Transaction Insurance Policy with respect to the terms described in this sentence.
“Transaction Payroll Taxes” means the employer portion of employment, payroll or similar Taxes incurred in connection any compensatory payments made in connection with the transactions contemplated by this Agreement, whether payable by Parent or the Company or any Affiliate of the foregoing, and regardless of when paid or accrued.
“Transactions” means the Merger, the Contributions, and the other transactions contemplated by the Ancillary Agreements.
“Transfer Taxes” means any transfer, sales, use, documentary, conveyance, value added, excise, stamp, recording, registration, indirect capital gains and any similar Taxes and fees incurred in connection with the transactions contemplated by this Agreement.
“Written Consent” means the action by written consent executed by the Shareholders constituting the Requisite Approval that approves and adopts this Agreement, the Merger and the other transactions contemplated hereby in the form attached hereto as Exhibit A.
SEVENTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HAWKEYE 360, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
HawkEye 360, 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:
1. That the name of this corporation is HawkEye 360, Inc. (the “Corporation”). The Corporation was originally incorporated pursuant to the General Corporation Law on September 16, 2015 by the filing of a Certificate of Incorporation with the Secretary of State of Delaware. An Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of Delaware on November 22, 2016, which certificate was amended by the filing with the Secretary of State of Delaware on June 26, 2017 of a First Amendment to Amended and Restated Certificate of Incorporation. A Second Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of Delaware on August 10, 2018. A Third Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of Delaware on August 5, 2019. A Fourth Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of Delaware on April 9, 2021. A Fifth Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of Delaware on November 5, 2021, which certificate was amended by the filing with the Secretary of State of Delaware on December 20, 2021 of a Certificate of Amendment of Fifth Amended and Restated Certificate of Incorporation. A Sixth Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of Delaware on July 7, 2023 (the “Restated Certificate”).
2. That the Board of Directors of the Corporation (the “Board”) duly adopted resolutions proposing to amend and restate the Restated Certificate, declaring said amendment and restatement to be advisable and in the best interests of this corporation and its stockholders, and authorizing the appropriate officers of this corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment and restatement is as follows:
RESOLVED, that the Restated Certificate be amended and restated in its entirety to read as follows:
FIRST: The name of this Corporation is HawkEye 360, Inc.
SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.
FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is (i) 111,000,000 shares of Common Stock, $0.0001 par value per share (“Common Stock”) and (ii) 77,003,772 shares of Preferred Stock, $0.0001 par value per share (“Preferred Stock”), of which 7,312,500 are designated Series A-1 Preferred Stock (“Series A-1 Preferred Stock”), 12,680,908 are designated Series A-2 Preferred Stock (“Series A-2 Preferred Stock”), 4,953,746 are designated Series A-3 Preferred Stock (“Series A-3 Preferred Stock,” and, collectively with Series A-1 Preferred Stock and Series A-2 Preferred Stock, “Series A Preferred Stock”), 11,574,841 are designated Series B Preferred Stock, (“Series B Preferred Stock”), 6,960,439 are designated Series C Preferred Stock (“Series C Preferred Stock”), 12,857,720 are designated Series D Preferred Stock (“Series D Preferred Stock”), 6,085,161 are designated Series D-1 Preferred Stock (“Series D-1 Preferred Stock”) and 14,578,457 are designated Series E Preferred Stock (“Series E Preferred Stock”),
The following is a statement of the designations and the powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock of the Corporation.
A. COMMON STOCK
1. General. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights, powers and preferences of the holders of the Preferred Stock set forth herein.
2. Voting. The holders of the Common Stock are entitled to one vote for each share of Common Stock held at all meetings of stockholders (and written actions in lieu of meetings); provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Seventh Amended and Restated Certificate of Incorporation (this “Certificate of Incorporation”) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation or pursuant to the General Corporation Law. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by (in addition to any vote of the holders of one or more series of Preferred Stock that may be required by the terms of this Certificate of Incorporation) the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.
B. PREFERRED STOCK
The rights, preferences, powers, privileges and restrictions, qualifications and limitations granted to and imposed on the Preferred Stock are set forth below. Unless otherwise indicated, references to “sections” or “subsections” in this Part B of this Article Fourth refer to sections and subsections of Part B of this Article Fourth.
1. Dividends.
1.1 The holders of outstanding shares of Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock, on a pari passu basis, shall be entitled to receive dividends at the rate per annum of eight percent (8%) of the Series E Original Issue Price, Series D Original Issue Price or Series D-1 Original Issue Price, as applicable (as defined below) (subject to appropriate adjustment in the
event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock, as applicable) (the “Series E, Series D and D-1 Dividends”); provided that, such Series E, Series D and D-1 Dividends shall be payable only when, as, and if declared by the Board and the Corporation shall be under no obligation to pay such Series E, Series D and D-1 Dividends until so declared. The right to receive dividends on shares of Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock shall not be cumulative, and no right to dividends shall accrue to holders of Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock by reason of the fact that dividends on said shares are not declared or paid. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock (including the Series C Preferred Stock (other than the Series C Accruing Dividends), Series B Preferred Stock, Series A Preferred Stock or Common Stock) of the Corporation (other than dividends on shares of Common Stock payable in shares of Common Stock and the Series C Accruing Dividends, which, for the avoidance of doubt, may be issued without compliance with this Subsection 1.1) unless (in addition to the obtaining of any consents required elsewhere in this Certificate of Incorporation) the holders of the Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock then outstanding shall first receive, or simultaneously receive, in addition to the dividends payable pursuant to the first sentence of this Subsection 1.1, a dividend on each outstanding share of such Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock, as applicable, in an amount equal to (A) in the case of a dividend on Common Stock, Preferred Stock, or any class or series that is convertible into Common Stock, that dividend per share of such Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock, as applicable, as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of such Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock, as applicable, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of such Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock, as applicable, determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Series E Original Issue Price, Series D Original Issue Price or Series D-1 Original Issue Price, as applicable; provided that if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock, as applicable, pursuant to this Subsection 1.1 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock dividend, as applicable.
1.2 From and after the date of the issuance of any shares of Series C Preferred Stock, the holders of outstanding shares of Series C Preferred Stock shall be entitled to receive dividends at the rate per annum of four percent (4%) of the Series C Original Issue Price (as defined below) (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series C Preferred Stock) (the “Series C Accruing Dividends”). The Series C Accruing Dividends shall accrue from day to day, whether or not declared, and shall be cumulative; provided that, except as set forth in Subsection 2.2, such Series C Accruing Dividends shall be payable only when, as, and if declared by the Board and the Corporation shall be under no obligation to pay such Series C Accruing Dividends. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock (including Series B Preferred Stock, Series
A Preferred Stock or Common Stock) of the Corporation (other than dividends on shares of Common Stock payable in shares of Common Stock, which, for the avoidance of doubt, may be issued without compliance with this Subsection 1.2) unless (in addition to the obtaining of any consents required elsewhere in this Certificate of Incorporation) the holders of the Series C Preferred Stock then outstanding shall first receive, or simultaneously receive, in addition to the dividends payable pursuant to the first sentence of this Section 1.2, a dividend on each outstanding share of such Series C Preferred Stock in an amount equal to (A) in the case of a dividend on Common Stock, Preferred Stock, or any class or series that is convertible into Common Stock, that dividend per share of such Series C Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of such Series C Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of such Series C Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Series C Original Issue Price; provided that if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series C Preferred Stock pursuant to this Subsection 1.2 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series C Preferred Stock dividend.
1.3 The holders of outstanding shares of Series B Preferred Stock shall be entitled to receive dividends at the rate per annum of eight percent (8%) of the Series B Original Issue Price (as defined below) (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock) (the “Series B Dividends”); provided that, such Series B Dividends shall be payable only when, as, and if declared by the Board and the Corporation shall be under no obligation to pay such Series B Dividends until so declared. The right to receive dividends on shares of Series B Preferred Stock shall not be cumulative, and no right to dividends shall accrue to holders of Series B Preferred Stock by reason of the fact that dividends on said shares are not declared or paid. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock (including Series A Preferred Stock or Common Stock) of the Corporation (other than dividends on shares of Common Stock payable in shares of Common Stock, the Series E, Series D and D-1 Dividends and the Series C Accruing Dividends, which, for the avoidance of doubt, may be issued without compliance with this Subsection 1.3) unless (in addition to the obtaining of any consents required elsewhere in this Certificate of Incorporation) the holders of the Series B Preferred Stock then outstanding shall first receive, or simultaneously receive, in addition to the dividends payable pursuant to the first sentence of this Section 1.3, a dividend on each outstanding share of such Series B Preferred Stock in an amount equal to (A) in the case of a dividend on Common Stock, Preferred Stock, or any class or series that is convertible into Common Stock, that dividend per share of such Series B Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of such Series B Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of such Series B Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Series B Original Issue Price; provided that if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series B Preferred Stock pursuant to this Subsection 1.3 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series B Preferred Stock dividend.
1.4 The holders of outstanding shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock shall be entitled to receive, on a pari passu basis, dividends at the rate per annum of eight percent (8%) of the applicable Original Issue Price (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A-2 Preferred Stock and Series A-3 Preferred Stock) (the “Series A-2/A-3 Dividends”); provided that, such Series A-2/A-3 Dividends shall be payable only when, as and if declared by the Board and the Corporation shall be under no obligation to pay such Series A-2/A-3 Dividends until so declared. The right to receive dividends on shares of Series A-2 Preferred Stock and Series A-3 Preferred Stock shall not be cumulative, and no right to dividends shall accrue to holders of A-2 Preferred Stock and Series A-3 Preferred Stock by reason of the fact that dividends on said shares are not declared or paid. The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation that is junior to the Series A-2 Preferred Stock or Series A-3 Preferred Stock (including Series A-1 Preferred Stock or Common Stock) (other than dividends on shares of Common Stock payable in shares of Common Stock, the Series E, Series D and D-1 Dividends and the Series C Accruing Dividends, which, for the avoidance of doubt, may be issued without compliance with this Subsection 1.4) unless (in addition to the obtaining of any consents required elsewhere in this Certificate of Incorporation) the holders of the Series A-2 Preferred Stock and Series A-3 Preferred Stock then outstanding shall first receive, or simultaneously receive, in addition to the dividends payable pursuant to the first sentence of this Subsection 1.4, on a pari passu basis, a dividend on each outstanding share of such Series A-2 Preferred Stock and Series A-3 Preferred Stock in an amount at least equal to (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of such Series A-2 Preferred Stock and/or Series A-3 Preferred Stock, as applicable, as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of such Series A-2 Preferred Stock and/or Series A-3 Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of such Series A-2 Preferred Stock and/or Series A-3 Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the applicable Original Issue Price of such Series A-2 Preferred Stock and/or Series A-3 Preferred Stock; provided that if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series A-2 Preferred Stock and/or Series A-3 Preferred Stock pursuant to this Subsection 1.4 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Series A-2 Preferred Stock and Series A-3 Preferred Stock dividend.
1.5 The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation other than dividends on shares of Common
Stock payable in shares of Common Stock, the Series E, Series D and D-1 Dividends, the Series C Accruing Dividends, the Series B Dividends, and the Series A-2/A-3 Dividends, which, for the avoidance of doubt, may be issued, in each case, without compliance with this Subsection 1.5 unless (in addition to the obtaining of any consents required elsewhere in this Certificate of Incorporation) the holders of the Series A-1 Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Series A-1 Preferred Stock in an amount at least equal to (i) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Series A-1 Preferred Stock as would equal the product of (A) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (B) the number of shares of Common Stock issuable upon conversion of a share of Series A-1 Preferred Stock, in each case calculated on the record date for determination of holders entitled to receive such dividend or (ii) in the case of a dividend on any class or series that is not convertible into Common Stock, at a rate per share of Series A-1 Preferred Stock determined by (A) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (B) multiplying such fraction by an amount equal to the Series A-1 Original Issue Price (as defined below); provided that, if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation, the dividend payable to the holders of Series A-1 Preferred Stock pursuant to this Subsection 1.5 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Preferred Stock dividend for such holders.
1.6 For purposes hereof: (a) the “Series A-1 Original Issue Price” shall mean $0.4444 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A-1 Preferred Stock, (b) the “Series A-2 Original Issue Price” shall mean $1.2918 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A-2 Preferred Stock, (c) the “Series A-3 Original Issue Price” shall mean $3.2386 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series A-3 Preferred Stock, (d) the “Series B Original Issue Price” shall mean $6.0476 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock, (e) the “Series C Original Issue Price” shall mean $7.9880 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series C Preferred Stock, (f) the “Series D Original Issue Price” shall mean $11.7439 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series D Preferred Stock, (g) the “Series D-1 Original Issue Price” shall mean $11.1747 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series D-1 Preferred Stock and (h) the “Series E Original Issue Price” shall mean $18.86343 per share, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series E Preferred Stock. The Series A-1 Original Issue Price, Series A-2 Original Issue Price, Series A-3 Original Issue Price, Series B Original Issue Price, Series C Original Issue Price, Series D Original Issue Price, Series D-1 Original Issue Price and Series E Original Issue Price are each sometimes referred to herein as the applicable “Original Issue Price.”
1.7 Notwithstanding anything in this section to the contrary, the Corporation shall not declare, pay or set aside any dividends on shares of Series B Preferred Stock unless the Corporation
also declares, pays or sets aside a proportionate dividend on shares of all Series A Preferred Stock in accordance with this Section 1.
2. Liquidation, Dissolution or Winding Up; Certain Mergers, Consolidations and Asset Sales.
2.1 Preferential Payments to Holders of Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock.
2.1.1 In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the holders of shares of Series E Preferred Stock, Series D Preferred Stock and Series D-1 Preferred Stock then outstanding shall be entitled, on a pari passu basis, to be paid out of the assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of Series C Preferred Stock, Series B Preferred Stock, Series A Preferred Stock and Common Stock, by reason of their ownership thereof, an amount per share equal to the greater of (i) the applicable Original Issue Price, plus any dividends declared but unpaid thereon, and (ii) the amount per share of such Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock, as the case may be, would have been payable had all shares of such Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock, as applicable, (and all shares of all other series of Preferred Stock that would receive a larger distribution per share if such series of Preferred Stock were converted into Common 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 “Series E Preferred Liquidation Amount” in the case of the Series E Preferred Stock, “Series D Preferred Liquidation Amount” in the case of the Series D Preferred Stock and “Series D-1 Preferred Liquidation Amount” in the case of the Series D-1 Preferred Stock).
2.1.2 If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock, as applicable, the full amount to which they shall be entitled under Subsection 2.1.1, the holders of shares of Series E Preferred Stock, Series D Preferred Stock or Series D-1 Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
2.2 Preferential Payments to Holders of Series C Preferred Stock.
2.2.1 In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the holders of shares of Series C Preferred Stock then outstanding shall be entitled to be paid, after the payment of the Series E Preferred Liquidation Amount, Series D-1 Preferred Liquidation Amount and Series D Preferred Liquidation Amount, out of the assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of Series B Preferred Stock, Series A Preferred Stock and Common Stock, by reason of their ownership thereof, an amount per share equal to the greater of (i) the Series C Original Issue Price, plus any Series C Accruing Dividends accrued but unpaid thereon, whether or not declared, together with any other dividends declared but unpaid thereon, and (ii) the amount per share of such Series C Preferred Stock as would have been payable had all shares of such Series C Preferred Stock (and all shares of all
other series of Preferred Stock that would receive a larger distribution per share if such series of Preferred Stock were converted into Common 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 “Series C Preferred Liquidation Amount”).
2.2.2 If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, after the payment of the Series E Preferred Liquidation Amount, Series D-1 Preferred Liquidation Amount and Series D Preferred Liquidation Amount, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series C Preferred Stock the full amount to which they shall be entitled under Subsection 2.2.1, the holders of shares of Series C Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
2.3 Preferential Payments to Holders of Series B Preferred Stock.
2.3.1 In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the holders of shares of Series B Preferred Stock then outstanding shall be entitled to be paid, after the payment of the Series E Preferred Liquidation Amount, Series D-1 Preferred Liquidation Amount, Series D Preferred Liquidation Amount and the Series C Preferred Liquidation Amount out of the assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of Series A Preferred Stock and Common Stock, by reason of their ownership thereof, an amount per share equal to the greater of (a) the Series B Original Issue Price, plus any dividends declared but unpaid thereon, and (b) the amount per share of such Series B Preferred Stock as would have been payable had all shares of such Series B Preferred Stock (and all shares of all other series of Preferred Stock that would receive a larger distribution per share if such series of Preferred Stock were converted into Common 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 “Series B Preferred Liquidation Amount”).
2.3.2 If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, after the payment of the Series E Preferred Liquidation Amount, Series D-1 Preferred Liquidation Amount, Series D Preferred Liquidation Amount and the Series C Preferred Liquidation Amount, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series B Preferred Stock the full amount to which they shall be entitled under Subsection 2.3.1, the holders of shares of Series B Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
2.4 Preferential Payments to Holders of Series A Preferred Stock.
2.4.1 In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the holders of shares of Series A Preferred Stock then outstanding shall be entitled to be paid, after the payment of the Series E Preferred Liquidation Amount, Series D-1 Preferred Liquidation Amount, Series D Preferred Liquidation Amount, the Series C
Preferred Liquidation Amount and the Series B Preferred Liquidation Amount out of the remaining assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of Common Stock, by reason of their ownership thereof, an amount per share equal to (i) with respect to the Series A-3 Preferred Stock, the greater of (a) the Series A-3 Original Issue Price, plus any dividends declared but unpaid thereon, and (b) the amount per share of such Series A-3 Preferred Stock as would have been payable had all shares of such Series A-3 Preferred Stock (and all shares of all other series of Preferred Stock that would receive a larger distribution per share if such series of Preferred Stock were converted into Common Stock) been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event, (ii) with respect to the Series A-2 Preferred Stock, the greater of (a) the Series A-2 Original Issue Price, plus any dividends declared but unpaid thereon, and (b) the amount per share of such Series A-2 Preferred Stock as would have been payable had all shares of such Series A-2 Preferred Stock (and all shares of all other series of Preferred Stock that would receive a larger distribution per share if such series of Preferred Stock were converted into Common Stock) been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event, and (iii), with respect to the Series A-1 Preferred Stock, the greater of (a) the Series A-1 Original Issue Price, plus any dividends declared but unpaid thereon, and (b) the amount per share of such Series A-1 Preferred Stock as would have been payable had all shares of such Series A-1 Preferred Stock (and all shares of all other series of Preferred Stock that would receive a larger distribution per share if such series of Preferred Stock were converted into Common 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 to each series of Series A Preferred Stock is hereinafter referred to as the “Series A Preferred Liquidation Amount” applicable to such series of Series A Preferred Stock, and the Series A Preferred Liquidation Amount, Series B Preferred Liquidation Amount, Series C Preferred Liquidation Amount, Series D Preferred Liquidation Amount, Series D-1 Preferred Liquidation Amount and Series E Preferred Liquidation Amount are each sometimes referred to herein as the “Preferred Liquidation Amount”).
2.4.2 If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, after the payment of the Series E Preferred Liquidation Amount, Series D-1 Preferred Liquidation Amount, Series D Preferred Liquidation Amount, the Series C Preferred Liquidation Amount and the Series B Preferred Liquidation Amount, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series A Preferred Stock the full amount to which they shall be entitled under Subsection 2.4.1, the holders of shares of Series A Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
2.5 Distribution of Remaining Assets. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, after the payment of the Series E Preferred Liquidation Amount, Series D-1 Preferred Liquidation Amount, Series D Preferred Liquidation Amount, the Series C Preferred Liquidation Amount, the Series B Preferred Liquidation Amount and the Series A Preferred Liquidation Amount, the remaining assets of the Corporation available for distribution to its stockholders, or in the event of a Deemed Liquidation Event, the consideration not payable to the holders of Series E Preferred Stock, Series D-1 Preferred Stock, Series D Preferred Stock, Series C Preferred Stock, Series B Preferred Stock or Series A Preferred Stock or the remaining Available Proceeds, as the case may be, shall be distributed among the holders of the shares of Common Stock, pro rata based on the number of shares held by each such holder.
2.6 Deemed Liquidation Events.
2.6.1 Definition. Each of the following events shall be considered a “Deemed Liquidation Event” unless (i) the holders of Preferred Stock representing at least a majority of the then outstanding shares of Preferred Stock, voting together as a single class on an as-converted to Common Stock basis (the “Requisite Holders”) (ii) the holders of at least two-thirds of the then outstanding shares of Series D-1 Preferred Stock, voting exclusively and as a single class on an as-converted to Common Stock basis (the “Series D-1 Supermajority Holders”) (unless, in connection with such Deemed Liquidation Event, the holders of Series D-1 Preferred Stock would receive at least $22.3494, plus any declared and unpaid dividends, pursuant to Section 2.1) and (iii) the holders of at least a majority of the then outstanding shares of Series E Preferred Stock, voting exclusively and as a single class on an as-converted to Common Stock basis (the “Series E Majority Interest”) (unless, in connection with such Deemed Liquidation Event, the holders of Series E Preferred Stock would receive at least one times (1x) the Series E Preferred Liquidation Amount, pursuant to Section 2.1), elect otherwise by written notice sent to the Corporation at least 10 days prior to the effective date of any such event:
(a) a merger or consolidation in which
(i) the Corporation is a constituent party or
(ii) a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation,
except any such merger or consolidation involving the Corporation or a subsidiary thereof and the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; or
(b) the sale, lease, transfer or other disposition in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation (including the exclusive license of all or substantially all of the intellectual property of the Corporation) and its subsidiaries taken as a whole or the sale or disposition (whether by merger, consolidation or otherwise) of one or more subsidiaries of the Corporation if substantially all of the assets of the Corporation 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 Corporation.
2.6.2 Effecting a Deemed Liquidation Event.
(a) The Corporation shall not have the power to effect a Deemed Liquidation Event referred to in Subsection 2.6.1(a) unless the agreement or plan of merger or consolidation for such transaction (the “Merger Agreement”) provides that the consideration payable to the stockholders of the Corporation in such Deemed Liquidation Event shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2.1, 2.2, 2.3, 2.4, and 2.5.
(b) In the event of a Deemed Liquidation Event referred to in Subsection 2.6.1(a)(ii) or 2.6.1(b), if the Corporation does not effect a dissolution of the Corporation
under the General Corporation Law within ninety (90) days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice (each, a “Redemption Notice”) to each holder of Preferred Stock no later than the ninetieth (90th) day after the Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause (ii) to require the redemption of such shares of Preferred Stock, and (ii) if the Requisite Holders so request in a written instrument delivered to the Corporation not later than one hundred twenty (120) days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, as determined in good faith by the Board), together with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by Delaware law governing distributions to stockholders (the “Available Proceeds”), on the one hundred fiftieth (150th) day after such Deemed Liquidation Event, to redeem all outstanding shares of Preferred Stock at a price per share equal to the applicable Preferred Liquidation Amount. Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding shares of Preferred Stock, the Corporation shall first ratably redeem each holder’s shares of Series E Preferred Stock, Series D-1 Preferred Stock and Series D Preferred Stock to the fullest extent of such Available Proceeds, and shall then redeem each holder’s shares of Series C Preferred Stock to the fullest extent of such remaining Available Proceeds, and shall then redeem each holder’s shares of Series B Preferred Stock to the fullest extent of such remaining Available Proceeds, and shall then redeem each holder’s Series A Preferred Stock to the fullest extent of such remaining Available Proceeds. After payments have been made to the Series E Preferred Stock, Series D-1 Preferred Stock, Series D Preferred Stock, Series C Preferred Stock, Series B Preferred Stock and Series A Preferred Stock as required herein, then the Corporation shall redeem the remaining shares as soon as it may lawfully do so under Delaware law governing distributions to stockholders. Prior to the distribution or redemption provided for in this Subsection 2.6.2(b), the Corporation shall not expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in connection with such Deemed Liquidation Event or in the ordinary course of business.
(i) Each Redemption Notice shall state: (1) the number of shares of Preferred Stock held by the holder that the Corporation shall redeem; (2) the date of redemption (the “Redemption Date”) and the amount to be paid to such holder; and (3) for holders of shares in certificated form, that the holder is to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares of Preferred Stock to be redeemed.
(ii) On or before the Redemption Date, each holder of shares of Preferred Stock to be redeemed shall surrender the certificate or certificates representing such shares or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate to the Corporation, in the manner and at the place designated in the Redemption Notice, and thereupon the Available Proceeds for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof.
2.6.3 Amount Deemed Paid or Distributed. The amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities to be paid or distributed to such holders by the Corporation or the acquiring person,
firm or other entity. The value of such property, rights or securities shall be determined in good faith by the Board.
2.6.4 Allocation of Escrow and Contingent Consideration. In the event of a Deemed Liquidation Event pursuant to Subsection 2.6.1(a)(i), if any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the “Additional Consideration”), the Merger Agreement shall provide that (a) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2.1, 2.2, 2.3, 2.4, and 2.5 as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 2.1, 2.2, 2.3, 2.4, and 2.5 after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Subsection 2.6.4, consideration placed into escrow or retained as holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed to be Additional Consideration.
3. Voting.
3.1 General. On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of this Certificate of Incorporation, 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.
3.2 Election of Directors. The holders of record of the shares of Series A-1 Preferred Stock, exclusively and as a separate class, shall be entitled to elect two (2) directors of the Corporation (the “Series A-1 Directors”), the holders of record of the shares of Series A-2 Preferred Stock, exclusively and as a separate class, shall be entitled to elect two (2) directors of the Corporation (the “Series A-2 Directors”), the holders of record of the shares of Series C Preferred Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation (the “Series C Director”), the holders of record of the shares of Series D Preferred Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation (the “Series D Director”), the holders of record of the shares of Series D-1 Preferred Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation (the “Series D-1 Director”), the holders of record of the shares of Series E Preferred Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation (the “Series E Director” and, together with the Series A-1 Directors, the Series A-2 Directors, the Series C Director, the Series D Director and the Series D-1 Director, the “Preferred Directors”), and the holders of record of the shares of Common Stock, exclusively and as a separate class, shall be entitled to elect one (1) director of the Corporation. Any director elected as provided in the preceding sentence may be removed without cause by, and only by, the affirmative vote of the holders of the shares of the class or series of capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of such stockholders. If the holders of shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or Common
Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors, voting exclusively and as separate classes, pursuant to the first sentence of this Subsection 3.2, then any directorship not so filled shall remain vacant until such time as the holders of the Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or Common Stock, as the case may be, elect a person to fill such directorship by vote or written consent in lieu of a meeting; and no such directorship may be filled by stockholders of the Corporation other than by the stockholders of the Corporation that are entitled to elect a person to fill such directorship, voting exclusively and as a separate class. The holders of record of the shares of Common Stock and of any other class or series of voting stock (including the Preferred Stock), exclusively and voting together as a single class, on an as-converted to Common Stock basis, shall be entitled to elect the balance of the total number of directors of the Corporation. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Except as otherwise provided in this Subsection 3.2, a vacancy in any directorship filled by the holders of any class or series shall be filled only by vote or written consent in lieu of a meeting of the holders of such class or series or by any remaining director or directors elected by the holders of such class or series pursuant to this Subsection 3.2. Notwithstanding anything to the contrary in this Certificate of Incorporation, for administrative convenience, the Board may appoint the initial Series E Director without a separate action required by Corporation’s stockholders.
3.3 Preferred Stock Protective Provisions.
3.3.1 At any time when shares of Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, do any of the following without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Requisite Holders, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect:
(a) liquidate, dissolve or wind-up the business and affairs of the Corporation, effect any merger or consolidation or any other Deemed Liquidation Event, or consent to any of the foregoing;
(b) amend, waive, alter or repeal any provision of this Certificate of Incorporation or Bylaws of the Corporation;
(c) create, or authorize the creation of, or issue obligate itself to issue, shares of any additional class or series of capital stock unless the same ranks junior to the Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption, or increase the authorized number of shares of Preferred Stock, Common Stock or any additional class or series of capital stock;
(d) (i) reclassify, alter or amend any existing security of the Corporation that is pari passu with the Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Preferred Stock in respect of any such right, preference, or privilege or (ii) reclassify, alter or amend
any existing security of the Corporation that is junior to the Preferred Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to or pari passu with the Preferred Stock in respect of any such right, preference or privilege;
(e) sell, issue, sponsor, create or distribute, or cause or permit any of its subsidiaries to sell, issue, sponsor, create or distribute, any digital tokens, cryptocurrency or other blockchain-based assets (collectively, “Tokens”), including through a pre-sale, initial coin offering, token distribution event or crowdfunding, or through the issuance of any instrument convertible into or exchangeable for Tokens;
(f) purchase or redeem (or permit any subsidiary to purchase or redeem) or pay or declare any dividend or make any distribution on, any shares of capital stock of the Corporation other than (i) repurchases or redemptions of, or dividends or distributions on, the Preferred Stock as expressly authorized herein or as authorized pursuant to the terms of the Purchase Agreement and (ii) repurchases of stock from former employees, officers, directors, consultants or other persons who performed services for the Corporation or any subsidiary in connection with the cessation of such employment or service (in accordance with the terms of equity award agreements with such persons); provided that, with respect to any repurchase or redemption of any shares of a series of Preferred Stock that is junior to the Series C Preferred Stock, Series D Preferred Stock, Series D-1 Preferred Stock and/or Series E Preferred Stock in respect of the distribution of assets on the liquidation, dissolution, or winding up of the Corporation, the payment of dividends, or right of redemption (other than any redemption or repurchase described under clauses (i) and (ii) hereof), the written consent or affirmative vote of the Requisite Holders under this Subsection 3.3.1(f) shall also include the Series C Majority Interest, the Series D Majority Interest, the Series D-1 Majority Interest and/or the Series E Majority Interest, as applicable;
(g) alter the rights, preferences or privileges of the Preferred Stock;
(h) increase or decrease the authorized number of directors constituting the Board;
(i) create or authorize the creation of, or issue, or authorize the issuance of any debt security or create any lien or security interest (except for purchase money liens or statutory liens of landlords, mechanics, materialmen, workmen, warehousemen and other similar persons arising or incurred in the ordinary course of business) or incur other indebtedness for borrowed money, including but not limited to obligations and contingent obligations under guarantees, or permit any subsidiary to take any such action with respect to any debt security lien, security interest or other indebtedness for borrowed money, if the aggregate indebtedness of the Corporation and its subsidiaries for borrowed money following such action would exceed $50 million;
(j) create or hold capital stock in any subsidiary that is not a wholly-owned subsidiary of the Corporation (whether directly or indirectly); or
(k) enter into any agreement or transaction with an Affiliate of the Corporation unless such agreement or transaction is on arms’ length terms and approved by the Board (as used in this Agreement “Affiliate” means, with respect to any specified person, any other person who, directly or indirectly, controls, is controlled by, or is under common control with such person, including without limitation any general partner, managing member, officer or director of such person or any
venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such person).
3.3.2 At any time when shares of Series A-2 Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, (a) alter or waive the rights, preferences or privileges of the Series A-2 Preferred Stock in a manner adversely different from, or disproportionate to, the effect on the Series A-1 Preferred Stock, or (b) increase the authorized number of shares of Series A-2 Preferred Stock, in each case, without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Series A-2 Majority Interest (as defined below), given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect.
3.3.3 At any time when shares of Series A-3 Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, (a) alter or waive the rights, preferences or privileges of the Series A-3 Preferred Stock in a manner adversely different from, or disproportionate to, the effect on the Series A-1 Preferred Stock and Series A-2 Preferred Stock, or (b) increase the authorized number of shares of Series A-3 Preferred Stock, in each case, without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Series A-3 Majority Interest (as defined below), given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect.
3.3.4 At any time when shares of Series B Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, (a) alter or waive the rights, preferences or privileges of the Series B Preferred Stock in a manner adversely different from, or disproportionate to, the effect on the Series A-1 Preferred Stock, Series A-2 Preferred Stock and/or Series A-3 Preferred Stock or (b) increase the authorized number of shares of Series B Preferred Stock, in each case, without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Series B Majority Interest (as defined below), given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect.
3.3.5 At any time when shares of Series A-1 Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, (a) alter or waive the rights, preferences or privileges of the Series A-1 Preferred Stock in a manner adversely different from, or disproportionate to, the effect on the Series A-2 Preferred Stock and/or Series A-3 Preferred Stock or (b) increase the authorized number of shares of Series A-1 Preferred Stock, in each case, without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Series A-1 Majority Interest (as defined below), given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect.
3.3.6 At any time when shares of Series C Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, (a) alter or waive the rights, preferences or privileges of the Series C Preferred Stock in a manner adversely
different from, or disproportionate to, the effect on the Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock and/or Series B Preferred Stock (it being understood that the Series C Preferred Stock shall not be affected differently by the creation of a new security senior to or on parity with the Series C Preferred Stock), (b) increase or decrease the authorized number of shares of Series C Preferred Stock, or (c) enter into, or be a party to, any material agreement or transaction with an Affiliate, director, or officer of the Corporation, or any holder (or any Affiliate of a holder) of shares of Common Stock representing 5% or more of the Corporation’s then issued and outstanding shares of Common Stock, determined on an as-converted to Common Stock basis (unless, with respect to this clause (c), such agreement or transaction has been approved by the Board of Directors of the Corporation, including the affirmative approval of the disinterested directors then serving), in each case without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Series C Majority Interest, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect.
3.3.7 At any time when shares of Series D Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, (a) alter or waive the rights, preferences or privileges of the Series D Preferred Stock in a manner adversely different from, or disproportionate to, the effect on the Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock, Series B Preferred Stock and/or Series C Preferred Stock (it being understood that the Series D Preferred Stock shall not be affected differently by the creation of a new security senior to or on parity with the Series D Preferred Stock), (b) increase or decrease the authorized number of shares of Series D Preferred Stock, or (c) enter into, or be a party to, any material agreement or transaction with an Affiliate, director, or officer of the Corporation, or any holder (or any Affiliate of a holder) of shares of Common Stock representing 5% or more of the Corporation’s then issued and outstanding shares of Common Stock, determined on an as-converted to Common Stock basis (unless, with respect to this clause (c), such agreement or transaction has been approved by the Board of Directors of the Corporation, including the affirmative approval of the disinterested directors then serving), in each case without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Series D Majority Interest, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect.
3.3.8 At any time when shares of Series D-1 Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, (a) alter or waive the rights, preferences or privileges of the Series D-1 Preferred Stock in a manner adversely different from, or disproportionate to, the effect on the Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and/or Series D Preferred Stock (it being understood that the Series D-1 Preferred Stock shall not be affected differently by the creation of a new security senior to or on parity with the Series D-1 Preferred Stock), (b) create or authorize the creation of, or issue, or authorize the issuance of any debt security or create any lien or security interest (except for purchase money liens or statutory liens of landlords, mechanics, materialmen, workmen, warehousemen and other similar persons arising or incurred in the ordinary course of business) or incur other indebtedness for borrowed money, including but not limited to obligations and contingent obligations under guarantees, or permit any subsidiary to take any such action with respect to any debt security lien, security interest or other indebtedness for borrowed money, if the aggregate indebtedness of the Corporation and its subsidiaries for borrowed money following such action would exceed $50 million; provided that, for the avoidance of doubt, any indebtedness obligation shall be negotiated on an arm’s length basis, irrespective of whether the Corporation’s aggregate indebtedness
would exceed $50 million (it being understood that any such indebtedness obligation being with an existing stockholder of the Corporation shall not, in and of itself, be construed to make such negotiation not arm’s length), or (c) authorize or issue any equity securities (or securities convertible into equity securities) ranking senior to or on parity with the Series D-1 Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends and rights of redemption, including through reorganization or reclassification of junior securities (unless, with respect to this clause (c), such authorization or issuance has been approved by the holders of a majority of the then outstanding shares of Series D Preferred Stock and Series D-1 Preferred Stock, consenting or voting (as the case may be) together as a single class on an as-converted to Common Stock basis), in each case without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Series D-1 Majority Interest, given in writing or by vote at a meeting, consenting or voting (as the case may be) separately as a class, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect.
3.3.9 At any time when shares of Series E Preferred Stock are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation or otherwise, (a) alter or waive the rights, preferences or privileges of the Series E Preferred Stock in a manner adversely different from, or disproportionate to, the effect on the Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and/or Series D-1 Preferred Stock (it being understood that the Series E Preferred Stock shall not be affected differently by the creation of a new security senior to or on parity with the Series E Preferred Stock) or (b) increase or decrease the authorized number of shares of Series E Preferred Stock.
4. Optional Conversion.
The holders of the Preferred Stock shall have conversion rights as follows (the “Conversion Rights”):
4.1 Right to Convert.
4.1.1 Conversion Ratio. Each share of Series A-1 Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series A-1 Original Issue Price by the Series A-1 Conversion Price (as defined below) in effect at the time of conversion. Each share of Series A-2 Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series A-2 Original Issue Price by the Series A-2 Conversion Price (as defined below) in effect at the time of the conversion. Each share of Series A-3 Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series A-3 Original Issue Price by the Series A-3 Conversion Price (as defined below) in effect at the time of conversion. Each share of Series B Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series B Original Issue Price by the Series B Conversion Price (as defined below) in effect at the time of conversion. Each share of Series C Preferred Stock shall be
convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series C Original Issue Price by the Series C Conversion Price (as defined below) in effect at the time of conversion. Each share of Series D Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series D Original Issue Price by the Series D Conversion Price (as defined below) in effect at the time of conversion. Each share of Series D-1 Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series D-1 Original Issue Price by the Series D-1 Conversion Price (as defined below) in effect at the time of conversion. Each share of Series E Preferred Stock shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing the Series E Original Issue Price by the Series E Conversion Price (as defined below) in effect at the time of conversion. The “Series A-1 Conversion Price” shall initially be equal to $0.4444, the “Series A-2 Conversion Price” shall initially be equal to $1.2918, the “Series A-3 Conversion Price” shall initially be equal to $3.2386, the “Series B Conversion Price” shall initially be equal to $6.0476, the “Series C Conversion Price” shall initially be equal to $7.9880, the “Series D Conversion Price” shall initially be equal to $11.7439, the “Series D-1 Conversion Price” shall initially be equal to $11.1747 and the “Series E Conversion Price” shall initially be equal to $18.86343. The Series A-1 Conversion Price, Series A-2 Conversion Price, Series A-3 Conversion Price, Series B Conversion Price, Series C Conversion Price, Series D Conversion Price, Series D-1 Conversion Price, and Series E Conversion Price are, individually or collectively, as applicable, the “Conversion Price.” Such Conversion Price, and the rate at which shares of Preferred Stock may be converted or deemed to convert into shares of Common Stock, shall be subject to adjustment as provided below.
4.1.2 Termination of Conversion Rights. In the event of a liquidation, dissolution or winding up of the Corporation or a Deemed Liquidation Event, the Conversion Rights shall terminate at the close of business on the last full day preceding the date fixed for the payment of any such amounts distributable on such event to the holders of Preferred Stock.
4.2 Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of the Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the fair market value of a share of Common Stock as determined in good faith by the Board. Whether or not fractional shares would be issuable upon such conversion shall be determined on the basis of the total number of shares of Preferred Stock the holder is at the time converting into Common Stock and the aggregate number of shares of Common Stock issuable upon such conversion.
4.3 Mechanics of Conversion.
4.3.1 Notice of Conversion. In order for a holder of Preferred Stock to voluntarily convert shares of Preferred Stock into shares of Common Stock, such holder shall (a) provide written notice to the Corporation’s transfer agent at the office of the transfer agent for the Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent) that such holder elects to convert all or any number of such holder’s shares of Preferred Stock and, if applicable, any event on which such conversion is contingent and (b), if such holder’s shares are certificated,
surrender the certificate or certificates for such shares of Preferred Stock (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate), at the office of the transfer agent for the Preferred Stock (or at the principal office of the Corporation if the Corporation serves as its own transfer agent). Such notice shall state such holder’s name or the names of the nominees in which such holder wishes the shares of Common Stock to be issued. If required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or his, her or its attorney duly authorized in writing. The close of business on the date of receipt by the transfer agent (or by the Corporation if the Corporation serves as its own transfer agent) of such notice and, if applicable, certificates (or lost certificate affidavit and agreement) shall be the time of conversion (the “Conversion Time”), and the shares of Common Stock issuable upon conversion of the specified shares shall be deemed to be outstanding of record as of such date. The Corporation shall, as soon as practicable after the Conversion Time (i) issue and deliver to such holder of Preferred Stock, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions hereof and a certificate for the number (if any) of the shares of Preferred Stock represented by the surrendered certificate that were not converted into Common Stock, (ii) pay in cash such amount as provided in Subsection 4.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and (iii) pay all declared but unpaid dividends on the shares of Preferred Stock converted.
4.3.2 Reservation of Shares. The Corporation shall at all times when the Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to this Certificate of Incorporation. Before taking any action which would cause an adjustment reducing the Conversion Price below the then par value of the shares of Common Stock issuable upon conversion of the Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue fully paid and non-assessable shares of Common Stock at such adjusted Conversion Price.
4.3.3 Effect of Conversion. All shares of Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor, to receive payment in lieu of any fraction of a share otherwise issuable upon such conversion as provided in Subsection 4.2 and to receive payment of any dividends declared but unpaid thereon. Any shares of Preferred Stock so converted shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Preferred Stock accordingly.
4.3.4 No Further Adjustment. Upon any such conversion, no adjustment to a Conversion Price shall be made for any declared but unpaid dividends on the Preferred Stock surrendered for conversion or on the Common Stock delivered upon conversion.
4.3.5 Taxes. The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Preferred Stock pursuant to this Section 4. The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.
4.4 Adjustments to Conversion Price for Diluting Issues.
4.4.1 Special Definitions. For purposes of this Article Fourth, the following definitions shall apply:
(a) “Option” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.
(b) “Series E Original Issue Date” shall mean the date on which the first share of Series E Preferred Stock was issued.
(c) “Convertible Securities” shall mean any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding Options.
(d) “Additional Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Subsection 4.4.3 below, deemed to be issued) by the Corporation after the Series E Original Issue Date, other than (1) the following shares of Common Stock and (2) shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (clauses (1) and (2), collectively, “Exempted Securities”):
(i) shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on Preferred Stock;
(ii) shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Subsection 4.5, 4.6, 4.7 or 4.8;
(iii) shares of Common Stock or Options issued to employees or directors of, or consultants or advisors to, the Corporation or any of its subsidiaries pursuant to the Corporation’s 2015 Stock Incentive Plan (as amended) or such other plan, agreement or arrangement in existence as of, or approved by the Board on or following, the Series E Original Issue Date;
(iv) shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security;
(v) shares of Common Stock, Options or Convertible Securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction in existence as of, or approved by the Board on or following, the Series E Original Issue Date;
(vi) the Warrants (as such term is defined in that certain Series D-1 Preferred Stock Purchase Agreement, dated July 7, 2023, by and among the Corporation and the other parties thereto);
(vii) shares of Common Stock, Options or Convertible Securities issued as acquisition consideration pursuant to the acquisition of another corporation or business by the Corporation by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, in each case approved by the Board on or following the Series E Original Issue Date; or
(viii) shares of Common Stock issued in connection with a firm underwritten public offering of the Corporation’s Common Stock pursuant to an effective registration statement.
4.4.2 No Adjustment of Conversion Price.
(a) No adjustment in the Series E Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from the Series E Majority Interest agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
(b) No adjustment in the Series D-1 Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from holders of a majority of the then outstanding shares of Series D-1 Preferred Stock (the “Series D-1 Majority Interest”) agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
(c) No adjustment in the Series D Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from holders of a majority of the then outstanding shares of Series D Preferred Stock (the “Series D Majority Interest”) agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
(d) No adjustment in the Series C Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from holders of a majority of the then outstanding shares of Series C Preferred Stock (the “Series C Majority Interest”) agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
(e) No adjustment in the Series B Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from holders of a majority of the then outstanding shares of Series B Preferred Stock (the “Series B Majority Interest”) agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
(f) No adjustment in the Series A-3 Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from holders of a majority of the of the then outstanding shares of Series A-3 Preferred Stock (the “Series A-3 Majority Interest”) agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
(g) No adjustment in the Series A-2 Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from a Series A-2 Majority Interest agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock. For purposes hereof, a “Series A-2 Majority Interest” shall mean the vote or written consent of (i) each of Razor’s Edge Fund II, LP (“Razor’s Edge”), so long as Razor’s Edge or any of its Affiliates holds any shares of capital stock of the Corporation, and A/NPP Portfolio Holdings LLC (“Advance”), so long as Advance or any of its Affiliates holds any shares of capital stock of the Corporation, (ii) Advance and the holders of all of the then outstanding shares of Series A-1 Preferred Stock and Series A-2 Preferred Stock not held by Razor’s Edge (or any of its Affiliates or transferees) or (iii) Razor’s Edge and the holders of all of the then outstanding shares of Series A-1 Preferred Stock and Series A-2 Preferred Stock not held by Advance (or any of its Affiliates or transferees).
(h) No adjustment in the Series A-1 Conversion Price shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from holders of a majority of the of the then outstanding shares of Series A-1 Preferred Stock (the “Series A-1 Majority Interest”) agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.
4.4.3 Deemed Issue of Additional Shares of Common Stock.
(a) If the Corporation at any time or from time to time after the Series E Original Issue Date shall issue any Options or Convertible Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.
(b) If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Conversion Price applicable to a series of Preferred Stock pursuant to the terms of Subsection 4.4.4, are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease becoming effective, such Conversion Price computed upon the original issue of such Option or Convertible Security
(or upon the occurrence of a record date with respect thereto) shall be readjusted to such Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (b) shall have the effect of increasing the applicable Conversion Price to an amount which exceeds the lower of (i) such Conversion Price in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security, or (ii) such Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock (other than deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option or Convertible Security) between the original adjustment date and such readjustment date.
(c) If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities), the issuance of which did not result in an adjustment to a Conversion Price pursuant to the terms of Subsection 4.4.4 (either because the consideration per share (determined pursuant to Subsection 4.4.5) of the Additional Shares of Common Stock subject thereto was equal to or greater than such Conversion Price then in effect, or because such Option or Convertible Security was issued before the Series E Original Issue Date), are revised after the Series E Original Issue Date as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any decrease in the consideration payable to the Corporation upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional Shares of Common Stock subject thereto (determined in the manner provided in Subsection 4.4.3(a)) shall be deemed to have been issued effective upon such increase or decrease becoming effective.
(d) Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Conversion Price applicable to a series of Preferred Stock pursuant to the terms of Subsection 4.4.4, such Conversion Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued.
(e) If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment to the Conversion Price applicable to a series of Preferred Stock provided for in this Subsection 4.4.3 shall be effected at the time of such issuance or amendment based on such number of shares or amount of consideration without regard to any provisions for subsequent adjustments (and any subsequent adjustments shall be treated as provided in clauses (b) and (c) of this Subsection 4.4.3). If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Conversion Price applicable to a series of Preferred Stock that would result under the terms of this Subsection 4.4.3 at the time of such issuance or amendment shall instead be effected at the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming for purposes of calculating such adjustment to such
Conversion Price that such issuance or amendment took place at the time such calculation can first be made.
4.4.4 Adjustment of Conversion Price Upon Issuance of Additional Shares of Common Stock. In the event the Corporation shall at any time after the Series E Original Issue Date issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Subsection 4.4.3), without consideration or for a consideration per share less than the applicable Conversion Price of a series of Preferred Stock in effect immediately prior to such issuance or deemed issuance, then such Conversion Price shall be reduced, concurrently with such issuance or deemed issuance, to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:
CP2 =CP1* (A + B) ÷ (A + C).
For purposes of the foregoing formula, the following definitions shall apply:
(a) “CP2” shall mean the applicable Conversion Price of such series of Preferred Stock in effect immediately after such issuance or deemed issuance of Additional Shares of Common Stock;
(b) “CP1” shall mean the applicable Conversion Price of such series of Preferred Stock in effect immediately prior to such issuance or deemed issuance of Additional Shares of Common Stock;
(c) “A” shall mean the number of shares of Common Stock outstanding immediately prior to such issuance or deemed issuance of Additional Shares of Common Stock (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of Options outstanding immediately prior to such issuance or deemed issuance or upon conversion or exchange of Convertible Securities (including the Preferred Stock) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issuance or deemed issuance);
(d) “B” shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of Common Stock had been issued or deemed issued at a price per share equal to CP1 (determined by dividing the aggregate consideration received by the Corporation in respect of such issue by CP1); and
(e) “C” shall mean the number of such Additional Shares of Common Stock issued in such transaction.
4.4.5 Determination of Consideration. For purposes of this Subsection 4.4, the consideration received by the Corporation for the issuance or deemed issuance of any Additional Shares of Common Stock shall be computed as follows:
(a) Cash and Property: Such consideration shall:
(i) insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest;
(ii) insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board; and
(iii) in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (i) and (ii) above, as determined in good faith by the Board.
(b) Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Subsection 4.4.3, relating to Options and Convertible Securities, shall be determined by dividing:
(i) The total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by
(ii) the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities.
4.4.6 Multiple Closing Dates. In the event the Corporation shall issue on more than one date Additional Shares of Common Stock that are a part of one transaction or a series of related transactions and that would result in an adjustment to the Conversion Price applicable to a series of Preferred Stock pursuant to the terms of Subsection 4.4.4, then, upon the final such issuance, such Conversion Price shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).
4.5 Adjustment for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the Series E Original Issue Date effect a subdivision of the outstanding Common Stock, the Conversion Price applicable to each series of Preferred Stock in effect immediately before that subdivision shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Corporation shall at any time or from time to time after the Series E Original Issue Date combine the outstanding shares of Common Stock, the Conversion Price applicable to each series of Preferred Stock in effect immediately before the combination with respect to each series of Preferred Stock shall be proportionately increased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection shall become effective at the close of business on the date the subdivision or combination becomes effective.
4.6 Adjustment for Certain Dividends and Distributions. In the event the Corporation at any time or from time to time after the Series E Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event the Conversion Price in effect immediately before such event with respect to each series of Preferred Stock shall be decreased as of the time of such issuance or, in the event such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Conversion Price applicable to such series of Preferred Stock then in effect by a fraction:
(1) the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution.
Notwithstanding the foregoing (a) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price applicable to each series of Preferred Stock shall be recomputed accordingly as of the close of business on such record date and thereafter the Conversion Price applicable to each series of Preferred Stock shall be adjusted pursuant to this subsection as of the time of actual payment of such dividends or distributions; and (b) that no such adjustment shall be made if the holders of such series of Preferred Stock simultaneously receive a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would have received if all outstanding shares of such series of Preferred Stock had been converted into Common Stock on the date of such event.
4.7 Adjustments for Other Dividends and Distributions. In the event the Corporation at any time or from time to time after the Series E Original Issue Date shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Corporation (other than a distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of Section 1 do not apply to such dividend or distribution, then and in each such event the holders of Preferred Stock shall receive, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities or other property in an amount equal to the amount of such securities or other property as they would have received if all outstanding shares of Preferred Stock had been converted into Common Stock on the date of such event.
4.8 Adjustment for Merger or Reorganization, etc. Subject to the provisions of Subsection 2.6, if there shall occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common Stock (but not the Preferred Stock) is converted into or exchanged for securities, cash or other property (other than a transaction covered by Subsections 4.4, 4.6 or 4.7), then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each share of Preferred Stock shall thereafter be convertible in lieu of the Common Stock into which it was convertible prior to such event into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock of the Corporation issuable upon conversion of one share of Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series D-1 Preferred Stock or Series
E Preferred Stock, as applicable, immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board) shall be made in the application of the provisions in this Section 4 with respect to the rights and interests thereafter of the holders of the Preferred Stock, to the end that the provisions set forth in this Section 4 (including provisions with respect to changes in and other adjustments of the Conversion Price applicable to each series of Preferred Stock) shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the conversion of the Preferred Stock. For the avoidance of doubt, nothing in this Subsection 4.8 shall be construed as preventing the holders of Preferred Stock from seeking any appraisal rights to which they are otherwise entitled under the General Corporation Law in connection with a merger triggering an adjustment hereunder, nor shall this Subsection 4.8 be deemed conclusive evidence of the fair value of the shares of Preferred Stock in any such appraisal proceeding.
4.8 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Conversion Price applicable to a series of Preferred Stock pursuant to this Section 4, the Corporation at its expense shall, as promptly as reasonably practicable but in any event not later than ten (10) days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of such series of Preferred Stock a certificate setting forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which such series of Preferred Stock is convertible) and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, as promptly as reasonably practicable after the written request at any time of any holder of Preferred Stock (but in any event not later than ten (10) days thereafter), furnish or cause to be furnished to such holder a certificate setting forth (i) the Conversion Price then in effect for each series of Preferred Stock owned and held by such holder, and (ii) the number of shares of Common Stock and the amount, if any, of other securities, cash or property which then would be received upon the conversion of each series of Preferred Stock owned and held by such holder.
4.9 Notice of Record Date. In the event:
(a) the Corporation shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon conversion of the Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive any other security; or
(b) of any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Deemed Liquidation Event; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation, then, and in each such case, the Corporation will send or cause to be sent to the holders of the Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon the conversion of the Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up,
and the amount per share and character of such exchange applicable to the Preferred Stock and the Common Stock. Such notice shall be sent at least ten (10) days prior to the record date or effective date for the event specified in such notice.
5. Mandatory Conversion.
5.1 Trigger Events. (a) Immediately prior to (i) the closing of the sale of shares of Common Stock to the public in a firm-commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended (an “IPO”), (x) resulting in at least $150,000,000 of gross proceeds to the Corporation and (y) in connection with which the Common Stock is listed for trading on the Nasdaq Stock Market, the New York Stock Exchange, or another nationally recognized exchange or marketplace approved by the Board, (ii) commencement of trading on the Nasdaq Stock Market, the New York, Stock Exchange, or another nationally recognized exchange or marketplace approved by the Board, following the effectiveness of the applicable registration statement in connection with the initial listing of the Common Stock for trading on such securities exchange by means of an effective registration statement filed by the Corporation with the Securities and Exchange Commission, without a related underwritten offering of such Common Stock, for which the Board determines that the aggregate value of shares to be registered in such initial listing is expected to be at least $150,000,000 at any time on the first day of trading (a “Direct Listing”), or (iii) the consummation of any transaction or series of related transactions pursuant to which the Corporation is merged into, or otherwise combines with, a special purpose acquisition company (a “SPAC”) listed on the Nasdaq Stock Market, the New York Stock Exchange, or another nationally recognized exchange or marketplace approved by the Board, or a subsidiary thereof, and the shares of capital stock of the Corporation outstanding immediately prior to such transaction or series of related transactions are converted into or exchanged for shares of capital stock listed on such exchange or marketplace that represent, immediately following such transaction or series of related transactions, a majority of the outstanding voting power of the surviving or resulting corporation, provided that the Board determines that the surviving or resulting corporation is expected to receive an aggregate of at least $150,000,000 from the release of cash funds from the trust account established at the initial public offering of the SPAC and/or the sale of equity securities of the Corporation, the SPAC or the surviving or resulting corporation immediately prior to or concurrently with the consummation of such transaction or series of related transactions (a “SPAC Transaction”, and any such sale or closing specified in the preceding clauses (i) and (iii), a “Specified Public Offering”, and any such event specified in the preceding clauses (i), (ii) and (iii), a “QPO”) or (b) upon the date and time, or the occurrence of an event, specified by vote or written consent of the Requisite Holders including, solely with respect to the Series E Preferred Stock, the vote of the Series E Majority Interest which shall include the vote or written consent of the New Money Series E Lead Investor (as defined in the Purchase Agreement) for so long as such holder qualifies as a New Money Series E Lead Investor thereunder (the time of such closing or the date and time specified or the time of the event specified in such vote or written consent is referred to herein as the “Mandatory Conversion Time”), then (A) all outstanding shares of Preferred Stock shall automatically be converted into shares of Common Stock, at the then effective conversion rate as calculated pursuant to Subsection 4.1.1 and (B) such shares may not be reissued by the Corporation; provided, however, that, in the event of any conversion pursuant to this Subsection 5.1 (whether pursuant to subsection (a) or (b)) in which the value of the shares held or to be held by a holder of Series D-1 Preferred Stock (“Series D-1 Post-Conversion Shares”) in respect of each share of Series D-1 Preferred Stock held immediately prior to any such conversion is not expected to be at least $22.3494 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Series D-1 Preferred Stock) at the time of consummation of the Specified Public Offering, Direct Listing or other conversion event (the “Series D-1 Conversion Threshold Price”) (in the case of a Direct Listing, SPAC Transaction or such other
conversion event, as determined by the Board, including a majority of the Preferred Directors, in good faith, and in the case of an IPO, based on the initial public offering price to the public reflected on the cover page of the final prospectus relating to the IPO), then the Corporation shall issue or deliver, or cause to be issued or delivered, to each such holder of Series D-1 Preferred Stock upon such conversion or consummation of such Specified Public Offering, Direct Listing or other conversion event such additional number of Series D-1 Post-Conversion Shares as would result in the aggregate number of Series D-1 Post-Conversion Shares to be held in respect of each share of Series D-1 Preferred Stock having a value equal to the Series D-1 Conversion Threshold Price (in the case of a Direct Listing, SPAC Transaction or such other conversion event, as determined by the Board, including a majority of the Preferred Directors, in good faith, and in the case of an IPO, based on the initial public offering price to the public reflected on the cover page of the final prospectus relating to the IPO), unless the Corporation receives written notice from the Series D-1 Supermajority Holders agreeing that the right to receive such additional Series D-1 Post-Conversion Shares is waived on behalf of the holders of Series D-1 Preferred Stock.
5.2 Procedural Requirements. All holders of record of shares of Preferred Stock shall be sent written notice of the Mandatory Conversion Time and the place designated for mandatory conversion of all such shares of Preferred Stock pursuant to this Section 5. Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time. Upon receipt of such notice, each holder of shares of Preferred Stock in certificated form shall surrender his, her or its certificate or certificates for all such shares (or, if such holder alleges that any such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice. If so required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to any Preferred Stock converted pursuant to Subsection 5.1, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or prior to such time), except only the rights of the holders thereof, upon surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Subsection 5.2. As soon as practicable after the Mandatory Conversion Time and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Preferred Stock, the Corporation shall (a) issue and deliver to such holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof and (b) pay cash as provided in Subsection 4.2 in lieu of any fraction of a share of Common Stock otherwise issuable upon such conversion and the payment of any declared but unpaid dividends on the shares of Preferred Stock converted. Such converted Preferred Stock shall be retired and cancelled and may not be reissued as shares of such series, and the Corporation may thereafter take such appropriate action (without the need for stockholder action) as may be necessary to reduce the authorized number of shares of Preferred Stock accordingly.
6. Redemption. The shares of Preferred Stock shall not be redeemable at the option of any holder thereof, except as may be otherwise provided herein.
7. Redeemed or Otherwise Acquired Shares. Any shares of Preferred Stock that are redeemed or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred. Neither the Corporation
nor any of its subsidiaries may exercise any voting or other rights granted to the holders of Preferred Stock following redemption.
8. Waiver. Except as otherwise set forth herein, any of the specific rights, powers, preferences and other terms of a given series of Preferred Stock set forth herein may be waived or amended on behalf of all holders of such series of Preferred Stock by the affirmative written consent or vote of the holders of a majority of the shares of such series of Preferred Stock then outstanding; provided, however, that for the avoidance of doubt, the affirmative consent or vote of the Series D-1 Supermajority Holders shall be required for any waiver or amendment of rights, powers, preferences and other terms of the Series D-1 Preferred Stock that specifically requires affirmative consent or vote of the Series D-1 Supermajority Holders hereunder, including as set forth in Subsection 2.6.1 and Subsection 5.1; provided further, however, that for the avoidance of doubt, the affirmative consent or vote of the Series E Majority Interest shall be required for any waiver or amendment of rights, powers, preferences and other terms of the Series E Preferred Stock that specifically requires affirmative consent or vote of Series E Majority Interest hereunder, including as set forth in Subsection 2.1, Subsection 2.6.1 and Subsection 5.1.
9. Notices. Any notice required or permitted by the provisions of this Article Fourth to be given to a holder of shares of Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the Corporation, or given by electronic communication in compliance with the provisions of the General Corporation Law, and shall be deemed sent upon such mailing or electronic transmission.
FIFTH: Subject to any additional vote required by this Certificate of Incorporation or Bylaws, in furtherance and not in limitation of the powers conferred by statute, the Board is expressly authorized to make, repeal, alter, amend and rescind any or all of the Bylaws of the Corporation.
SIXTH: Subject to any additional vote required by this Certificate of Incorporation, the number of directors of the Corporation shall be determined in the manner set forth in the Bylaws of the Corporation.
SEVENTH: Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.
EIGHTH: 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.
NINTH: To the fullest extent permitted by law, no director or officer of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer. If the General Corporation Law or any other law of the State of Delaware is amended after approval by the stockholders of this Article Ninth to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law as so amended.
Any repeal or modification of the foregoing provisions of this Article Ninth by the stockholders of the Corporation shall not adversely affect any right or protection of a director or officer of the Corporation existing at the time of, or increase the liability of any director or officer of the Corporation
with respect to any acts or omissions of such director or officer occurring prior to, such repeal or modification.
TENTH: To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which General Corporation Law permits the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the General Corporation Law.
Any amendment, repeal or modification of the foregoing provisions of this Article Tenth shall not (a) adversely affect any right or protection of any director, officer or other agent of the Corporation existing at the time of such amendment, repeal or modification or (b) increase the liability of any director or officer of the Corporation with respect to any acts or omissions of such director, officer or agent occurring prior to, such amendment, repeal or modification.
ELEVENTH: The Corporation renounces, to the fullest extent permitted by law, any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any Excluded Opportunity. An “Excluded Opportunity” is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into the possession of (i) any director of the Corporation who is not an employee of the Corporation or any of its subsidiaries, or (ii) any holder of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series D-1 Preferred Stock, Series E Preferred Stock or any partner, member, director, stockholder, employee, affiliate or agent of any such holder, other than someone who is an employee of the Corporation or any of its subsidiaries (collectively, the persons in clauses (i) and (ii) “Covered Persons”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a director of the Corporation while such Covered Person is performing services in such capacity. Any repeal or modification of this Article Eleventh will only be prospective and will not affect the rights under this Article Eleventh in effect at the time of the occurrence of any actions or omissions to act giving rise to liability.
TWELFTH: Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery in the State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the Delaware General Corporation Law or the Corporation’s certificate of incorporation or bylaws or (iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine, except for, as to each of (i) through (iv) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. If any provision or provisions of this Article Twelfth shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining
provisions of this Article Twelfth (including, without limitation, each portion of any sentence of this Article Twelfth containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.
* * *
3. That the foregoing amendment and restatement was approved by the holders of the requisite number of shares of this corporation in accordance with Section 228 of the General Corporation Law.
4. That this Seventh Amended and Restated Certificate of Incorporation, which restates and integrates and further amends the provisions of this Corporation’s Certificate of Incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law.
IN WITNESS WHEREOF, this Seventh Amended and Restated Certificate of Incorporation has been executed by a duly authorized officer of this corporation on this 18th day of December, 2025.
| | | | | | | | | | | |
| By: /s/ John Serafini | |
| John Serafini, Chief Executive Officer |
BY-LAWS
OF
HAWKEYE 360, INC.
(THE “CORPORATION”)
1. Stockholders
(a) Annual Meeting. The annual meeting of stockholders shall be held for the election of directors each year at such place, date and time as shall be designated by the Board of Directors. Any other proper business may be transacted at the annual meeting. If no date for the annual meeting is established or said meeting is not held on the date established as provided above, a special meeting in lieu thereof may be held or there may be action by written consent of the stockholders on matters to be voted on at the annual meeting, and such special meeting or written consent shall have for the purposes of these By-laws or otherwise all the force and effect of an annual meeting.
(b) Special Meetings. Special meetings of stockholders may be called by the Chief Executive Officer, if one is elected, or, if there is no Chief Executive Officer, a President, or by the Board of Directors, but such special meetings may not be called by any other person or persons. The call for the meeting shall state the place, date, hour and purposes of the meeting. Only the purposes specified in the notice of special meeting shall be considered or dealt with at such special meeting.
(c) Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present and vote at such meeting, and, in the case of a special meeting, the purpose or purposes of the meeting, shall be given by the Secretary (or other person authorized by these By-laws, the Board of Directors or by law) not less than fifteen (15) nor more than sixty (60) days before the meeting to each stockholder entitled to vote thereat and to each stockholder who, under the Certificate of Incorporation or under these By-laws is entitled to such notice. If mailed, notice is given when deposited in the mail, postage prepaid, directed to such stockholder at such stockholder’s address as it appears in the records of the Corporation. Without limiting the manner by which notice otherwise may be effectively given to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law (the “DGCL”).
If a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place, if any, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken, except that if the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
(d) Quorum. The holders of a majority in interest of all stock issued, outstanding and entitled to vote at a meeting, present in person or represented by proxy, shall constitute a quorum. Any meeting may be adjourned from time to time by a majority of the votes properly cast upon the question, whether or not a quorum is present. The stockholders present at a duly constituted meeting may continue
to transact business until adjournment notwithstanding the withdrawal of enough stockholders to reduce the voting shares below a quorum.
(e) Voting and Proxies. Except as otherwise provided by the Certificate of Incorporation or by law, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. 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 for such stockholder by either written proxy or by a transmission permitted by Section 212(c) of the DGCL, but no proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period or is irrevocable and coupled with an interest. Proxies shall be filed with the Secretary of the meeting, or of any adjournment thereof. Except as otherwise limited therein, proxies shall entitle the persons authorized thereby to vote at any adjournment of such meeting.
(f) Action at Meeting. When a quorum is present, any matter before the meeting shall be decided by vote of the holders of a majority of the shares of stock voting on such matter except where a larger vote is required by law, by the Certificate of Incorporation or by these By-laws. Any election of directors by stockholders shall be determined by a plurality of the votes cast, except where a larger vote is required by law, by the Certificate of Incorporation or by these By-laws. The Corporation shall not directly or indirectly vote any share of its own stock; provided, however, that the Corporation may vote shares which it holds in a fiduciary capacity to the extent permitted by law.
(g) Presiding Officer. Meetings of stockholders shall be presided over by the Chairman of the Board, if one is elected, or in his or her absence, the Vice Chairman of the Board, if one is elected, or if neither is elected or in their absence, a President. The Board of Directors shall have the authority to appoint a temporary presiding officer to serve at any meeting of the stockholders if the Chairman of the Board, the Vice Chairman of the Board or a President is unable to do so for any reason.
(h) Conduct of Meetings. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the presiding officer of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, 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 presiding officer of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) 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 chairman of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the presiding officer of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
(i) Action without a Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted by law to be taken at any annual or special meeting of 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, by hand or by certified mail, return receipt requested, or to the Corporation's principal place of business or to the officer of the Corporation having custody of the minute book (in both cases by electronic means acceptable to the Corporation). Every written consent shall bear the date of signature and no written consent shall be effective unless, within sixty (60) days of the earliest dated consent delivered pursuant to these By-laws, written consents signed by a sufficient number of stockholders entitled to take action are delivered to the Corporation in the manner set forth in these By-laws. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
(j) Stockholder Lists. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Nothing contained in this Section 1(j) shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten (10) days prior to the meeting in the manner provided by law. The list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law.
2. Directors
(a) Powers. The business of the Corporation shall be managed by or under the direction of a Board of Directors who may exercise all the powers of the Corporation except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may exercise the powers of the full Board until the vacancy is filled.
(b) Number and Qualification. Unless otherwise provided in the Certificate of Incorporation or in these By-laws, the number of directors which shall constitute the whole board shall be determined from time to time by resolution of the incorporator or the Board of Directors. Directors need not be stockholders.
(c) Vacancies; Reduction of Board. A majority of the directors then in office, although less than a quorum, or a sole remaining Director, may fill vacancies in the Board of Directors occurring for any reason and newly created directorships resulting from any increase in the authorized number of directors. In lieu of filling any vacancy, the Board of Directors may reduce the number of directors.
(d) Tenure. Except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws, directors shall hold office until their successors are elected and qualified or until their earlier resignation or removal. Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
(e) Removal. To the extent permitted by law, a director may be removed from office with or without cause by vote of the holders of a majority of the shares of stock entitled to vote in the election of directors.
(f) Meetings. Regular meetings of the Board of Directors may be held without notice at such time, date and place as the Board of Directors may from time to time determine. Special meetings of the Board of Directors may be called, orally or in writing, by the Chief Executive Officer, if one is elected, or, if there is no Chief Executive Officer, a President, or by two or more Directors, designating the time, date and place thereof. Directors may participate in meetings of the Board of Directors by means of conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each other, and participation in a meeting in accordance herewith shall constitute presence in person at such meeting.
(g) Notice of Meetings. Notice of the time, date and place of all special meetings of the Board of Directors shall be given to each director by the Secretary, or Assistant Secretary, or in case of the death, absence, incapacity or refusal of such persons, by the officer or one of the directors calling the meeting. Notice shall be given to each director in person, by telephone, or by facsimile, electronic mail or other form of electronic communications, sent to such director’s business or home address at least twenty-four (24) hours in advance of the meeting, or by written notice mailed to such director’s business or home address at least forty-eight (48) hours in advance of the meeting.
(h) Quorum. At any meeting of the Board of Directors, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business. Less than a quorum may adjourn any meeting from time to time and the meeting may be held as adjourned without further notice.
(i) Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, unless otherwise provided in the following sentence, a majority of the directors present may take any action on behalf of the Board of Directors, unless a larger number is required by law, by the Certificate of Incorporation or by these By-laws. So long as there are two (2) or fewer Directors, any action to be taken by the Board of Directors shall require the approval of all Directors.
(j) Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the records of the meetings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
(k) Committees. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, establish one or more committees, each committee to consist of one or more directors. 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. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, 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; but no such committee shall have the power or authority in reference to the following: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval or (ii) adopting, amending or repealing any provision of these By-laws.
Except as the Board of Directors may otherwise determine, any such committee may make rules for the conduct of its business, but in the absence of such rules its business shall be conducted so far as possible in the same manner as is provided in these By-laws for the Board of Directors. All members of such committees shall hold their committee offices at the pleasure of the Board of Directors, and the Board may abolish any committee at any time.
3. Officers
(a) Enumeration. The officers of the Corporation shall consist of one or more Presidents (who, if there is more than one, shall be referred to as Co-Presidents), a Treasurer, a Secretary, and such other officers, including, without limitation, a Chief Executive Officer and one or more Vice Presidents (including Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as the Board of Directors may determine. The Board of Directors may elect from among its members a Chairman of the Board and a Vice Chairman of the Board.
(b) Election. The Presidents, Treasurer and Secretary shall be elected annually by the Board of Directors at their first meeting following the annual meeting of stockholders. Other officers may be chosen by the Board of Directors at such meeting or at any other meeting.
(c) Qualification. No officer need be a stockholder or Director. Any two or more offices may be held by the same person. Any officer may be required by the Board of Directors to give bond for the faithful performance of such officer’s duties in such amount and with such sureties as the Board of Directors may determine.
(d) Tenure. Except as otherwise provided by the Certificate of Incorporation or by these By-laws, each of the officers of the Corporation shall hold office until the first meeting of the Board of Directors following the next annual meeting of stockholders and until such officer’s successor is elected and qualified or until such officer’s earlier resignation or removal. Any officer may resign by delivering his or her written resignation to the Corporation, and such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event.
(e) Removal. The Board of Directors may remove any officer with or without cause by a vote of a majority of the directors then in office.
(f) Vacancies. Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.
(g) Chairman of the Board and Vice Chairman. Unless otherwise provided by the Board of Directors, the Chairman of the Board of Directors, if one is elected, shall preside, when present, at all meetings of the stockholders and the Board of Directors. The Chairman of the Board shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.
Unless otherwise provided by the Board of Directors, in the absence of the Chairman of the Board, the Vice Chairman of the Board, if one is elected, shall preside, when present, at all meetings of the stockholders and the Board of Directors. The Vice Chairman of the Board shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.
(h) Chief Executive Officer. The Chief Executive Officer, if one is elected, shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.
(i) Presidents. The Presidents shall, subject to the direction of the Board of Directors, each have general supervision and control of the Corporation’s business and any action that would typically be taken by a President may be taken by any Co-President. If there is no Chairman of the Board or Vice Chairman of the Board, a President shall preside, when present, at all meetings of stockholders and the Board of Directors. The Presidents shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.
(j) Vice Presidents and Assistant Vice Presidents. Any Vice President (including any Executive Vice President or Senior Vice President) and any Assistant Vice President shall have such powers and shall perform such duties as the Board of Directors may from time to time designate.
(k) Treasurer and Assistant Treasurers. The Treasurer shall, subject to the direction of the Board of Directors, have general charge of the financial affairs of the Corporation and shall cause to be kept accurate books of account. The Treasurer shall have custody of all funds, securities, and valuable documents of the Corporation, except as the Board of Directors may otherwise provide. The Treasurer shall have such other powers and shall perform such duties as the Board of Directors may from time to time designate.
Any Assistant Treasurer shall have such powers and perform such duties as the Board of Directors may from time to time desiate.gn
(l) Secretary and Assistant Secretaries. The Secretary shall record the proceedings of all meetings of the stockholders and the Board of Directors (including committees of the Board) in books kept for that purpose. In the absence of the Secretary from any such meeting an Assistant Secretary, or if such person is absent, a temporary secretary chosen at the meeting, shall record the proceedings thereof. The Secretary shall have charge of the stock ledger (which may, however, be kept by any transfer or other agent of the Corporation) and shall have such other duties and powers as may be designated from time to time by the Board of Directors.
Any Assistant Secretary shall have such powers and perform such duties as the Board of Directors may from time to time designate.
(m) Other Powers and Duties. Subject to these By-laws, each officer of the Corporation shall have in addition to the duties and powers specifically set forth in these By-laws, such duties and powers as are customarily incident to such officer’s office, and such duties and powers as may be designated from time to time by the Board of Directors.
4. Capital Stock
(a) Certificates of Stock.
(i) The shares of the Corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be in such form as may from time to time be prescribed by the Board of Directors and shall be signed by a President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary. Such signatures may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed on such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the time of its issue. Every certificate for shares of stock which are subject to any restriction on transfer and every certificate issued when the Corporation is authorized to issue more than one class or series of stock shall contain such legend with respect thereto as is required by law. The Corporation shall be permitted to issue fractional shares.
(ii) Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the DGCL or a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
(b) Transfers. Subject to any restrictions on transfer, shares of stock may be transferred on the books of the Corporation as follows: (i) with respect to certificated shares, by the surrender to the Corporation or its transfer agent of the certificate therefor properly endorsed or accompanied by a written assignment or power of attorney properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation or its transfer agent may reasonably require; and (ii) with respect to uncertificated shares, by the receipt by the Corporation of proper transfer instructions from the registered owner of uncertificated shares.
(c) Record Holders. Except as may otherwise be required by law, by the Certificate of Incorporation or by these By-laws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such stock, until the shares have been transferred on the books of the Corporation in accordance with the requirements of these By-laws.
It shall be the duty of each stockholder to notify the Corporation of such stockholder’s post office address.
(d) Record Date. 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 consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not precede the date on which it is established, and which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, more than ten (10) days after the date on which the record date for stockholder consent without a meeting is established, nor more than sixty (60) days prior to any other action. In such case only stockholders of record on such record date shall be so entitled notwithstanding any transfer of stock on the books of the Corporation after the record date.
If no record date is fixed, (i) 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, (ii) the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, 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 by delivery to its registered office in this state, to its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded, and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
(e) Lost Certificates. The Corporation may issue a new certificate of stock, or uncertificated shares, in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
5. Indemnification
(a) Definitions. For purposes of this Section 5:
(i) “Corporate Status” describes the status of a person who is serving or has served (A) as a Director of the Corporation, (B) as an Officer of the Corporation, (C) as a Non-Officer Employee of the Corporation, or (D) as a director, partner, trustee, officer, employee or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, foundation, association, organization or other legal entity which such person is or was serving at the request of the Corporation. For purposes of this Section 5(a)(i), a Director, Officer or Non-Officer Employee of the Corporation who is serving or has served as a director, partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to be serving at the request of the Corporation. Notwithstanding the foregoing, “Corporate Status” shall not include the status of a person who is serving or has served as a director, officer, employee or agent of a constituent corporation absorbed in a merger or consolidation transaction with the Corporation with respect to such person’s activities prior to said transaction, unless specifically authorized by the Board of Directors or the stockholders of the Corporation;
(ii) “Director” means any person who serves or has served the Corporation as a director on the Board of Directors of the Corporation;
(iii) “Disinterested Director” means, with respect to each Proceeding in respect of which indemnification is sought hereunder, a Director of the Corporation who is not and was not a party to such Proceeding;
(iv) “Expenses” means all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of expert witnesses, private investigators and professional advisors (including, without limitation, accountants and investment bankers), travel expenses, duplicating costs, printing and binding costs, costs of preparation of demonstrative evidence and other courtroom presentation aids and devices, costs incurred in connection with document review, organization, imaging and computerization, telephone charges, postage, delivery service fees, and all other disbursements, costs or expenses of the type customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or otherwise participating in, a Proceeding;
(v) “Liabilities” means judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement;
(vi) “Non-Officer Employee” means any person who serves or has served as an employee or agent of the Corporation, but who is not or was not a Director or Officer;
(vii) “Officer” means any person who serves or has served the Corporation as an officer of the Corporation appointed by the Board of Directors of the Corporation;
(viii) “Proceeding” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, inquiry, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative, arbitrative or investigative; and
(ix) “Subsidiary” shall mean any corporation, partnership, limited liability company, joint venture, trust or other entity of which the Corporation owns (either directly or through or together with another Subsidiary of the Corporation) either (i) a general partner, managing member or other similar interest or (ii) (A) 50% or more of the voting power of the voting capital equity interests of such corporation, partnership, limited liability company, joint venture or other entity, or (B) 50% or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership, limited liability company, joint venture or other entity.
(b) Indemnification of Directors and Officers. Subject to the operation of Section 5(d) of these By-laws, each Director and Officer shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), and to the extent authorized in subsections (i) through (iv) of this Section 5(b).
(i) Actions, Suits and Proceedings Other than By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses and Liabilities that are incurred or paid by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein (other than an action by or in the right of the Corporation), which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
(ii) Actions, Suits and Proceedings By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held harmless by the Corporation against any and all Expenses that are incurred by such Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein by or in the right of the Corporation, which such Director or Officer is, or is threatened to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in
or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made under this Section 5(b)(ii) in respect of any claim, issue or matter as to which such Director or Officer shall have been finally adjudged by a court of competent jurisdiction to be liable to the Corporation, unless, and only to the extent that, the Court of Chancery or another court in which such Proceeding was brought shall determine upon application that, despite adjudication of liability, but in view of all the circumstances of the case, such Director or Officer is fairly and reasonably entitled to indemnification for such Expenses that such court deems proper.
(iii) Survival of Rights. The rights of indemnification provided by this Section 5(b) shall continue as to a Director or Officer after he or she has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators and personal representatives.
(iv) Actions by Directors or Officers. Notwithstanding the foregoing, the Corporation shall indemnify any Director or Officer seeking indemnification in connection with a Proceeding initiated by such Director or Officer only if such Proceeding (including any parts of such Proceeding not initiated by such Director or Officer) was authorized in advance by the Board of Directors of the Corporation, unless such Proceeding was brought to enforce such Officer’s or Director’s rights to indemnification or, in the case of Directors, advancement of Expenses under these By-laws in accordance with the provisions set forth herein.
(c) Indemnification of Non-Officer Employees. Subject to the operation of Section 5(d) of these By-laws, each Non-Officer Employee may, in the discretion of the Board of Directors of the Corporation, be indemnified by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against any or all Expenses and Liabilities that are incurred by such Non-Officer Employee or on such Non-Officer Employee’s behalf in connection with any threatened, pending or completed Proceeding, or any claim, issue or matter therein, which such Non-Officer Employee is, or is threatened to be made, a party to or participant in by reason of such Non-Officer Employee’s Corporate Status, if such Non-Officer Employee acted in good faith and in a manner such Non-Officer Employee reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided by this Section 5(c) shall exist as to a Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and shall inure to the benefit of his or her heirs, personal representatives, executors and administrators. Notwithstanding the foregoing, the Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a Proceeding initiated by such Non-Officer Employee only if such Proceeding was authorized in advance by the Board of Directors of the Corporation.
(d) Determination. Unless ordered by a court, no indemnification shall be provided pursuant to this Section 5 to a Director, to an Officer or to a Non-Officer Employee unless a determination shall have been made that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal Proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. Such determination shall be made by (i) a majority vote of the Disinterested Directors, even though less than a quorum of the Board of Directors, (ii) a committee comprised of Disinterested Directors, such committee having been designated by a majority vote of the Disinterested Directors (even though less than a quorum), (iii) if there are no such Disinterested Directors, or if a majority of Disinterested
Directors so directs, by independent legal counsel in a written opinion, or (iv) by the stockholders of the Corporation.
(e) Advancement of Expenses to Directors Prior to Final Disposition.
(i) The Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in which such Director is involved by reason of such Director’s Corporate Status within thirty (30) days after the receipt by the Corporation of a written statement from such Director requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Director and shall be preceded or accompanied by an undertaking by or on behalf of such Director to repay any Expenses so advanced if it shall ultimately be determined that such Director is not entitled to be indemnified against such Expenses. Notwithstanding the foregoing, the Corporation shall advance all Expenses incurred by or on behalf of any Director seeking advancement of expenses hereunder in connection with a Proceeding initiated by such Director only if such Proceeding (including any parts of such Proceeding not initiated by such Director) was (A) authorized by the Board of Directors of the Corporation, or (B) brought to enforce such Director’s rights to indemnification or advancement of Expenses under these By-laws.
(ii) If a claim for advancement of Expenses hereunder by a Director is not paid in full by the Corporation within thirty (30) days after receipt by the Corporation of documentation of Expenses and the required undertaking, such Director may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and if successful in whole or in part, such Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such advancement of Expenses under this Section 5 shall not be a defense to an action brought by a Director for recovery of the unpaid amount of an advancement claim and shall not create a presumption that such advancement is not permissible. The burden of proving that a Director is not entitled to an advancement of expenses shall be on the Corporation.
(iii) 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 Director has not met any applicable standard for indemnification set forth in the DGCL.
(f) Advancement of Expenses to Officers and Non-Officer Employees Prior to Final Disposition.
(i) The Corporation may, at the discretion of the Board of Directors of the Corporation, advance any or all Expenses incurred by or on behalf of any Officer or any Non-Officer Employee in connection with any Proceeding in which such person is involved by reason of his or her Corporate Status as an Officer or Non-Officer Employee upon the receipt by the Corporation of a statement or statements from such Officer or Non-Officer Employee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such Officer or Non-Officer Employee and shall be preceded or accompanied by an undertaking by or on behalf of such person to repay any Expenses so advanced if it shall ultimately be
determined that such Officer or Non-Officer Employee is not entitled to be indemnified against such Expenses.
(ii) 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 Officer or Non-Officer Employee has not met any applicable standard for indemnification set forth in the DGCL.
(g) Contractual Nature of Rights.
(i) The provisions of this Section 5 shall be deemed to be a contract between the Corporation and each Director and Officer entitled to the benefits hereof at any time while this Section 5 is in effect, in consideration of such person’s past or current and any future performance of services for the Corporation. Neither amendment, repeal or modification of any provision of this Section 5 nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Section 5 shall eliminate or reduce any right conferred by this Section 5 in respect of any act or omission occurring, or any cause of action or claim that accrues or arises or any state of facts existing, at the time of or before such amendment, repeal, modification or adoption of an inconsistent provision (even in the case of a proceeding based on such a state of facts that is commenced after such time), and all rights to indemnification and advancement of Expenses granted herein or arising out of any act or omission shall vest at the time of the act or omission in question, regardless of when or if any proceeding with respect to such act or omission is commenced. The rights to indemnification and to advancement of expenses provided by, or granted pursuant to, this Section 5 shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributes of such person.
(ii) If a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within sixty (60) days after receipt by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of such indemnification under this Section 5 shall not be a defense to an action brought by a Director or Officer for recovery of the unpaid amount of an indemnification claim and shall not create a presumption that such indemnification is not permissible. The burden of proving that a Director or Officer is not entitled to indemnification shall be on the Corporation.
(iii) In any suit brought by a Director or Officer to enforce a right to indemnification hereunder, it shall be a defense that such Director or Officer has not met any applicable standard for indemnification set forth in the DGCL.
(h) Non-Exclusivity of Rights. The rights to indemnification and advancement of Expenses set forth in this Section 5 shall not be exclusive of any other right which any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any statute, provision of the Certificate or these By-laws, agreement, vote of stockholders or Disinterested Directors or otherwise.
(i) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer or Non-Officer Employee against any liability of any character asserted against or incurred by the Corporation or any such Director, Officer or Non-Officer Employee, or arising out of any such person’s Corporate Status, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL or the provisions of this Section 5.
(j) Other Indemnification. The Corporation acknowledges that certain of its Directors, Officers or Non-Officer Employees have certain rights to indemnification, advancement of Expenses and/or insurance provided by a third party entity (including, without limitation, a direct or indirect parent of the Corporation) (collectively, the “Third Party Indemnitors”). The Corporation shall be the indemnitor of first resort (i.e., its obligations under this Section 5 are primary and any obligation of the Third Party Indemnitors to advance Expenses or to provide indemnification for the same Expenses or liabilities incurred by such Directors, Officer or Non-Officer Employees are secondary), (ii) the Corporation shall be required to advance the full amount of Expenses under this Section 5 and shall be liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of these Bylaws, without regard to any rights such Directors, Officers or Non-Officer Employees may have against the Third Party Indemnitors, and, (iii) the Corporation irrevocably waives, relinquishes and releases the Third Party Indemnitors from any and all claims against the Third Party Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. No advancement or payment by the Third Party Indemnitors on behalf of a Director, Officer or Non-Officer Employee with respect to any claim for which such person has sought indemnification from the Corporation shall affect the foregoing and the Third Party Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Director, Officer or Non-Officer Employee against the Corporation. The Third Party Indemnitors are express third party beneficiaries of the terms of this Section 5(j).
6. Miscellaneous Provisions
(a) Fiscal Year. Except as otherwise determined by the Board of Directors, the fiscal year of the Corporation shall end on December 31 of each year.
(b) Seal. The Board of Directors shall have power to adopt and alter the seal of the Corporation.
(c) Execution of Instruments. Subject to any limitations which may be set forth in a resolution of the Board of Directors, all deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered into by the Corporation in the ordinary course of its business without director action may be executed on behalf of the Corporation by, a President, or by any other officer, employee or agent of the Corporation as the Board of Directors may authorize.
(d) Voting of Securities. Unless the Board of Directors otherwise provides, a President, any Vice President or the Treasurer may waive notice of and act on behalf of this Corporation, or appoint another person or persons to act as proxy or attorney in fact for this Corporation with or without discretionary power and/or power of substitution, at any meeting of stockholders or shareholders of any other corporation or organization, any of whose securities are held by this Corporation.
(e) Resident Agent. The Board of Directors may appoint a resident agent upon whom legal process may be served in any action or proceeding against the Corporation.
(f) Corporate Records. The original or attested copies of the Certificate of Incorporation, By-laws and records of all meetings of the incorporators, stockholders and the Board of Directors and the stock and transfer records, which shall contain the names of all stockholders, their record addresses and the amount of stock held by each, shall be kept at the principal office of the Corporation, at the office of its counsel, or at an office of its transfer agent.
(g) Certificate of Incorporation. All references in these By-laws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and in effect from time to time.
(h) Amendments. These By-laws may be altered, amended or repealed, and new By-laws may be adopted, by the stockholders or by the Board of Directors; provided, that (i) the Board of Directors may not alter, amend or repeal any provision of these By-laws which by law, by the Certificate of Incorporation or by these By-laws requires action by the stockholders and (ii) any alteration, amendment or repeal of these By-laws by the Board of Directors and any new By-law adopted by the Board of Directors may be altered, amended or repealed by the stockholders.
(i) Waiver of Notice. Whenever notice is required to be given under any provision of these By-laws, 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 of the event for which notice is to be given, shall be deemed equivalent to notice. 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 needs to be specified in any written waiver or any waiver by electronic transmission.
ADOPTED: SEPTEMBER 16, 2015
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HAWKEYE 360, INC.
A PUBLIC BENEFIT CORPORATION
__________________________________________________
HawkEye 360, Inc., a public benefit corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that:
ONE: The name of this corporation is HawkEye 360, Inc. The date of filing of the original certificate of incorporation of this corporation with the Secretary of State of the State of Delaware was September 16, 2015.
TWO: This certificate of incorporation was duly adopted in accordance with the provisions of Sections 242 and 245 of the DGCL, and has been duly approved by the written consent of the stockholders of this corporation in accordance with Section 228 of the DGCL.
THREE: Pursuant to Sections 242 and 245 of the DGCL, the certificate of incorporation of this corporation, as heretofore amended, is hereby amended, integrated and restated to read in its entirety as follows:
SECTION 1.
The name of this corporation is HawkEye 360, Inc. (the “Corporation”). The Corporation shall be a public benefit corporation as contemplated by Subchapter XV of the DGCL, or any successor provision.
SECTION 2.
The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Zip Code 19801, and the name of the registered agent of the Corporation in the State of Delaware at such address is The Corporation Trust Company.
SECTION 3.
The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations, including public benefit corporations, may be organized under the DGCL, including without limitation the following specific public benefit: To preserve the safety, security and resilience of the American people and our allies.
SECTION 4.
Section 4.1 The Corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares that the Corporation is authorized to issue is 2,020,000,000 shares, consisting of 2,000,000,000 shares of Common Stock, par value $0.0001 per share, and 20,000,000 shares of Preferred Stock, par value $0.0001 per share.
Section 4.2 The Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Corporation (the “Board”) is hereby expressly authorized to provide for the issue of all or any of the unissued and undesignated shares of the Preferred Stock, in one or more series, and to fix the number of shares of such series and to determine for each such series, such voting powers, full or limited, or no voting powers, and such designation, preferences, and relative, participating, optional, or other rights and such qualifications, limitations, or restrictions thereof, as shall be set forth in a certificate of designation adopted by the Board and filed in accordance with the DGCL.
Section 4.3 Irrespective of the provisions of Section 242(b)(2) of the DGCL, but subject to the terms of any certificate of designation filed with respect to any series of Preferred Stock, the holders of Preferred Stock and Common Stock shall vote together, and not as separate classes, on any amendment to this Certificate of Incorporation to increase or decrease the number of authorized shares of Preferred Stock or Common Stock.
Section 4.4 Each outstanding share of Common Stock shall entitle the holder thereof to one vote on each matter properly submitted to the stockholders of the Corporation for their vote; provided, however, that, except as otherwise required by applicable law, holders of Common Stock shall not be entitled to vote on any amendment to this certificate of incorporation (as amended from time to time, the “Certificate of Incorporation”) (including any certificate of designation filed with respect to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled, either separately or together as a class with the holders of one or more other affected series of Preferred Stock, to vote thereon pursuant to applicable law or the Certificate of Incorporation (including any certificate of designation filed with respect to any series of Preferred Stock).
SECTION 5.
For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation, of its directors and stockholders, or any class thereof, as the case may be, it is further provided that:
Section 5.1 MANAGEMENT OF THE BUSINESS.
Except as otherwise provided by the DGCL or the Certificate of Incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the Board. Subject to any rights of the holders of shares of any one or more series of Preferred Stock then outstanding to elect additional directors under specified circumstances, the number of directors that shall constitute the Board shall be fixed exclusively by the Board.
Section 5.2 BOARD OF DIRECTORS
Subject to the rights of the holders of any one or more series of Preferred Stock to elect additional directors under specified circumstances, the directors shall be divided into three classes designated as
Class I, Class II and Class III, respectively. The Board is authorized to assign members of the Board already in office to such classes at the time the classification becomes effective (the “Filing Date”). At the first annual meeting of stockholders following the Filing Date, the initial term of office of the Class I directors shall expire and Class I directors shall be elected for a full term of three years. At the second annual meeting of stockholders following the Filing Date, the initial term of office of the Class II directors shall expire and Class II directors shall be elected for a full term of three years. At the third annual meeting of stockholders following the Filing Date, the initial term of office of the Class III directors shall expire and Class III directors shall be elected for a full term of three years. At each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose terms expire at such annual meeting.
Notwithstanding the foregoing provisions of this section, each director shall serve until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation or removal. No decrease in the number of directors constituting the Board shall remove or shorten the term of any incumbent director.
Section 5.3 REMOVAL OF DIRECTORS
Subject to the rights of the holders of any one or more series of Preferred Stock to remove directors elected by such series of Preferred Stock, any individual director or the entire Board may be removed from office at any time, but only for cause, and only by the affirmative vote of the holders of at least 662/3% of the voting power of all the then-outstanding shares of the capital stock of the Corporation entitled to vote generally at an election of directors, voting together as a single class. At least forty-five (45) days prior to any annual or special meeting of stockholders at which it is proposed that any director be removed from office, written notice of such proposed removal and the alleged grounds thereof shall be sent to the director whose removal will be considered at the meeting.
Section 5.4 VACANCIES.
Subject to any limitations imposed by applicable law and subject to the rights of the holders of any one or more series of Preferred Stock to elect additional directors or fill vacancies in respect of such directors, any vacancies on the Board resulting from death, resignation, disqualification, removal or other causes and any newly created directorships resulting from any increase in the number of directors, shall be filled only by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board, or by a sole remaining director, and not by the stockholders. Any director elected to fill a newly created directorship or vacancy in accordance with the preceding sentence shall hold office until the next annual meeting of stockholders held to elect the class of directors to which such director is elected and until such director’s successor shall have been elected and qualified or such director’s earlier death, resignation or removal.
Section 5.5 PREFERRED STOCKHOLDERS ELECTION RIGHTS.
Whenever the holders of any one or more series of Preferred Stock shall have the right, voting separately as a series or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election, term of office, removal and other features of such directorships shall be governed by the terms of the Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock) applicable thereto. The number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number
fixed pursuant to Section 5.1 hereof, and the total number of directors constituting the whole Board shall be automatically adjusted accordingly. Except as otherwise provided by the Board 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 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, disqualification or removal of such additional directors, shall forthwith terminate (in which case each such director thereupon shall cease to be qualified as, and shall cease to be, a director) and the total authorized number of directors of the Corporation shall automatically be reduced accordingly.
Section 5.6 BYLAW AMENDMENTS.
The Board is expressly authorized and empowered to adopt, amend or repeal any provisions of the Amended and Restated Bylaws of the Corporation (as amended from time to time, the “Bylaws”) without the assent or vote of the stockholders in any manner not inconsistent with the laws of the State of Delaware or the Certificate of Incorporation. The stockholders shall also have power to adopt, amend or repeal the Bylaws; provided, however, that, in addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by the Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock), such action by stockholders shall require the affirmative vote of the holders of at least 662/3% of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote thereon, voting together as a single class.
Section 5.7 STOCKHOLDER ACTIONS.
a. The directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.
b. Subject to any rights of the holders of shares of any one or more series of Preferred Stock then outstanding, any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders and may not be effected by consent in lieu of a meeting.
c. Subject to any rights of the holders of shares of any series of Preferred Stock then outstanding, special meetings of stockholders of the Corporation may be called only by the Board and shall be called by the Secretary of the corporation upon the request of a majority of the directors then in office, but a special meeting may not be called by any other person or persons and any power of stockholders to call a special meeting of stockholders is specifically denied. Only such business shall be considered at a special meeting of stockholders as shall have been stated in the notice for such meeting.
SECTION 6.
No director or officer of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL, as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director or officer of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal. Solely for purposes of this Section 6, “officer” shall have the meaning provided in Section 102(b)(7) of the DGCL.
SECTION 7.
Section 7.1 Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware and any appellate court therefrom shall be the sole and exclusive forum for: (A) any derivative claim or cause of action brought on behalf of the Corporation; (B) any claim or cause of action that is based upon a violation of a duty owed by any current or former director, officer, other employee or stockholder of the Corporation, to the Corporation or the Corporation’s stockholders; (C) any claim or cause of action against the Corporation or any current or former director, officer or other employee of the Corporation, arising out of or pursuant to any provision of the DGCL, the Certificate of Incorporation or the Bylaws; (D) any claim or cause of action seeking to interpret, apply, enforce or determine the validity of the Certificate of Incorporation or the Bylaws (including any right, obligation, or remedy thereunder); (E) any claim or cause of action as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware; and (F) any claim or cause of action against the Corporation or any current or former director, officer or other employee of the Corporation, governed by the internal-affairs doctrine or otherwise related to the Corporation’s internal affairs, in all cases to the fullest extent permitted by applicable law; provided, however, that if such court does not have, or declines to accept, jurisdiction over such a claim or cause of action, then the United States District Court for the District of Delaware shall be the sole and exclusive forum for such claim or cause of action.
Section 7.2 Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by applicable law, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, including all causes of action asserted against any defendant named in such complaint. For the avoidance of doubt, this provision is intended to benefit and may be enforced by the Corporation, its officers and directors, the underwriters for any offering giving rise to such complaint, and any other professional entity whose profession gives authority to a statement made by that person or entity and who has prepared or certified any part of the documents underlying the offering.
SECTION 8.
Section 8.1 Any person or entity holding, owning, or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to the provisions of the Certificate of Incorporation.
Section 8.2 The Corporation reserves the right to amend, alter, change or repeal, at any time and from time to time, any provision contained in the Certificate of Incorporation and all rights, preferences and privileges of whatsoever nature conferred upon the stockholders, directors or any other persons whomsoever by and pursuant to the Certificate of Incorporation are granted subject to this reservation. For the avoidance of doubt, but subject to the rights of the holders of any outstanding series of Preferred Stock, Section 242(d) of the DGCL shall apply to amendments to the Certificate of Incorporation.
Section 8.3 Notwithstanding any other provisions of the Certificate of Incorporation or any provision of applicable law that might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of capital stock of the Corporation required by applicable law or by the Certificate of Incorporation or any certificate of designation filed with respect to a series of Preferred Stock, the affirmative vote of the holders of at least 662/3% of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together
as a single class, shall be required to alter, amend or repeal, or adopt any provision inconsistent with, Sections 5, 6, and this Section 8.
SECTION 9.
Section 9.1 If any provision or provisions of the Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of the Certificate of Incorporation (including, without limitation, each portion of any paragraph of the Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby.
The Corporation has caused this certificate of incorporation to be signed by a duly authorized officer of the Corporation on [MONTH][DAY], 2026.
| | | | | | | | |
| HAWKEYE 360, INC. |
| | |
| | |
| By: | |
| | JOHN SERAFINI |
| | Chief Executive Officer |
AMENDED AND RESTATED BYLAWS
OF
HAWKEYE 360, INC.
__________________________________________________
(A DELAWARE PUBLIC BENEFIT CORPORATION)
SECTION 1.
OFFICES
Section 1.1 Registered Office. The registered office of HawkEye 360, Inc. (the “Corporation”) in the State of Delaware and the name of the Corporation’s registered agent at such address shall be as set forth in the certificate of incorporation of the Corporation (as the same may be amended and/or restated from time to time, the “Certificate of Incorporation”).
Section 1.2 Other Offices. The Corporation may at any time establish other offices both within and without the State of Delaware.
SECTION 2.
CORPORATE SEAL
Section 2.1 Corporate Seal. The Board of Directors of the Corporation (the “Board”) may adopt a corporate seal. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 3.
STOCKHOLDERS’ MEETINGS
Section 3.1 Place of Meetings. Meetings of the stockholders of the Corporation may be held at such place, if any, either within or without the State of Delaware, as may be determined from time to time by the Board (or its designee). The Board may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication as provided under the General Corporation Law of the State of Delaware (“DGCL”) and Section 3.9 below.
Section 3.2 Annual Meetings.
(a) The annual meeting of the stockholders of the Corporation, for the purpose of election of directors and for such other business as may properly come before it, shall be held on such date and time as may be determined from time to time by the Board (or its designee). Any annual meeting of stockholders may be postponed, rescheduled or cancelled by the Board, or any director or officer of the Corporation to whom the Board delegates such authority, at any time before or after notice of such
meeting has been given to stockholders. Nominations of persons for election to the Board and proposals of other business to be considered by the stockholders may be made at an annual meeting of stockholders:
(i) pursuant to the Corporation’s notice of meeting of stockholders (or any supplement thereto);
(ii) by or at the direction of the Board (or a duly authorized committee thereof); or
(iii) by any stockholder of the Corporation who was a stockholder of record at the time of giving the stockholder’s notice provided for in Section 3.2(b) of these bylaws (as may be amended and/or restated from time to time, the “Bylaws”) and who is a stockholder of record at the time of the annual meeting of stockholders, who is entitled to vote at the meeting and who complied with the procedures and requirements set forth in this Section 3.2.
For the avoidance of doubt, clause (iii) above shall be the exclusive means for a stockholder to make nominations and submit other business before an annual meeting of stockholders.
(b) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under the DGCL, the Certificate of Incorporation and the Bylaws, and only such nominations shall be made and such other business shall be conducted as shall have been properly brought before the meeting in accordance with the procedures below.
(1) For nominations for the election to the Board to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 3.2(a), the stockholder must deliver written notice to the Secretary at the principal executive offices of the Corporation on a timely basis as set forth in Section 3.2(b)(3) and must update and supplement the information contained in such written notice on a timely basis as set forth in Section 3.2(c). In addition to all of the information required by Section 3.2(b)(4), such stockholder’s notice shall include as to each nominee such stockholder proposes to nominate at the meeting:
(A) the name, age, business address and residence address of such nominee,
(B) the principal occupation or employment of such nominee,
(C) the class or series and number of shares of each class or series of capital stock of the Corporation that are owned of record and beneficially by such nominee and list of any pledge of or encumbrances on such shares,
(D) the date or dates on which such shares were acquired and the investment intent of such acquisition,
(E) the questionnaire, representation and agreement required by Section 3.2(e), completed and signed by such nominee, and
(F) all other information concerning 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 and whether or not proxies are being or will be solicited), or that is otherwise required to be disclosed or provided to the Corporation pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the “1934 Act”) (including such
person’s written consent to being named in a proxy statement, associated proxy card and other filings as a nominee and to serving as a director if elected).
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 to serve on any committee or sub-committee of the Board, in either case under any applicable stock exchange listing requirements, applicable law or the Policies (as defined below). The number of nominees a stockholder may nominate for election at an annual meeting on its own behalf (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 an annual meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such annual meeting. A stockholder may not designate any substitute or alternate nominees unless the stockholder provides timely notice of such substitute or alternate nominee(s) in accordance with this Section 3.2, in the case of an annual meeting, or Section 3.3, in the case of a special meeting (and such notice contains all of the information, representations, questionnaires and certifications with respect to such substitute or alternate nominee(s) that are required by the Bylaws with respect to nominees for director).
(2) For business other than nominations for the election to the Board to be properly brought before an annual meeting by a stockholder pursuant to clause (ii) of Section 3.2(a), the stockholder must deliver written notice to the Secretary at the principal executive offices of the Corporation on a timely basis as set forth in Section 3.2(b)(3), and must update and supplement the information contained in such written notice on a timely basis as set forth in Section 3.2(c). In addition to all of the information required by Section 3.2(b)(4), such stockholder’s notice shall include as to each matter such stockholder proposes to bring before the meeting:
(A) a brief description of the business desired to be brought before the meeting,
(B) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws, the language of the proposed amendment),
(C) the reasons for conducting such business at the meeting, and
(D) any material interest (including any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the Corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent.
(3) To be timely, the written notice required by Section 3.2(b)(1) or 3.2(b)(2) must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day, nor earlier than the 120th day, prior to the first anniversary of the immediately preceding year’s annual meeting (for purposes of notice required for action to be taken at the Corporation’s first annual meeting of stockholders after its initial public offering of common stock, the date of the immediately preceding year’s annual meeting shall be deemed to have occurred on June 1st in such immediately preceding calendar year); provided, however, that, subject to the last sentence of this Section 3.2(b)(3), in the event that the date of the annual meeting is advanced more than 30 days prior to or delayed by more than 70 days
after the anniversary of the preceding year’s annual meeting, or if no annual meeting was held (or deemed to have been held), notice by the stockholder to be timely must be so received not earlier than the 120th day prior to such annual meeting and not later than the later of the close of business on (i) the 90th day prior to such annual meeting or (ii) the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation.
In no event shall an adjournment or postponement (or the public announcement thereof) of an annual meeting for which notice has been given, or for which a public announcement of the date of the meeting has been made by the Corporation, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(4) The written notice required by Sections 3.2(b)(1) or 3.2(b)(2) shall also include, as of the date of the notice and as to the stockholder giving the notice, the beneficial owner, if any, on whose behalf the nomination or proposal is made and any affiliate who controls (as such term is defined in Rule 405 under the Securities Act of 1933, as amended (the “1933 Act”) either of the foregoing stockholder or beneficial owner, directly or indirectly (each, a “Proponent” and collectively, the “Proponents”):
(A) the name and address of each Proponent, including, if applicable, such name and address as they appear on the Corporation’s books and records;
(B) the class, series and number of shares of each class or series of the capital stock of the Corporation that are, directly or indirectly, owned of record or beneficially (within the meaning of Rule 13d-3 under the 1934 Act) by each Proponent (provided, that for purposes of this Section 3.2(b)(4), such Proponent shall in all events be deemed to beneficially own all shares of any class or series of capital stock of the Corporation as to which such Proponent or any of its affiliates or associates has a right to acquire beneficial ownership whether immediately or at any time in the future);
(C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal (and/or the voting of shares of any class or series of capital stock of the Corporation, other than a revocable proxy given in response to a proxy solicitation made to 10 or more persons) between or among any Proponent and any of its affiliates or associates, and/or any other persons (including their names) including without limitation, any agreements, arrangements or understandings required to be disclosed pursuant to Item 5 or Item 6 of 1934 Act Schedule 13D, regardless of whether the requirement to file a Schedule 13D is applicable;
(D) a representation that the stockholder is a holder of record of shares of the Corporation at the time of giving notice, will be entitled to vote at the meeting, and that such stockholder (or a qualified representative thereof) intends to appear at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 3.2(b)(1)) or to propose the business that is specified in the notice (with respect to a notice under Section 3.2(b)(2));
(E) a representation as to whether any Proponent or any other participant (as defined in Item 4 of Schedule 14A under the 1934 Act) will engage in a solicitation with respect to such nomination or proposal and, if so, the name of each participant in such solicitation and the amount of the cost of solicitation that has been and will be borne, directly or indirectly, by each participant in such
solicitation, and a representation as to whether the Proponents intend or are part of a group which intends to:
(x) deliver, or make available, a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s voting shares required to approve or adopt the proposal or elect the nominee,
(y) otherwise solicit proxies or votes from stockholders in support of such proposal or nomination and/or
(z) solicit proxies in support of any proposed nominee in accordance with Rule 14a-19 promulgated under the 1934 Act;
(F) a description of all Derivative Transactions (as defined below) by each Proponent during the previous 12-month period, including the date of the transactions and the class, series and number of securities involved in, and the material economic or voting terms of, such Derivative Transactions;
(G) a certification regarding whether each Proponent has complied with all applicable federal, state and other legal requirements in connection with such Proponent’s acquisition of shares of capital stock or other securities of the Corporation and/or such Proponent’s acts or omissions as a stockholder or beneficial owner of the Corporation; and
(H) any other information relating to each Proponent 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 proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14 of the 1934 Act and the rules and regulations promulgated thereunder.
(c) A stockholder providing the written notice required by Section 3.2(b)(1) or (2) shall update and supplement such notice in writing, if necessary, so that the information (other than the representations required by Section 3.2(b)(4)(E)) provided or required to be provided in such notice is true and correct in all material respects as of (i) the record date for the determination of stockholders entitled to notice of the meeting and (ii) the date that is five Business Days (as defined below) prior to the meeting and, in the event of any adjournment or postponement thereof, five Business Days prior to such adjourned or postponed meeting; provided, that no such update or supplement shall cure or affect the accuracy (or inaccuracy) of any representations made by any Proponent, any of its affiliates or associates, or a nominee or the validity (or invalidity) of any nomination or proposal that failed to comply with this Section 3.2 or is rendered invalid as a result of any inaccuracy therein.
In the case of an update and supplement pursuant to clause (i) of this Section 3.2(c), such update and supplement must be received by the Secretary at the principal executive offices of the Corporation not later than five Business Days after the later of the record date for the determination of stockholders entitled to notice of the meeting or the public announcement of such record date. In the case of an update and supplement pursuant to clause (ii) of this Section 3.2(c), such update and supplement shall be received by the Secretary at the principal executive offices of the Corporation not later than two Business Days prior to the date for the meeting, and, in the event of any adjournment or postponement thereof, two Business Days prior to such adjourned or postponed meeting (or if there are fewer than two Business Days between the date for the meeting, or the date of the immediately preceding adjournment or
postponement thereof, and the date for the adjourned or postponed meeting, not later than the day prior to such adjourned or postponed meeting).
(d) Notwithstanding anything in Section 3.2(b)(3) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board at least 10 days before the last day a stockholder may deliver a notice of nomination in accordance with Section 3.2(b)(3), a stockholder’s notice required by this Section 3.2 and that complies with the requirements in Section 3.2(b)(1), other than the timing requirements in Section 3.2(b)(3), shall also be considered timely, but only with respect to nominees for the new positions created by such increase, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.
(e) To be eligible to be a nominee for election or re-election as a director of the Corporation pursuant to a nomination under clause (iii) of Section 3.2(a) or clause (ii) of Section 3.3(c), each Proponent must deliver (in accordance with the time periods prescribed for delivery of notice under Sections 3.2(b)(3), 3.2(d) or 3.3(c), as applicable) to the Secretary at the principal executive offices of the Corporation a completed written questionnaire with respect to the background, qualifications, stock ownership and independence of such proposed nominee (in the form provided by the Secretary within 10 days following a written request therefor by a stockholder of record) and a written representation and agreement (in the form provided by the Secretary within 10 days following written request therefor by a stockholder of record) that such person:
(i) is not and will not become a party to any agreement, arrangement or understanding (whether oral or in writing) 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 issue or question that (x) has not been disclosed in the questionnaire or (y) could limit or interfere with such person’s ability to comply with such person’s fiduciary duties under applicable law;
(ii) is not and will not become a party to any agreement, arrangement or understanding (whether oral or in writing) with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Corporation or a nominee that has not been disclosed in such questionnaire;
(iii) would be in compliance with, if elected as a director of the Corporation (and a statement as to whether such person, if elected, intends to comply with), all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation that are publicly disclosed or which were provided by the Secretary with the written representation and agreement required by this Section 3.2(e) (together, the “Policies”); and
(iv) if elected as a director of the Corporation, intends to serve the entire term until the next meeting at which such candidate would face re-election.
(f) Notwithstanding anything to the contrary in the Bylaws, unless otherwise required by applicable law, in the event that any Proponent (i) provides notice pursuant to Rule 14a-19(b) promulgated under the 1934 Act with respect to one or more proposed nominees and (ii) subsequently fails to
(x) comply with the requirements of Rule 14a-19 promulgated under the 1934 Act (or fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such
Proponent has met the requirements of Rule 14a-19(a)(3) promulgated under the 1934 Act in accordance with the next sentence) or
(y) inform the Corporation that they no longer plan to solicit proxies in accordance with the requirements of Rule 14a-19 under the 1934 Act by delivering a written notice to the Secretary at the principal executive offices of the Corporation within two (2) Business Days after the occurrence of such change,
then the nomination of each such proposed nominee shall be disregarded (and such nominee disqualified from standing for election or re-election), notwithstanding that the nominee is included (as applicable) as a nominee in the Corporation’s proxy statement, notice of meeting or other proxy materials for any stockholder meeting (or any supplement thereto) and notwithstanding that proxies or votes in respect of the election of such proposed nominees may have been received by the Corporation (which proxies and votes shall be disregarded).
If any Proponent provides notice pursuant to Rule 14a-19(b) promulgated under the 1934 Act, such Proponent shall deliver to the Corporation, no later than five (5) Business Days prior to the applicable meeting, reasonable evidence sufficient to demonstrate that it has met the requirements of Rule 14a-19(a)(3) promulgated under the 1934 Act.
Notwithstanding anything to the contrary set forth herein, and for the avoidance of doubt, the nomination of any person whose name is included (as applicable) as a nominee in the Corporation’s proxy statement, notice of meeting or other proxy materials for any stockholder meeting (or any supplement thereto) as a result of any notice provided by any Proponent pursuant to Rule 14a-19(b) promulgated under the 1934 Act with respect to such proposed nominee and whose nomination is not made by or at the direction of the Board or any authorized committee thereof shall not be deemed (for purposes of clause (i) of Section 3.2(a) or otherwise) to have been made pursuant to the Corporation’s notice of meeting (or any supplement thereto) and any such nominee may only be nominated by a Proponent pursuant to clause (iii) of Section 3.2(a) and, in the case of a special meeting of stockholders, pursuant to and to the extent permitted under Section 3.3(c).
A person shall not be eligible for election or re-election as a director at an annual meeting unless the person is nominated in accordance with clause (ii) or (iii) of Section 3.2(a) and in accordance with the procedures and requirements set forth in Section 3.2(b), Section 3.2(c), Section 3.2(d), Section 3.2(e) and Section 3.2(f), as applicable. Only such business shall be conducted at any annual meeting of the stockholders of the Corporation as shall have been brought before the meeting in accordance with Section 3.2(a) and in accordance with the procedures and requirements set forth in Section 3.2(b), Section 3.2(c) and Section 3.2(f), as applicable. Except as otherwise required by applicable law, and subject to the supervision, direction and control of the Board of Directors, the chairperson of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made, or proposed, as the case may be, in accordance with the procedures and requirements set forth in the Bylaws (including, without limitation, compliance with Rule 14a-19 promulgated under the 1934 Act) and, if any proposed nomination or business is not in compliance with the Bylaws, or the Proponent does not act in accordance with the representations required in this Section 3.2, to declare that such proposal or nomination shall not be presented for stockholder action at the meeting and shall be disregarded (and such nominee disqualified from standing for election or re-election), or that such business shall not be transacted, notwithstanding that such proposal or nomination is set forth in (as applicable) the Corporation’s proxy statement, notice of meeting or other proxy materials and
notwithstanding that proxies or votes in respect of such nomination or such business may have been solicited or received.
Notwithstanding the foregoing provisions of this Section 3.2, unless otherwise required by applicable law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded (and such nominee disqualified from standing for election or re-election) and such proposed business shall not be transacted, notwithstanding that such nomination or proposed business is set forth in (as applicable) the Corporation’s proxy statement, notice of meeting or other proxy materials and notwithstanding that proxies or votes in respect of such vote may have been solicited or received by the Corporation.
(g) For purposes of Sections 3.2 and 3.3,
(1) “affiliates” and “associates” shall have the meanings set forth in Rule 405 under the 1933 Act;
(2) “Business Day” means any day other than Saturday, Sunday or a day on which banks are closed in New York City, New York;
(3) “close of business” means 6:00 p.m. local time at the principal executive offices of the Corporation on any calendar day, whether or not the day is a Business Day;
(4) “Derivative Transaction” means any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, any Proponent or any of its affiliates or associates, whether record or beneficial:
(A) the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the Corporation;
(B) that otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of the Corporation;
(C) the effect or intent of which is to mitigate loss, manage risk or benefit from changes in value or price with respect to any securities of the Corporation; or
(D) that provides the right to vote (other than a revocable proxy given in response to a proxy solicitation made to 10 or more persons) or increase or decrease the voting power of, such Proponent, or any of its affiliates or associates, directly or indirectly, with respect to any securities of the Corporation,
which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation or similar right, short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate interest of such Proponent in the securities of the Corporation held by any general or limited partnership, or any limited liability company, of which such Proponent is, directly or indirectly, a general partner or managing member; and
(5) “public announcement” means disclosure in a press release reported by the Dow Jones News Service, Associated Press, Business Wire, GlobeNewswire or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act or by such other means reasonably designed to inform the public or security holders in general of such information, including, without limitation, posting on the Corporation’s investor relations website
(6) a “qualified representative” of a stockholder shall mean (A) a duly authorized officer, manager, trustee or partner of such stockholder or (B) a person authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders, and such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, shall be provided to the Secretary of the Corporation at least five Business Days prior to the meeting of stockholders.
Section 3.3 Special Meetings.
(a) Special meetings of the stockholders of the Corporation may only be called in the manner provided in the Certificate of Incorporation. Any special meeting of stockholders previously scheduled by the Board may be postponed, rescheduled or cancelled by the Board, or any director or officer to whom the Board has delegated such authority, at any time before or after notice of such meeting has been given to stockholders.
(b) The Board (or its designee) shall determine the date and time of such special meeting. Upon determination of the date, time and place, if any, of the meeting, the Secretary shall cause a notice of meeting to be given to the stockholders entitled to vote, in accordance with the provisions of Section 3.4.
(c) 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 may be made at a special meeting of stockholders at which directors are to be elected
(i) by or at the direction of the Board or a duly authorized committee thereof or
(ii) by any stockholder of the Corporation who is a stockholder of record at the time of giving notice provided for in this paragraph and who is a stockholder of record at the time of the special meeting, who is entitled to vote at the meeting and who complies with Sections 3.2(b)(1), 3.2(b)(4), 3.2(c), 3.2(e) and 3.2(f).
The number of nominees a stockholder may nominate for election at a special meeting on its own behalf (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 a special meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such special meeting. In the event the Corporation calls a special meeting of stockholders for the purpose of submitting a proposal to stockholders for the election of one or more directors, any such stockholder of record 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 written notice setting forth the information required by Sections 3.2(b)(1) and 3.2(b)(4) shall be received by the Secretary at the principal executive offices of the Corporation not earlier than the close of business on 120th day prior to such special meeting and not later than the close of business on the later of (i) the 90th day prior to such
meeting or (ii) the tenth day following the day on which the Corporation first makes a public announcement of the date of the special meeting at which directors are to be elected. The stockholder shall also update and supplement such information as required under Section 3.2(c).
In no event shall an adjournment or a postponement (or the public announcement thereof) of a special meeting for which notice has been given, or for which a public announcement of the date of the meeting has been made by the Corporation, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(d) A person shall not be eligible for election or re-election as a director at the special meeting unless the person is nominated either in accordance with clause (i) or clause (ii) of Section 3.3(c). Except as otherwise required by applicable law, and subject to the supervision, direction and control of the Board of Directors, the chairperson of the meeting shall have the power and duty to determine whether a nomination was made in accordance with the procedures and requirements set forth in the Bylaws and, if any proposed nomination is not in compliance with the Bylaws (including, without limitation, compliance with Rule 14a-19 under the 1934 Act), or if the Proponent does not act in accordance with the representations required in Section 3.2, to declare that such nomination shall not be presented for stockholder action at the meeting and shall be disregarded (and such nominee disqualified from standing for election or re-election), notwithstanding that such nomination is set forth in (as applicable) the Corporation’s proxy statement, notice of meeting or other proxy materials and notwithstanding that proxies or votes in respect of such nomination may have been solicited or received.
Notwithstanding the foregoing provisions of this Section 3.3, unless otherwise required by applicable law, if the stockholder (or a qualified representative of the stockholder) does not appear at the special meeting of stockholders of the Corporation to present a nomination, such nomination shall be disregarded (and such nominee disqualified from standing for election or re-election), notwithstanding that the nomination is set forth (as applicable) in the Corporation’s proxy statement, notice of meeting or other proxy materials and notwithstanding that proxies or votes in respect of such nomination may have been solicited or received by the Corporation.
(e) Notwithstanding the foregoing provisions of Sections 3.2 and 3.3, a stockholder must also comply with all applicable requirements of the 1934 Act and the rules and regulations promulgated thereunder with respect to the matters set forth in Sections 3.2 and 3.3, and any failure to comply with such requirements shall be deemed a failure to comply with Sections 3.2 or 3.3, as applicable; provided, however, that, to the fullest extent not prohibited by applicable law, any references in the Bylaws to the 1934 Act or the rules and regulations promulgated thereunder are not intended to and shall not limit the requirements applicable to proposals and/or nominations to be considered pursuant to Sections 3.2(a)(iii) and 3.3(c). Nothing in the Bylaws shall be deemed to affect any rights of holders of any class or series of preferred stock to nominate and elect directors pursuant to and to the extent provided in any applicable provision of the Certificate of Incorporation.
Section 3.4 Notice of Meetings. Except as otherwise provided by applicable law, the Certificate of Incorporation or the Bylaws, notice of each meeting of stockholders shall be given not less than ten nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of such meeting. Such notice shall specify the date, time and place, if any, of the meeting, the record date for determining stockholders entitled to vote at the meeting, if such record date is different from the record date for determining stockholders entitled to notice of the meeting, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at any such meeting, and,
in the case of special meetings, the purpose or purposes of the meeting. Notice shall be deemed given as provided in Section 232 of the DGCL.
Section 3.5 Quorum and Vote Required. At all meetings of stockholders, except where otherwise required by law or by the Certificate of Incorporation, or by the Bylaws, the presence, in person, by remote communication, if applicable, or by proxy, of the holders of a majority of the voting power of the outstanding shares of stock entitled to vote at the meeting shall constitute a quorum for the transaction of business. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Unless a different or minimum vote is provided by law or by applicable stock exchange rules, or by the Certificate of Incorporation or the Bylaws, in which case such different or minimum vote shall be the applicable vote on the matter, in all matters other than the election of directors, the affirmative vote of a majority of the votes cast on such matter, voting affirmatively or negatively (excluding abstentions and broker non-votes) shall be the act of the stockholders. Except as otherwise required by law, the Certificate of Incorporation or the Bylaws, directors shall be elected by a plurality of the votes of the shares present in person, by remote communication, if applicable, or represented by proxy at the meeting and entitled to vote in the election of directors. Where a separate vote by a class or classes or series is required, except as required by law or by the Certificate of Incorporation or the Bylaws, the holders of a majority of the voting power of the outstanding shares of such class or classes or series, present in person, by remote communication, if applicable, or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter.
Unless a different or minimum vote is provided by law or by the Certificate of Incorporation or the Bylaws or any applicable stock exchange rules, in which case such different or minimum vote shall be the applicable vote on the matter, the affirmative vote of the holders of a majority (or plurality, in the case of the election of directors) of the votes cast on such matter, voting affirmatively or negatively (excluding abstentions and broker non-votes) shall be the act of such class or classes or series.
Section 3.6 Adjournment and Notice of Adjourned Meetings. Any meeting of stockholders, whether annual or special, may be adjourned from time to time either by the chairperson of the meeting or by the stockholders by the affirmative vote of a majority of the votes cast, voting affirmatively or negatively (excluding abstentions and broker non-votes). When a meeting is adjourned to another time or place, if any, (including an adjournment taken to address a technical failure to convene or continue a meeting using remote communication) notice need not be given of the adjourned meeting if the time and place, if any, thereof and the means of remote communication, if any, by which stockholders and proxyholders may be deemed present in person and may vote at such meeting are announced at the meeting at which the adjournment is taken or are
(i) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxy holders to participate in the meeting by means of remote communication or
(ii) set forth in the notice of meeting given in accordance with Section 3.4.
At the adjourned meeting, the Corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the
adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date so fixed for notice of such adjourned meeting.
Section 3.7 Voting Rights. For the purpose of determining those stockholders entitled to vote at any meeting of the stockholders or adjournment thereof, except as otherwise provided by applicable law, only persons in whose names shares stand on the stock records of the Corporation on the record date shall be entitled to vote at any meeting of stockholders. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy. No proxy shall be voted after three years from its date of creation unless the proxy provides for a longer period. Voting at meetings of stockholders need not be by written ballot. Any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, which shall be reserved for the exclusive use by the Board.
Section 3.8 List of Stockholders. The corporation shall prepare, no later than the tenth day before each meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder; provided, however, if the record date for determining the stockholders entitled to vote is less than ten days before the meeting date, the list shall reflect all of the stockholders entitled to vote as of the tenth day before the meeting date. Nothing in this Section 3.8 shall require the corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of ten days ending on the day before the meeting date:
(a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or
(b) during ordinary business hours, at the principal place of business of the Corporation.
In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation.
Section 3.9 Remote Communication; Delivery to the Corporation.
(a) If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxyholders not physically present at a stockholder meeting may, by means of remote communication:
(1) participate in a meeting of stockholders; and
(2) 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 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.
(b) Whenever Section 3.2 or 3.3 requires one or more persons (including a record or beneficial owner of capital stock) to deliver a document or information to the Corporation or any officer, employee or agent thereof (including any notice, request, questionnaire, revocation, representation or other document or agreement), such document or information shall be in writing exclusively (and not in an electronic transmission) and shall be delivered exclusively by hand (including, without limitation, overnight courier service) or by certified or registered mail, return receipt requested and the Corporation shall not be required to accept delivery of any document not in such written form or so delivered.
Section 3.10 Organization.
(a) At every meeting of stockholders, a person designated by the Board shall act as chairperson of the meeting of stockholders. If no chairperson of the meeting of stockholders is so designated, then the Chairperson of the Board, or if no Chairperson has been appointed, is absent or refuses to act, the Chief Executive Officer, or if no Chief Executive Officer is then serving or the Chief Executive Officer is absent or refuses to act, the President, or, if the President is absent or refuses to act, a chairperson of the meeting chosen by the stockholders by the affirmative vote of a majority of the votes cast, voting affirmatively or negatively (excluding abstentions and broker non-votes), shall act as chairperson of the meeting of stockholders. A person designated by the Board shall act as secretary of the meeting. If no secretary of the meeting is designated, then the Secretary, or, in the Secretary’s absence, an Assistant Secretary or other officer or other person directed to do so by the chairperson of the meeting, shall act as secretary of the meeting.
(b) The Board shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board, if any, the chairperson of the meeting shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the Corporation and their duly authorized and constituted proxies and such other persons as the chairperson shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of the opening and closing of the polls for balloting on matters that are to be voted on by ballot. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting. Unless and to the extent determined by the Board or the chairperson of the meeting, meetings of stockholders shall not be required to be held in accordance with rules of parliamentary procedure.
(c) The Corporation may and shall, if required by applicable law, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation 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 chairperson of the
meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspectors shall:
(1) ascertain the number of shares outstanding and the voting power of each;
(2) determine the shares represented at a meeting and the validity of proxies and ballots;
(3) count all votes and ballots;
(4) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and
(5) certify their determination of the number of shares represented at the meeting, and their count of all votes and ballots.
The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any information provided in accordance with Sections 211(e) or 212(c)(2) of the DGCL, or any information provided pursuant to Sections 211(a)(2)b.(i) or (iii) of the DGCL, ballots and the regular books and records of the Corporation, except that the inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for the limited purpose permitted herein, the inspectors at the time they make their certification pursuant to Section 231(b)(5) of the DGCL shall specify the precise information considered by them including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is accurate and reliable.
SECTION 4.
DIRECTORS
Section 4.1 Number. The authorized number of directors of the Corporation shall be fixed in accordance with the Certificate of Incorporation.
Section 4.2 Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as may be otherwise provided by the Certificate of Incorporation or the DGCL.
Section 4.3 Terms. The terms of directors shall be as set forth in the Certificate of Incorporation.
Section 4.4 Vacancies; Newly Created Directorships. Vacancies and newly created directorships on the Board shall be filled as set forth in the Certificate of Incorporation, except as otherwise required by applicable law.
Section 4.5 Resignation. Any director may resign at any time by delivering such director’s notice in writing or by electronic transmission to the Board or the Secretary. Such resignation shall take effect at
the time of delivery of the notice or at any later time specified therein. Acceptance of such resignation shall not be necessary to make it effective. When one or more directors shall resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office for the unexpired portion of the term of the director whose place shall be vacated and until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation or removal.
Section 4.6 Removal. Directors shall be removed as set forth in the Certificate of Incorporation.
Section 4.7 Meetings.
(a) Regular Meetings. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board may be held at any time or date and at any place, if any, within or outside of the State of Delaware that has been designated by the Board and publicized among all directors, either orally or in writing, by telephone, including a voice-messaging system or other system designed to record and communicate messages, facsimile or by electronic mail or other electronic means. No further notice shall be required for regular meetings of the Board.
(b) Special Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board may be held at any time and place, if any, within or without the State of Delaware as designated and called by the Chairperson of the Board, the Chief Executive Officer or by a majority of the directors then in office.
(c) Meetings by Electronic Communications Equipment. Any member of the Board, or of any committee thereof, may participate in a meeting by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
(d) Notice of Special Meetings. Notice of the time and place, if any, of all special meetings of the Board shall be given orally or in writing, by telephone, including a voice messaging system or other system or technology designed to record and communicate messages, or by electronic mail or other means of electronic transmission at least 24 hours before the date and time of the meeting. If notice is sent by U.S. mail, it shall be sent by first class mail, postage prepaid, at least three days before the date of the meeting. Neither the business to be transacted at, nor the purpose of, any special meeting of the Board need be specified in any such notice.
Section 4.8 Quorum and Voting.
(a) Except as otherwise required by the DGCL, the Certificate of Incorporation or the Bylaws, a quorum of the Board shall consist of a majority of the authorized number of directors fixed from time to time by the Board in accordance with the Certificate of Incorporation; provided, however, at any meeting whether a quorum be present or otherwise, a majority of the directors present may adjourn the meeting to another time, without notice other than by announcement at the meeting.
(b) At each meeting of the Board at which a quorum is present, all questions and business shall be determined by the affirmative vote of a majority of the directors present, unless a different vote be required by applicable law, the Certificate of Incorporation or the Bylaws.
Section 4.9 Action without Meeting. Unless otherwise restricted by the Certificate of Incorporation or the Bylaws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission. After an action is taken, such consent or consents shall be filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 4.10 Fees and Compensation. Unless otherwise restricted by the Certificate of Incorporation or the Bylaws, the Board, or any duly authorized committee thereof, shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity.
Section 4.11 Committees.
(a) Committees. The Board may, from time to time, appoint such committees as may be permitted by applicable law. Such committees appointed by the Board shall consist of one or more members of the Board and to the extent permitted by applicable law and provided in the resolution of the Board shall have and may exercise all the powers and authority of the Board 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 that may require it; but no such committee shall have the power or authority in reference to (i) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopting, amending or repealing any Bylaw of the Corporation.
(b) Term. The Board, subject to any requirements of any outstanding series of preferred stock and the provisions of subsection (a) of this Section 4.11, may at any time increase or decrease the number of members of a committee or terminate the existence of a committee. The membership of a committee member shall terminate on the date of such committee member’s death, such person’s resignation from the committee or on such date that the committee member, for any reason, is no longer a member of the Board. The Board may at any time for any reason remove any individual committee member and the Board may fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee. The Board 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, and, in addition, in the absence or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.
(c) Meetings. Unless the Board shall otherwise provide, regular meetings of any committee appointed pursuant to this Section 4.11 shall be held at such times and places, if any, as are determined by the Board, or by any such committee, and when notice thereof has been given to each member of such committee, no further notice of such regular meetings need be given thereafter. Special meetings of any such committee may be held at such place, if any, that has been determined from time to time by such committee, and may be called by any director who is a member of such committee, upon notice to the members of such committee of the time and place, if any, of such special meeting given in the manner provided for the giving of notice to members of the Board of the time and place, if any, of special meetings of the Board. Unless otherwise provided by the Board in the resolutions authorizing the creation of the committee, the presence of at least a majority of the members of the committee then
serving shall be necessary to constitute a quorum unless the committee shall consist of one or two members, in which event one member shall constitute a quorum; and all matters shall be determined by the affirmative vote of a majority of the members present at a meeting of the committee at which a quorum is present.
Section 4.12 Duties of Chairperson of the Board. The Board shall elect from its ranks a Chairperson of the Board. The Chairperson of the Board shall perform such other duties customarily associated with the office and shall also perform such other duties and have such other powers, as the Board shall designate from time to time. The Chairperson of the Board, when present, shall preside at all meetings of the Board in accordance with Section 4.13 of the Bylaws.
Section 4.13 Organization. At every meeting of the directors, the Chairperson of the Board shall act as chairperson of the meeting. If a Chairperson has not been appointed or is absent, the Chief Executive Officer (if a director), or, if no Chief Executive Officer is then serving or the Chief Executive Officer is absent, the President (if a director), or, in the absence of any such person, a chairperson of the meeting chosen by a majority of the directors present, shall preside over the meeting. The Secretary, or in the Secretary’s absence, any Assistant Secretary or other officer, director or other person directed to do so by the person presiding over the meeting, shall act as secretary of the meeting.
SECTION 5.
OFFICERS
Section 5.1 Officers Designated. The officers of the Corporation shall include, if and when designated by the Board, the Chief Executive Officer, the President, the Secretary and the Treasurer. The Board may also appoint one or more Assistant Secretaries and Assistant Treasurers and such other officers and agents with such powers and duties as it shall deem appropriate or necessary. The Board may assign such additional titles to one or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the Corporation at any one time unless specifically prohibited therefrom by applicable law, the Certificate of Incorporation or the Bylaws.
Section 5.2 Tenure and Duties of Officers.
(a) General. All officers shall hold office at the pleasure of the Board and until their successors shall have been duly elected and qualified, subject to such officer’s earlier death, resignation or removal. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board or by a committee thereof to which the Board has delegated such responsibility.
(b) Duties of Chief Executive Officer. The Chief Executive Officer shall preside, if a director, at all meetings of the Board, unless a Chairperson of the Board has been appointed and is present thereat. The Chief Executive Officer shall be the chief executive officer of the Corporation and, subject to the supervision, direction and control of the Board, shall have the general powers and duties of supervision, direction, management and control of the business and officers of the Corporation as are customarily associated with the position of Chief Executive Officer. To the extent that a Chief Executive Officer has been appointed and no President has been appointed, all references in the Bylaws to the President shall be deemed references to the Chief Executive Officer. The Chief Executive Officer shall perform other duties customarily associated with the office and shall also perform such other duties and have such other powers, as the Board shall designate from time to time.
(c) Duties of President. The President shall preside, if a director, at all meetings of the Board, unless a Chairperson of the Board or Chief Executive Officer has been appointed and is present and willing to act. Unless another officer has been appointed Chief Executive Officer of the Corporation, the President shall be the chief executive officer of the Corporation and, subject to the supervision, direction and control of the Board, shall have the general powers and duties of supervision, direction, management and control of the business and officers of the Corporation as are customarily associated with the position of chief executive officer. The President shall perform other duties customarily associated with the office and shall also perform such other duties and have such other powers, as the Board (or the Chief Executive Officer, if the Chief Executive Officer and President are not the same person and the Board has delegated the designation of the President’s duties to the Chief Executive Officer) shall designate from time to time.
(d) Duties of Secretary and Assistant Secretary. The Secretary shall attend all meetings of the stockholders and of the Board and shall record, or cause to be recorded, all acts, votes and proceedings thereof in the minute books of the Corporation. The Secretary shall give, or cause to be given, notice in conformity with the Bylaws of all meetings of the stockholders and of all meetings of the Board and any committee thereof requiring notice. The Secretary shall perform all other duties provided for in the Bylaws and other duties customarily associated with the office and shall also perform such other duties and have such other powers, as the Board or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President shall designate from time to time. The Chief Executive Officer, or if no Chief Executive Officer is then serving, the President may direct any Assistant Secretary or other officer to assume and perform the duties of the Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall perform other duties customarily associated with the office and shall also perform such other duties and have such other powers as the Board or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President shall designate from time to time.
(e) Duties of Treasurer and Assistant Treasurer. The Treasurer shall keep or cause to be kept the books of account of the Corporation in a thorough and proper manner and shall render statements of the financial affairs of the Corporation in such form and as often as required by the Board, the Chief Executive Officer or the President. The Treasurer, subject to the order of the Board, shall have the custody of all funds and securities of the Corporation. The Treasurer shall perform other duties customarily associated with the office and shall also perform such other duties and have such other powers as the Board or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President shall designate from time to time. The Chief Executive Officer, or if no Chief Executive Officer is then serving, the President may direct any Assistant Treasurer or other officer to assume and perform the duties of the Treasurer in the absence or disability of the Treasurer, and each Assistant Treasurer shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board or the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President shall designate from time to time.
Section 5.3 Delegation of Authority. The Board may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof.
Section 5.4 Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board, the Chairperson of the Board, the Chief Executive Officer, the President or the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of the Corporation under any contract with the resigning officer.
Section 5.5 Contracts and Other Documents. The Chief Executive Officer, or such other officer or officers as may from time to time be authorized by the Board or any other committee given specific authority in the premises by the Board of Directors during the intervals between the meetings of the Board, shall have power to sign and execute on behalf of the Corporation deeds, conveyances and contracts, and any and all other documents requiring execution by the Corporation.
Section 5.6 Removal. Any officer may be removed from office at any time, either with or without cause, by the Board, or by any duly authorized committee thereof or any officer upon whom such power of removal may have been conferred by the Board.
SECTION 6.
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION
Section 6.1 Execution of Corporate Instruments. The Board may, in its discretion, determine the method and designate the signatory officer or officers, or other person or persons, to execute, sign or endorse on behalf of the Corporation any corporate instrument or document, or to sign on behalf of the Corporation the corporate name without limitation, or to enter into contracts on behalf of the Corporation, except where otherwise provided by applicable law or the Bylaws, and such execution or signature shall be binding upon the Corporation.
(a) All checks and drafts drawn on banks or other depositaries on funds to the credit of the Corporation or in special accounts of the Corporation shall be signed by such person or persons as the Board shall from time to time authorize so to do.
(b) Unless otherwise specifically determined by the Board or otherwise required by applicable law, the execution, signing or endorsement of any corporate instrument or document by or on behalf of the Corporation may be effected manually, by facsimile or (to the extent not prohibited by applicable law and subject to such policies and procedures as the Corporation may have in effect from time to time) by electronic signature.
(c) Unless authorized or ratified by the Board or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
Section 6.2 Voting of Securities Owned by the Corporation. All stock and other securities of or interests in other corporations or entities owned or held by the Corporation for itself, or for other parties in any capacity, shall be voted, and all proxies and consents with respect thereto shall be executed, by the person authorized so to do by resolution of the Board, or, in the absence of such authorization, by the Chairperson of the Board, the Chief Executive Officer, or the President.
SECTION 7.
SHARES OF STOCK
Section 7.1 Form and Execution of Certificates. The shares of the Corporation shall be represented by certificates, or shall be uncertificated if so provided by resolution or resolutions of the Board. Certificates for the shares of stock of the Corporation, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Certificates for shares of stock shall note
conspicuously that the Corporation is a public benefit corporation formed pursuant to Subchapter XV of the DGCL. Any notice given by the Corporation pursuant to Section 151(f) of the DGCL upon the issuance or transfer of uncertificated shares shall state conspicuously that the Corporation is a public benefit corporation formed pursuant to Subchapter XV of the DGCL. Every holder of stock in the Corporation represented by certificates shall be entitled to have a certificate signed by or in the name of the Corporation by any two authorized officers of the Corporation (including, without limitation, the Chairperson of the Board, the Chief Executive Officer, the President, the Treasurer, any Assistant Treasurer, the Secretary and any Assistant Secretary), certifying the number, and the class or series, of shares owned by such holder in the Corporation in certificated form. Any or all of the signatures on the certificate may be facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.
Section 7.2 Lost Certificates. The Corporation may issue a new certificate or certificates or uncertificated shares in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. The Corporation may require, as a condition precedent to the issuance of a new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or certificates, or the owner’s legal representative, to give the Corporation a bond (or other adequate security) sufficient to indemnify the Corporation against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen, or destroyed or the issuance of such new certificate(s) or uncertificated shares.
Section 7.3 Transfers.
(a) Transfers of record of shares of stock of the Corporation shall be made only upon its books by the holders thereof, in person or by attorney duly authorized, and, in the case of stock represented by certificate, upon the surrender of a properly endorsed certificate or certificates for a like number of shares.
(b) The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes or series of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes or series owned by such stockholders in any manner not prohibited by the DGCL.
Section 7.4 Fixing Record Dates.
(a) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, subject to applicable law, not be more than 60 nor less than ten days before the date of such meeting. If the Board so fixes a record date for determining the stockholders entitled to notice of any meeting of stockholders, such date shall also be the record date for determining the stockholders entitled to vote at such meeting, unless the Board determines, at the time it fixes the record date for determining the stockholders entitled to notice of such meeting, that a later date on or before the date of the meeting shall be the record date for determining the stockholders entitled to vote at such meeting. If no record date is fixed by the Board, 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. 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 may fix a new record date for determining the stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determining the stockholders entitled to vote in accordance with the provisions of this Section 7.4(a).
(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating to such action.
Section 7.5 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
Section 7.6 Additional Powers of the Board. In addition to, and without limiting, the powers set forth in the Bylaws, the Board shall have power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock, subject to the provisions of the DGCL, other applicable law, the Certificate of Incorporation and the Bylaws. The Board may appoint and remove transfer agents and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/or any such registrar of transfers.
SECTION 8.
OTHER SECURITIES OF THE CORPORATION
Section 8.1 Execution of Other Securities. All bonds, debentures and other corporate securities of the Corporation, other than stock certificates (covered in Section 7.1), may be signed by the Chairperson of the Board, the Chief Executive Officer, or the President, or such other person as may be authorized by the Board; provided, however, that where any such bond, debenture or other corporate security shall be authenticated by the manual signature, or where permissible facsimile signature, of a trustee under an indenture pursuant to which such bond, debenture or other corporate security shall be issued, the signatures of the persons signing and attesting the corporate seal on such bond, debenture or other corporate security may be the imprinted facsimile of the signatures of such persons. Interest coupons appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as aforesaid, shall be signed by the Treasurer or an Assistant Treasurer of the Corporation or such other person as may be authorized by the Board, or bear imprinted thereon the facsimile signature of such person. In case any officer who shall have signed or attested any bond, debenture or other corporate security, or whose facsimile signature shall appear thereon or on any such interest coupon, shall have ceased to be such officer before the bond, debenture or other corporate security so signed or attested shall have been delivered, such bond, debenture or other corporate security nevertheless may be adopted by the
Corporation and issued and delivered as though the person who signed the same or whose facsimile signature shall have been used thereon had not ceased to be such officer of the Corporation.
SECTION 9.
DIVIDENDS
Section 9.1 Declaration of Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation and applicable law, if any, may be declared by the Board. Dividends may be paid in cash, in property, or in shares of capital stock or other securities of the Corporation, subject to the provisions of the Certificate of Incorporation and applicable law.
Section 9.2 Dividend Reserve. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board from time to time, in its absolute discretion, determines proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose or purposes as the Board shall determine to be conducive to the interests of the Corporation, and the Board may modify or abolish any such reserve in the manner in which it was created.
SECTION 10.
FISCAL YEAR
Section 10.1 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board and may be changed by the Board.
SECTION 11.
INDEMNIFICATION
Section 11.1 Indemnification of Directors, Officers, Employees and Other Agents.
(a) Directors and Officers. The Corporation shall indemnify to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), any person who was or is made or is threatened to be made a party or is otherwise involved in a Proceeding, by reason of the fact that such person is or was a director or officer of the Corporation, or while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, whether the basis of such Proceeding is alleged action in an official capacity as a director or officer or in any other capacity while serving as a director or officer, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in connection therewith; provided, however, that the Corporation will not be required to indemnify or advance expenses to any director or officer in connection with any Proceeding (or part thereof) initiated by such person unless (i) the Proceeding (or part thereof) was authorized by the Board or (ii) the Proceeding (or part thereof) is initiated to enforce rights to indemnification or advancement of expenses as provided under subsection (d) of this Section 11.1 or is a compulsory counterclaim brought by such person.
Any reference to an officer of the Corporation in this Section 11.1 shall be deemed to refer exclusively to the Chief Executive Officer, President, Secretary, Treasurer and any other officer of the Corporation appointed by the Board pursuant to Section 5 of these Bylaws, and any reference to an officer of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be deemed to refer exclusively to an officer appointed by the board of directors or equivalent governing body of such other entity pursuant to the certificate of incorporation and bylaws or equivalent organizational documents of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The fact that any person who is or was an employee of the Corporation or an employee of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, but not an officer thereof as described in the preceding sentence, has been given or has used the title of “Vice President” or any other title that could be construed to suggest or imply that such person is or may be such an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall not result in such person being constituted as, or being deemed to be, such an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise for purposes of this Section 11.1.
(b) Employees and Other Agents. The Corporation shall have power to indemnify and advance expenses to its employees and other agents to the fullest extent permitted by the DGCL.
(c) Expenses. The Corporation shall advance to any current or former director or officer of the Corporation, or to any person, who while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, prior to the final disposition of the Proceeding, promptly following request therefor, all expenses incurred by such person in defending (or participating as a witness in) any Proceeding referred to in Section 11.1(a), or in connection with a Proceeding (or part thereof) brought to establish or enforce a right to indemnification or advancement of expenses under subsection (d) of this Section 11.1, provided, however, that any advancement of expenses incurred by a current or former director or officer will be made only upon delivery to the Corporation of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it is ultimately determined by final judicial decision from which there is no further right to appeal that such indemnitee is not entitled to be indemnified or entitled to advancement for such expenses under this Section 11.1 or otherwise.
(d) Enforcement. Without the necessity of entering into an express contract, all rights to indemnification and advances to current and former directors and officers under this Section 11.1 will be deemed to be contractual rights and be effective to the same extent and as if provided for in a contract between the Corporation and such director or officer. Any right to indemnification or advancement of expenses granted by this Section 11.1 to a current or former director or officer will be enforceable by or on behalf of the person holding such right in any court of competent jurisdiction if
(i) the claim for indemnification or advancement of expenses is denied, in whole or in part,
(ii) no disposition of a claim for indemnification is made within 60 days of request therefor, or
(iii) no disposition of a claim for an advance is made within 30 days of request therefor.
The indemnitee in such enforcement action, if successful in whole or in part, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, will
be entitled to be paid also the expense of prosecuting or defending the claim to the fullest extent permitted by the DGCL.
In (i) any suit brought to enforce a right to indemnification hereunder (but not in a suit brought to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) 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 its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the indemnitee is proper in the circumstances because such person has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its Board, independent legal counsel or its stockholders) that the indemnitee has not met such applicable standard of conduct, will be a defense to the action or create a presumption that the indemnitee has not met the applicable standard of conduct. In any suit brought by a current or former director or officer 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 director or officer is not entitled to be indemnified, or to such advancement of expenses, under this Section 11.1 or otherwise is on the Corporation.
(e) Non-Exclusivity of Rights. The rights conferred on any person by this Section 11.1 are not exclusive of any other right that such person may have or hereafter acquire under any applicable law, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding office. 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.
(f) Survival of Rights. The rights conferred on any person by this Section 11.1 will continue as to a person who has ceased to be a director or officer and will inure to the benefit of the heirs, executors and administrators of such a person.
(g) Insurance. To the fullest extent permitted by the DGCL, the Corporation may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this Section 11.1.
(h) Amendments. Any repeal or modification of this Section 11.1 is only prospective and does not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any Proceeding against any current or former director or officer of the Corporation.
(i) Saving Clause. If this Section 11 or any portion hereof is invalidated on any ground by any court of competent jurisdiction, then the Corporation will nevertheless indemnify and advance expenses to each director and officer to the full extent not prohibited by any applicable portion of this Section 11 that has not been invalidated, or by any applicable law. If this Section 11 is invalid due to the application of the indemnification and advancement provisions of another jurisdiction, then the Corporation will indemnify and advance expenses to each director and officer to the full extent under applicable law.
(j) Certain Definitions. For the purposes of this Section 11, the following definitions apply:
(1) The term “Proceeding” is to be broadly construed and includes, without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative.
(2) The term “expenses” is to be broadly construed and includes, without limitation, court costs, attorneys’ fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in connection with any proceeding.
(3) The term the “Corporation” includes, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger that, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, stands in the same position under the provisions of this Section 11 with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
(4) References to “fines” include any excise taxes assessed on a person with respect to an employee benefit plan.
SECTION 12.
NOTICES
Section 12.1 Notices.
(a) Notice to Stockholders. Notice to stockholders of stockholder meetings shall be given as provided in Section 3.4. Without limiting the manner by which notice may otherwise be given effectively to stockholders under any agreement or contract with such stockholder, and except as otherwise required by applicable law, notice to stockholders for purposes other than stockholder meetings may be sent by U.S. mail or courier service, facsimile or by electronic mail or other means of electronic transmission in accordance with Section 232 of the DGCL.
(b) Notice to Directors. Any notice required to be given to any director may be given by the method stated in subsection (a) or as otherwise provided in the Bylaws, with notice other than one that is delivered personally to be sent to such address or electronic mail address as such director shall have filed in writing with the Secretary, or, in the absence of such filing, to the last known address or electronic mail address of such director.
(c) Affidavit of Mailing. An affidavit of notice, executed by a duly authorized and competent employee of the Corporation or its transfer agent appointed with respect to the class of stock affected, or other agent, specifying the name and address or the names and addresses of the stockholder or stockholders, or director or directors, to whom any such notice or notices was or were given, and the time and method of giving the same, shall in the absence of fraud, be prima facie evidence of the facts therein contained.
(d) Methods of Notice. It shall not be necessary that the same method of giving notice be employed in respect of all recipients of notice, but one permissible method may be employed in respect of any one or more, and any other permissible method or methods may be employed in respect of any other or others.
(e) Notice to Person with Whom Communication is Unlawful. Whenever notice is required to be given, under applicable law or any provision of the Certificate of Incorporation or Bylaws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate under any provision of the DGCL, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
(f) Notice to Stockholders Sharing an Address. Except as otherwise prohibited under the DGCL, any notice given under the provisions of the DGCL, the Certificate of Incorporation or the 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. Such consent shall have been deemed to have been given if such stockholder fails to object in writing to the Corporation within 60 days of having been given notice by the Corporation of its intention to send the single notice. Any consent shall be revocable by the stockholder by written notice to the Corporation.
(g) Waiver. Whenever notice is required to be given under any provision of the DGCL, the Certificate of Incorporation or the 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, shall be deemed equivalent to notice. 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 regular or special 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 unless so required by the Certificate of Incorporation or the Bylaws.
SECTION 13.
AMENDMENTS
Section 13.1 Amendments. Subject to the limitations set forth in Section 11.1(h) or the Certificate of Incorporation, the Board is expressly empowered to adopt, amend or repeal the Bylaws of the Corporation. The stockholders also shall have power to adopt, amend or repeal the Bylaws of the Corporation; provided, however, that, in addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by the Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock (as defined in the Certificate of Incorporation)), such action by stockholders shall require the affirmative vote of the holders of at least 66-2/3% of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote thereon, voting together as a single class.
SECTION 14.
PUBLIC BENEFIT CORPORATION PROVISIONS
Section 14.1 Required Statement in Stockholder Meeting Notice. The Corporation shall include in every notice of a meeting of stockholders a statement to the effect that it is a public benefit corporation under Subsection XV of the DGCL.
Section 14.2 Periodic Statements. The Corporation shall no less than biennially provide the stockholders with a statement as to the Corporation’s promotion of the public benefit or public benefits identified in the Certificate of Incorporation and of the best interests of those materially affected by the Corporation’s conduct. The statement shall include: (i) the objectives the Board of Directors has established to promote such public benefit or public benefits and interests; (ii) the standards the Board of Directors has adopted to measure the Corporation’s progress in promoting such public benefit or public benefits and interests; (iii) objective factual information based on those standards regarding the Corporation’s success in meeting the objectives for promoting such public benefit or public benefits and interests; and (iv) an assessment of the Corporation’s success in meeting the objectives and promoting such public benefit or public benefits and interests.
HAWKEYE 360, INC.
SIXTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT
THIS SIXTH AMENDED AND RESTATED INVESTORS’ RIGHTS AGREEMENT (this “Agreement”), is made as of December 18, 2025, by and among HAWKEYE 360, INC., a Delaware corporation (the “Company”), and the investors listed on SCHEDULE A to this Agreement (the “Investors”).
RECITALS
WHEREAS, certain of the Investors (the “Existing Investors”) hold shares of the Company’s Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series D-1 Preferred stock and/or Common Stock issued upon conversion thereof and possess registration rights, information rights, rights of first offer and other rights pursuant to a Fifth Amended and Restated Investors’ Rights Agreement, dated as of July 7, 2023, between the Company and such Investors (as amended, the “Prior Agreement”);
WHEREAS, Existing Investors comprising the Requisite Holders (as defined in the Prior Agreement) desire to amend and restate the Prior Agreement in its entirety and to accept the rights created pursuant to this Agreement in lieu of the rights granted to them under the Prior Agreement; and
WHEREAS, certain of the Investors are parties to that certain Series E Preferred Stock Purchase Agreement of even date herewith between the Company and such Investors (the “Series E Purchase Agreement”), under which certain of the Company’s and such Investors’ obligations are conditioned upon the execution and delivery of this Agreement by such Investors, the Existing Investors and the Company.
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. Definitions. For purposes of this Agreement:
1.1 “Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including without limitation any general partner, managing member, officer or director of such Person or any venture capital fund, growth equity fund, private equity fund or similar investment vehicle now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.
1.2 “[Investor 1]” means, collectively, [***].
1.3 “Board” means the board of directors of the Company.
1.4 “Common Stock” means shares of the Company’s common stock, par value $0.0001 per share.
1.5 “Competitor” means a Person engaged, directly or indirectly, including through any partnership, limited liability company, corporation, joint venture or similar arrangement whether now existing or formed hereafter, in a business that is competitive with the business(es) of the Company and its subsidiaries and involves developing or maintaining a mapping and analytics system to detect, identify,
and geo-locate radio frequency spectrum, but shall not include any Person that, together with its Affiliates, holds less than ten percent (10%) of the outstanding equity of any Competitor and does not, nor do any of its Affiliates, have a right to designate any members of the board of directors of any Competitor; provided that [Investor 7] (as defined below) and the New Money Series E Lead Investor (as defined below) shall not be deemed a Competitor.
1.6 “Damages” means any loss, damage, claim or liability (joint or several) to which a party hereto may become subject under the Securities Act, the Exchange Act, or other federal or state law, insofar as such loss, damage, claim or liability (or any action in respect thereof) arises out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact contained in any registration statement of the Company, including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto; (ii) an omission or alleged omission to state therein a material fact required to be stated therein, or necessary to make the statements therein not misleading; or (iii) any violation or alleged violation by the indemnifying party (or any of its agents or Affiliates) of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.
1.7 “Deemed Liquidation Event” shall have the meaning ascribed to it in the Restated Certificate.
1.8 “Derivative Securities” means any securities or rights convertible into, or exercisable or exchangeable for (in each case, directly or indirectly), Common Stock, including options and warrants.
1.9 “DPA” means Section 721 of the Defense Production Act, as amended, including all implementing regulations thereof.
1.10 “DPA Triggering Rights” means (i) “control” (as defined in the DPA); (ii) access to any “material non-public technical information” (as defined in the DPA) in the possession of the Company; (iii) membership or observer rights on the Board of Directors or equivalent governing body of the Company or the right to nominate an individual to a position on the Board of Directors or equivalent governing body of the Company; (iv) any involvement, other than through the voting of shares, in substantive decision-making of the Company regarding (x) the use, development, acquisition or release of any Company “critical technology” (as defined in the DPA); (y) the use, development, acquisition, safekeeping, or release of “sensitive personal data” (as defined in the DPA) of U.S. citizens maintained or collected by the Company, or (z) the management, operation, manufacture, or supply of “covered investment critical infrastructure” (as defined in the DPA).
1.11 “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
1.12 “Excluded Registration” means (i) a registration relating to the sale or grant of securities to employees of the Company or a subsidiary pursuant to a stock option, stock purchase, equity incentive or similar plan; (ii) a registration relating to an SEC Rule 145 transaction; (iii) a registration on any form that does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities; or (iv) a registration in which the only Common Stock being registered is Common Stock issuable upon conversion of debt securities that are also being registered.
1.13 “Foreign Person” means either (i) a Person or government that is a “foreign person” within the meaning of the DPA; or (ii) a Person through whose investment a “foreign person” within the meaning of the DPA would obtain any DPA Triggering Rights.
1.14 “Form S-1” means such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the SEC.
1.15 “Form S-3” means such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the SEC that permits forward incorporation of substantial information by reference to other documents filed by the Company with the SEC.
1.16 “GAAP” means generally accepted accounting principles in the United States as in effect from time to time.
1.17 “Governmental Organization” means any (a) federal, state, provincial, local or other government or supra-national or public international organization; or (b) regulatory or administrative authority or agency, department, board, division, instrumentality or commission, educational agency, body, or judicial or arbitral body, tribunal, or court, industry self-regulatory authority thereof or any business, entity, or enterprise owned or controlled by any of the foregoing.
1.18 “Government Contract” means any contract or agreement in effect as of the date hereof that (i) is between the Company, on the one hand, and a Governmental Organization, on the other hand, or (ii) is entered into by the Company as a subcontractor (at any tier) necessary to the performance of a contract or agreement between another Person and a Governmental Organization.
1.19 “Holder” means any holder of Registrable Securities who is a party to this Agreement.
1.20 “Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in- law, brother-in-law, or sister-in-law, including, adoptive relationships, of a natural person referred to herein.
1.21 “Initiating Holders” means, collectively, Holders who properly initiate a registration request under this Agreement.
1.22 “[Investor 2]” means, collectively, [***].
1.23 “Investor Group” means in relation to any Investor, that Investor and its associated companies from time to time.
1.24 “IPO” means the Company’s first underwritten public offering of its Common Stock under the Securities Act, or direct listing of the Common Stock for trading on a nationally recognized exchange.
1.25 “Major Investor” means any Investor that, individually or together with such Investor’s Affiliates, holds (i) shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock and/or Series B Preferred Stock (including any shares of Common Stock issued upon conversion thereof) having an aggregate original purchase price from the Company of at least $500,000 and/or (ii) shares of Series C Preferred Stock (including any shares of Common Stock issued upon
conversion thereof) having an aggregate original purchase price from the Company of at least $2,500,000 and/or (iii) shares of Series D Preferred Stock (including any shares of Common Stock issued upon conversion thereof) having an aggregate original purchase price from the Company of at least $3,000,000 and/or (iv) shares of Series D-1 Preferred Stock (including any shares of Common Stock issued upon conversion thereof) having an aggregate original purchase price from the Company of at least $5,000,000 and/or (v) shares of Series E Preferred Stock (including any shares of Common Stock issued upon conversion thereof) having an aggregate original purchase price from the Company of at least $19,999,000.
1.26 “New Money Series E Lead Investor” has the meaning ascribed to it in the Series E Purchase Agreement.
1.27 “New Securities” means, collectively, equity securities of the Company, whether or not currently authorized, as well as rights, options, or warrants to purchase such equity securities, or securities of any type whatsoever that are, or may become, convertible or exchangeable into or exercisable for such equity securities.
1.28 “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.
1.29 “Potential Regulatory Impact” or “PRI” means a circumstance that could reasonably be expected to result in (i) a violation by the Company of U.S. Department of the Treasury Office of Foreign Assets Control sanction programs; (ii) a requirement for the Company to enter into a Special Security Agreement, Voting Trust Agreement or Proxy Agreement with the U.S. Government pursuant to the National Industrial Security Program Operating Manual (“NISPOM”), provided that the Company shall first have made commercially reasonable efforts to address any relevant U.S. Government concerns by means of a board resolution or Security Control Agreement under the NISPOM, neither of which shall constitute a PRI, provided that the Company need not take any action that would have an adverse effect on the Company or its then- current or prospective business; (iii) the loss of any permit of the Company held or required to conduct the existing or prospective business of the Company, which loss would materially impair the Company’s ability to operate its existing or prospective business which, with respect to its prospective business, the Company would likely have obtained but for the loss of such permit; (iv) the initiation of any legal proceeding or investigation against the Company by any Governmental Organization; (v) a requirement to make a filing pursuant to the DPA; or (vi) a material breach of any of the Company’s material contracts, or material impact to potential business opportunities which the Company would otherwise likely have been able to realize, with the U.S. federal government departments or agencies, either as a prime contractor or as a subcontractor.
1.30 “Preferred Stock” means, collectively, shares of the Company’s Series A- 1 Preferred Stock, Series A-2 Preferred Stock, Series A-3 Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series D-1 Preferred Stock, and Series E Preferred Stock.
1.31 “Preferred Director” means each of the Series A-1 Directors, the Series A-2 Directors, the Series C Director, the Series D Director, and the Series E Director.
1.32 “Registrable Securities” means (i) the Common Stock issuable or issued upon conversion of the Preferred Stock, (ii) any Common Stock, or any Common Stock issued or issuable (directly or indirectly) upon conversion and/or exercise of any other securities of the Company, held by the Investors as of the date hereof or acquired after the date hereof; and (iii) any Common Stock issued as
(or issuable upon the conversion or exercise of any warrant, right, or other security that is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the shares referenced in clauses (i) and (ii) above; excluding in all cases, however, any Registrable Securities sold by a Person in a transaction in which the applicable rights under this Agreement are not assigned pursuant to Subsection 6.1, and excluding for purposes of Section 2 any shares for which registration rights have terminated pursuant to Subsection 2.13 of this Agreement.
1.32 “Registrable Securities then outstanding” means, as of any time, the number of shares determined by adding the number of shares of outstanding Common Stock that are Registrable Securities and the number of shares of Common Stock issuable (directly or indirectly) pursuant to then exercisable and/or convertible securities that are Registrable Securities as of such time.
1.33 “Restricted Securities” means the securities of the Company required to be notated with the legend set forth in Subsection 2.12(b) hereof.
1.34 “Requisite Holders” means the holders of at least a majority of the Registrable Securities then outstanding.
1.35 “Restated Certificate” means the Seventh Amended and Restated Certificate of Incorporation of the Company, as amended and/or restated from time to time.
1.36 “SEC” means the Securities and Exchange Commission.
1.37 “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.
1.38 “SEC Rule 145” means Rule 145 promulgated by the SEC under the Securities Act.
1.39 “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.40 “Selling Expenses” means all underwriting discounts, selling commissions, and stock transfer taxes applicable to the sale of Registrable Securities, and fees and disbursements of counsel for any Holder, except for the fees and disbursements of the Selling Holder Counsel borne and paid by the Company as provided in Subsection 2.6.
1.41 “Series A-1 Director” means any director of the Company that the holders of record of the Series A-1 Preferred Stock are entitled to elect pursuant to the Voting Agreement and the Restated Certificate.
1.42 “Series A-1 Preferred Stock” means shares of the Company’s Series A-1 Preferred Stock, par value $0.0001 per share.
1.43 “Series A-2 Director” means any director of the Company that the holders of record of the Series A-2 Preferred Stock are entitled to elect pursuant to the Voting Agreement and the Restated Certificate.
1.44 “Series A-2 Preferred Stock” means shares of the Company’s Series A-2 Preferred Stock, par value $0.0001 per share.
1.45 “Series A-3 Preferred Stock” means shares of the Company’s Series A-3 Preferred Stock, par value $0.0001 per share.
1.46 “Series B Preferred Stock” means shares of the Company’s Series B Preferred Stock, par value $0.0001 per share.
1.47 “Series C Director” means any director of the Company that the holders of record of the Series C Preferred Stock are entitled to elect pursuant the Voting Agreement and the Restated Certificate.
1.48 “Series C Preferred Stock” means shares of the Company’s Series C Preferred Stock, par value $0.0001 per share.
1.49 “Series D Director” means any director of the Company that the holders of record of the Series D Preferred Stock are entitled to elect pursuant to the Voting Agreement and the Restated Certificate.
1.50 “Series D Preferred Stock” means shares of the Company’s Series D Preferred Stock, par value $0.0001 per share.
1.51 “Series D-1 Preferred Stock” means shares of the Company’s Series D-1 Preferred Stock, par value $0.0001 per share.
1.52 “Series E Preferred Stock” means shares of the Company’s Series E Preferred Stock, par value $0.0001 per share.
1.53 “Series E Director” means any director of the Company that the holders of record of the Series E Preferred Stock are entitled to elect pursuant to the Voting Agreement and the Restated Certificate.
1.54 “Voting Agreement” means that certain Seventh Amended and Restated Voting Agreement, dated as of the date hereof, by and among the Company and the investors and stockholders party thereto, as the same may be amended and/or restated from time to time.
2. Registration Rights. The Company covenants and agrees as follows:
2.1 Demand Registration.
(a) Form S-1 Demand. If at any time after the earlier of (i) five (5) years after the date of this Agreement and (ii) one hundred eighty (180) days after the effective date of the registration statement for the IPO or any other QPO (as defined in the Restated Certificate), the Company receives a request from the Requisite Holders that the Company file a Form S-1 registration statement with respect to at least sixty percent (60%) of the Registrable Securities then outstanding, then the Company shall (x) within ten (10) days after the date such request is given, give notice thereof (the “Demand Notice”) to all Holders other than the Initiating Holders; and (y) as soon as practicable, and in any event within sixty (60) days after the date such request is given by the Initiating Holders, file a Form S-1 registration statement under the Securities Act covering all of the Registrable Securities that the Initiating Holders requested to be registered and any additional Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to
the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsections 2.1(c) and 2.3.
(b) Form S-3 Demand. If at any time when it is eligible to use a Form S-3 registration statement, the Company receives a request from Holders of at least twenty-five percent (25%) of the Registrable Securities then outstanding that the Company file a Form S-3 registration statement with respect to outstanding Registrable Securities of such Holders having an anticipated aggregate offering price, net of Selling Expenses, of at least $1 million, then the Company shall (i) within ten (10) days after the date such request is given, give a Demand Notice to all Holders other than the Initiating Holders; and (ii) as soon as practicable, and in any event within forty-five (45) days after the date such request is given by the Initiating Holders, file a Form S-3 registration statement under the Securities Act covering all Registrable Securities requested to be included in such registration by any other Holders, as specified by notice given by each such Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each case, subject to the limitations of Subsections 2.1(c) and 2.3.
(c) Notwithstanding the foregoing obligations, if the Company furnishes to Holders requesting a registration pursuant to Subsection 2.1(a) a certificate signed by the Company’s chief executive officer stating that in the good faith judgment of the Board it would be materially detrimental to the Company and its stockholders for such registration statement to either become effective or remain effective for as long as such registration statement otherwise would be required to remain effective, because such action would (i) materially interfere with a significant acquisition, corporate reorganization, or other similar transaction involving the Company; (ii) require premature disclosure of material information that the Company has a bona fide business purpose for preserving as confidential; or (iii) render the Company unable to comply with requirements under the Securities Act or Exchange Act, then the Company shall have the right to defer taking action with respect to such filing, and any time periods with respect to filing or effectiveness thereof shall be tolled correspondingly, for a period of not more than sixty (60) days after the request of the Initiating Holders is given; provided, however, that the Company may not invoke this right more than twice in any twelve (12) month period; and provided further that the Company shall not register any securities for its own account or that of any other stockholder during such sixty (60) day period other than an Excluded Registration.
(d) The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(a) (i) during the period that is sixty (60) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is one hundred eighty (180) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; (ii) after the Company has effected two registrations pursuant to Subsection 2.1(a); or (iii) if the Initiating Holders propose to dispose of shares of Registrable Securities that may be immediately registered on Form S-3 pursuant to a request made pursuant to Subsection 2.1(b). The Company shall not be obligated to effect, or to take any action to effect, any registration pursuant to Subsection 2.1(b) (i) during the period that is thirty (30) days before the Company’s good faith estimate of the date of filing of, and ending on a date that is ninety (90) days after the effective date of, a Company-initiated registration, provided that the Company is actively employing in good faith commercially reasonable efforts to cause such registration statement to become effective; or (ii) if the Company has effected two registrations pursuant to Subsection 2.1(b) within the twelve (12) month period immediately preceding the date of such request. A registration shall not be counted as “effected” for purposes of this Subsection 2.1(d) until such time as the applicable registration statement has been declared effective by the SEC, unless the Initiating Holders withdraw their request for such registration, elect not to pay the registration expenses therefor, and forfeit their right to one demand registration
statement pursuant to Subsection 2.6, in which case such withdrawn registration statement shall be counted as “effected” for purposes of this Subsection 2.1(d).
2.2 Company Registration. If the Company proposes to register (including, for this purpose, a registration effected by the Company for stockholders other than the Holders) any of its Common Stock under the Securities Act in connection with the public offering of such securities solely for cash (other than in an Excluded Registration or the IPO), the Company shall, at such time, promptly give each Holder notice of such registration. Upon the request of each Holder given within twenty (20) days after such notice is given by the Company, the Company shall, subject to the provisions of Subsection 2.3, cause to be registered all of the Registrable Securities that each such Holder has requested to be included in such registration. The Company shall have the right to terminate or withdraw any registration initiated by it under this Subsection 2.2 before the effective date of such registration, whether or not any Holder has elected to include Registrable Securities in such registration. The expenses (other than Selling Expenses) of such withdrawn registration shall be borne by the Company in accordance with Subsection 2.6.
2.3 Underwriting Requirements.
(a) If, pursuant to Subsection 2.1, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to Subsection 2.1, and the Company shall include such information in the Demand Notice. The underwriter(s) will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Company as provided in Subsection 2.4(e)) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting. Notwithstanding any other provision of this Subsection 2.3, if the managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as nearly as practicable) to the number of Registrable Securities owned by each Holder or in such other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the number of Registrable Securities held by the Holders to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.
(b) In connection with any offering involving an underwriting of shares of the Company’s capital stock pursuant to Subsection 2.2, the Company shall not be required to include any of the Holders’ Registrable Securities in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriters in their sole discretion determine will not jeopardize the success of the offering by the Company. If the total number of securities, including Registrable Securities, requested by stockholders to be included in such offering exceeds the number of securities to be sold (other than by the Company) that the underwriters in their reasonable discretion determine is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company in their sole discretion
determine will not jeopardize the success of the offering. If the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated among the selling Holders in proportion (as nearly as practicable to) the number of Registrable Securities owned by each selling Holder or in such other proportions as shall mutually be agreed to by all such selling Holders. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares. Notwithstanding the foregoing, in no event shall (i) the number of Registrable Securities included in the offering be reduced unless all other securities (other than securities to be sold by the Company) are first entirely excluded from the offering or (ii) the number of Registrable Securities included in the offering be reduced below twenty percent (20%) of the total number of securities included in such offering, unless such offering is the IPO, in which case the selling Holders may be excluded further if the underwriters make the determination described above and no other stockholder’s securities are included in such offering. For purposes of the provision in this Subsection 2.3(b) concerning apportionment, for any selling Holder that is a partnership, limited liability company, or corporation, the partners, members, retired partners, retired members, stockholders, and Affiliates of such Holder, or the estates and Immediate Family Members of any such partners, retired partners, members, and retired members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “selling Holder,” and any pro rata reduction with respect to such “selling Holder” shall be based upon the aggregate number of Registrable Securities owned by all Persons included in such “selling Holder,” as defined in this sentence.
(c) For purposes of Subsection 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Subsection 2.3(a), fewer than a majority of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included.
2.4 Obligations of the Company. Whenever required under this Section 2 to effect the registration of any Registrable Securities, the Company shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such registration statement to become effective and, upon the request of the Requisite Holders, keep such registration statement effective for a period of up to one hundred twenty (120) days or, if earlier, until the distribution contemplated in the registration statement has been completed; provided, however, that (i) such one hundred twenty (120) day period shall be extended for a period of time equal to the period the Holder refrains, at the request of an underwriter of Common Stock (or other securities) of the Company, from selling any securities included in such registration, and (ii) in the case of any registration of Registrable Securities on Form S-3 that are intended to be offered on a continuous or delayed basis, subject to compliance with applicable SEC rules, such one hundred twenty (120) day period shall be extended for up to one hundred eighty (180) days, if necessary, to keep the registration statement effective until all such Registrable Securities are sold;
(b) prepare and file with the SEC such amendments and supplements to such registration statement, and the prospectus used in connection with such registration statement, as may be necessary to comply with the Securities Act in order to enable the disposition of all securities covered by such registration statement;
(c) furnish to the selling Holders such numbers of copies of a prospectus, including a preliminary prospectus, as required by the Securities Act, and such other documents as the Holders may reasonably request in order to facilitate their disposition of their Registrable Securities;
(d) use its commercially reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue-sky laws of such jurisdictions as shall be reasonably requested by the selling Holders; provided that the Company shall not be required to qualify to do business or to file a general consent to service of process in any such states or jurisdictions, unless the Company is already subject to service in such jurisdiction and except as may be required by the Securities Act;
(e) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the underwriter(s) of such offering;
(f) use its commercially reasonable efforts to cause all such Registrable Securities covered by such registration statement to be listed on a national securities exchange or trading system and each securities exchange and trading system (if any) on which similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all Registrable Securities registered pursuant to this Agreement and provide a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration;
(h) promptly make available for inspection by the selling Holders, any managing underwriter(s) participating in any disposition pursuant to such registration statement, and any attorney or accountant or other agent retained by any such underwriter or selected by the selling Holders, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent, in each case, as necessary or advisable to verify the accuracy of the information in such registration statement and to conduct appropriate due diligence in connection therewith;
(i) notify each selling Holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed; and
(j) after such registration statement becomes effective, notify each selling Holder of any request by the SEC that the Company amend or supplement such registration statement or prospectus.
In addition, the Company shall ensure that, at all times after any registration statement covering a public offering of securities of the Company under the Securities Act shall have become effective, its insider trading policy shall provide that the Company’s directors may implement a trading program under Rule 10b5-1 of the Exchange Act.
2.5 Furnish Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 2 with respect to the Registrable Securities of any selling Holder that such Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of such securities as is reasonably required to effect the registration of such Holder’s Registrable Securities.
2.6 Expenses of Registration. All expenses (other than Selling Expenses) incurred in connection with registrations, filings, or qualifications pursuant to Section 2, including all registration, filing, and qualification fees; printers’ and accounting fees; fees and disbursements of counsel for the Company; and the reasonable fees and disbursements, not to exceed $50,000 per registration, of one counsel for the selling Holders selected by the Requisite Holders and the reasonable fees (each, “Selling Holder Counsel”), shall be borne and paid by the Company; provided, however, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to Subsection 2.1 if the registration request is subsequently withdrawn at the request of the Requisite Holders (in which case all selling Holders shall bear such expenses pro rata based upon the number of Registrable Securities that were to be included in the withdrawn registration), unless the Requisite Holders agree to forfeit their right to one registration pursuant to Subsections 2.1(a) or 2.1(b), as the case may be; provided further that if, at the time of such withdrawal, the Holders shall have learned of a material adverse change in the condition, business, or prospects of the Company from that known to the Holders at the time of their request and have withdrawn the request with reasonable promptness after learning of such information then the Holders shall not be required to pay any of such expenses and shall not forfeit their right to one registration pursuant to Subsections 2.1(a) or 2.1(b). All Selling Expenses relating to Registrable Securities registered pursuant to this Section 2 shall be borne and paid by the Holders pro rata on the basis of the number of Registrable Securities registered on their behalf.
2.7 Delay of Registration. No Holder shall have any right to obtain or seek an injunction restraining or otherwise delaying any registration pursuant to this Agreement as the result of any controversy that might arise with respect to the interpretation or implementation of this Section 2.
2.8 Indemnification. If any Registrable Securities are included in a registration statement under this Section 2:
(a) To the extent permitted by law, the Company will indemnify and hold harmless each selling Holder, and the partners, members, officers, directors, and stockholders of each such Holder; legal counsel, accountants and investment advisors for each such Holder; any underwriter (as defined in the Securities Act) for each such Holder; and each Person, if any, who controls such Holder or underwriter within the meaning of the Securities Act or the Exchange Act, against any Damages, and the Company will pay to each such Holder, underwriter, controlling Person, or other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Subsection 2.8(a) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the extent that they arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of any such Holder, underwriter, controlling Person, or other aforementioned Person expressly for use in connection with such registration.
(b) To the extent permitted by law, each selling Holder, severally and not jointly, will indemnify and hold harmless the Company, and each of its directors, each of its officers who has signed the registration statement, each Person (if any), who controls the Company within the meaning of the Securities Act, legal counsel and accountants for the Company, any underwriter (as defined in the
Securities Act), any other Holder selling securities in such registration statement, and any controlling Person of any such underwriter or other Holder, against any Damages, in each case only to the extent that such Damages arise out of or are based upon actions or omissions made in reliance upon and in conformity with written information furnished by or on behalf of such selling Holder expressly for use in connection with such registration; and each such selling Holder will pay to the Company and each other aforementioned Person any legal or other expenses reasonably incurred thereby in connection with investigating or defending any claim or proceeding from which Damages may result, as such expenses are incurred; provided, however, that the indemnity agreement contained in this Subsection 2.8(b) shall not apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected without the consent of the Holder, which consent shall not be unreasonably withheld; and provided further that in no event shall the aggregate amounts payable by any Holder by way of indemnity or contribution under Subsections 2.8(b) and 2.8(d) exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of fraud or willful misconduct by such Holder.
(c) Promptly after receipt by an indemnified party under this Subsection 2.8 of notice of the commencement of any action (including any governmental action) for which a party may be entitled to indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Subsection 2.8, give the indemnifying party notice of the commencement thereof. The indemnifying party shall have the right to participate in such action and, to the extent the indemnifying party so desires, participate jointly with any other indemnifying party to which notice has been given, and to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party (together with all other indemnified parties that may be represented without conflict by one counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such action. The failure to give notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Subsection 2.8, to the extent that such failure materially prejudices the indemnifying party’s ability to defend such action. The failure to give notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party otherwise than under this Subsection 2.8.
(d) To provide for just and equitable contribution to joint liability under the Securities Act in any case in which either: (i) any party otherwise entitled to indemnification hereunder makes a claim for indemnification pursuant to this Subsection 2.8 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case, notwithstanding the fact that this Subsection 2.8 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any party hereto for which indemnification is provided under this Subsection 2.8, then, and in each such case, such parties will contribute to the aggregate losses, claims, damages, liabilities, or expenses to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of each of the indemnifying party and the indemnified party in connection with the statements, omissions, or other actions that resulted in such loss, claim, damage, liability, or expense, as well as to reflect any other relevant equitable considerations. The relative fault of the indemnifying party and of the indemnified party shall be determined by reference to, among other things, whether the untrue or allegedly untrue statement of a material fact, or the omission or alleged omission of a material fact, relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission;
provided, however, that, in any such case (x) no Holder will be required to contribute any amount in excess of the public offering price of all such Registrable Securities offered and sold by such Holder pursuant to such registration statement, and (y) no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and provided further that in no event shall a Holder’s liability pursuant to this Subsection 2.8(d), when combined with the amounts paid or payable by such Holder pursuant to Subsection 2.8(b), exceed the proceeds from the offering received by such Holder (net of any Selling Expenses paid by such Holder), except in the case of willful misconduct or fraud by such Holder.
(e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are in conflict with the foregoing provisions, the provisions in the underwriting agreement shall control.
(f) Unless otherwise superseded by an underwriting agreement entered into in connection with the underwritten public offering, the obligations of the Company and Holders under this Subsection 2.8 shall survive the completion of any offering of Registrable Securities in a registration under this Section 2, and otherwise shall survive the termination of this Agreement.
2.9 Reports Under Exchange Act. With a view to making available to the Holders the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit a Holder to sell securities of the Company to the public without registration or pursuant to a registration on Form S-3, the Company shall:
(a) make and keep available adequate current public information, as those terms are understood and defined in SEC Rule 144, at all times after the effective date of the registration statement filed by the Company for the IPO;
(b) use commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act (at any time after the Company has become subject to such reporting requirements); and
(c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith upon request (i) to the extent accurate, a written statement by the Company that it has complied with the reporting requirements of SEC Rule 144 (at any time after ninety (90) days after the effective date of the registration statement filed by the Company for the IPO), the Securities Act, and the Exchange Act (at any time after the Company has become subject to such reporting requirements), or that it qualifies as a registrant whose securities may be resold pursuant to Form S-3 (at any time after the Company so qualifies); and (ii) such other information as may be reasonably requested in availing any Holder of any rule or regulation of the SEC that permits the selling of any such securities without registration (at any time after the Company has become subject to the reporting requirements under the Exchange Act) or pursuant to Form S-3 (at any time after the Company so qualifies to use such form).
2.10 Limitations on Subsequent Registration Rights. From and after the date of this Agreement, the Company shall not, without the prior written consent of the Requisite Holders, enter into any agreement with any holder or prospective holder of any securities of the Company that (i) would allow such holder or prospective holder (i) to include such securities in any registration unless, under the terms of such agreement, such holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of such securities will not reduce the number of the Registrable Securities of the Holders that are included; or (ii) allow such holder or prospective holder to initiate a demand for registration of any securities held by such holder or prospective holder; provided that this limitation shall not apply to any additional Investor, if any, who becomes a party to this Agreement in accordance with Subsection 6.9.
2.11 “Market Stand-off” Agreement. Each Holder, to the extent permitted by all applicable laws and regulations, hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the registration by the Company of shares of its Common Stock or any other equity securities under the Securities Act on a registration statement on Form S-1, and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (180) days, or such other period as may be requested by the Company or an underwriter to accommodate regulatory restrictions on (1) the publication or other distribution of research reports, and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in applicable FINRA rules, or any successor provisions or amendments thereto), (i) lend; offer; pledge; sell; contract to sell; sell any option or contract to purchase; purchase any option or contract to sell; grant any option, right, or warrant to purchase; or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable (directly or indirectly) for Common Stock held immediately before the effective date of the registration statement for such offering or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash, or otherwise. The foregoing provisions of this Subsection 2.11 shall apply only to the IPO or any other QPO, shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement, or the transfer of any shares to any trust for the direct or indirect benefit of the Holder or the immediate family of the Holder, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, and shall be applicable to the Holders only if all officers and directors are subject to the same restrictions and the Company uses commercially reasonable efforts to obtain a similar agreement from all stockholders individually owning more than one percent (1%) of the Company’s outstanding Common Stock (after giving effect to conversion into Common Stock of all outstanding Preferred Stock). The underwriters in connection with such registration are intended third-party beneficiaries of this Subsection 2.11 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in connection with such registration that are consistent with this Subsection 2.11 or that are necessary to give further effect thereto. Any discretionary waiver or termination of the restrictions of any or all of such agreements by the Company or the underwriters shall apply pro rata to all Holders subject to such agreements, based on the number of shares subject to such agreements.
2.12 Restrictions on Transfer; PRIs.
(a) The Preferred Stock and the Registrable Securities shall not be sold, pledged, or otherwise transferred, and the Company shall not recognize and shall issue stop-transfer instructions to its transfer agent with respect to any such sale, pledge, or transfer, except upon the conditions specified in this Agreement, which conditions are intended to ensure compliance with the provisions of the Securities Act. A transferring Holder will cause any proposed purchaser, pledgee, or transferee of the Preferred Stock and the Registrable Securities held by such Holder to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Agreement.
Notwithstanding the foregoing, the Company shall not require any transferee of shares pursuant to an effective registration statement or, following the IPO, SEC Rule 144, in each case, to be bound by the terms of this Agreement.
(b) Each certificate, instrument, or book entry representing (i) the Preferred Stock, (ii) the Registrable Securities, and (iii) any other securities issued in respect of the securities referenced in clauses (i) and (ii), upon any stock split, stock dividend, recapitalization, merger, consolidation, or similar event, shall (unless otherwise permitted by the provisions of Subsection 2.13(c)) be notated with a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT.
THE SECURITIES REPRESENTED HEREBY MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
The Holders consent to the Company making a notation in its records and giving instructions to any transfer agent of the Restricted Securities in order to implement the restrictions on transfer set forth in this Subsection 2.12.
(c) The holder of such Restricted Securities, by acceptance of ownership thereof, agrees to comply in all respects with the provisions of this Section 2 and Section 5.11. Before any proposed sale, pledge, or transfer of any Restricted Securities, unless there is in effect a registration statement under the Securities Act covering the proposed transaction or following the IPO, the transfer is made pursuant to SEC Rule 144, the Holder thereof shall give notice to the Company of such Holder’s intention to effect such sale, pledge, or transfer, provided that no such notice shall be required in connection if the intended sale, pledge or transfer complies with SEC Rule 144. Each such notice shall describe the manner and circumstances of the proposed sale, pledge, or transfer in sufficient detail and, if reasonably requested by the Company, shall be accompanied at such Holder’s expense by either (i) a written opinion of legal counsel who shall, and whose legal opinion shall, be reasonably satisfactory to the Company, addressed to the Company, to the effect that the proposed transaction may be effected without registration under the Securities Act; (ii) a “no action” letter from the SEC to the effect that the proposed sale, pledge, or transfer of such Restricted Securities without registration will not result in a recommendation by the staff of the SEC that action be taken with respect thereto; or (iii) any other evidence reasonably satisfactory to counsel to the Company to the effect that the proposed sale, pledge, or transfer of the Restricted Securities may be effected without registration under the Securities Act, whereupon the Holder of such Restricted Securities shall be entitled to sell, pledge, or transfer such Restricted Securities in accordance with the terms of the notice given by the Holder to the Company. The Company will not require such a legal opinion or “no action” letter (x) in any transaction in compliance with SEC Rule 144; or (y) in any transaction in which such Holder distributes Restricted Securities to an Affiliate of such Holder for no consideration; provided that each transferee agrees in writing to be subject to the terms of this Subsection 2.12. Each certificate, instrument, or book entry representing the Restricted Securities transferred as above provided shall be notated with, except if such transfer is made pursuant to
SEC Rule 144, the appropriate restrictive legend set forth in Subsection 2.12(b), except that such certificate instrument, or book entry shall not be notated with such restrictive legend if, in the opinion of counsel for such Holder and the Company, such legend is not required in order to establish compliance with any provisions of the Securities Act. Notwithstanding anything in this Agreement to the contrary, but subject to Section 5.11(d), no Holder shall consummate any proposed sale, pledge or transfer of Preferred Stock or Registrable Securities without giving written notice to the Company at least fifteen (15) days prior to the consummation thereof (unless earlier approved or waived by the Board); provided that such notice shall not be required at any time following the Company’s IPO or any other QPO. If the Board does not object to such sale, pledge, or transfer in accordance with Section 5.11(f)(ii) within fifteen (15) days after a Holder has delivered such notice, the Holder may consummate the proposed sale, pledge, or transfer. Subject to the foregoing, the Company will use commercially reasonable efforts to promptly effect any transfer that complies with SEC Rule 144, including causing the restrictive legend set forth in this Subsection 2.12 to be removed, without requiring the holder to provide a written opinion of legal counsel.
2.13 Termination of Registration Rights. The right of any Holder to request registration or inclusion of Registrable Securities in any registration pursuant to Subsections 2.1 or 2.2 shall terminate upon the earliest to occur of:
(a) the closing of a Deemed Liquidation Event (as such term is defined in the Restated Certificate);
(b) such time as Rule 144 or another similar exemption under the Securities Act is available for the sale of all of such Holder’s shares without limitation during a three-month period without registration; and
(c) the third anniversary of the date of the IPO or any other QPO.
3. Information and Observer Rights.
3.1 Delivery of Financial Statements. The Company shall deliver to each Major Investor; provided that the Board has not reasonably determined that such Major Investor is a Competitor of the Company:
(a) as soon as practicable, but in any event within one hundred twenty (120) days after the end of each fiscal year of the Company (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and a comparison between (x) the actual amounts as of and for such fiscal year and (y) the comparable amounts for the prior year and as included in the Budget (as defined in Subsection 3.1(e)) for such year, with an explanation of any material differences between such amounts and a schedule as to the sources and applications of funds for such year, and (iii) a statement of stockholders’ equity as of the end of such year, all such financial statements audited and certified by independent public accountants of nationally recognized standing selected by the Company and who are approved by the Board;
(b) as soon as practicable, but in any event within forty-five (45) days after the end of each quarter of each fiscal year of the Company, unaudited statements of income and cash flows for such fiscal quarter, and an unaudited balance sheet and a statement of stockholders’ equity as of the end of such fiscal quarter, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments; and (ii) not contain all notes thereto that may be required in accordance with GAAP);
(c) as soon as practicable, but in any event within forty-five (45) days after the end of each quarter of each fiscal year of the Company, a statement showing the number of shares of each class and series of capital stock and securities convertible into or exercisable for shares of capital stock outstanding at the end of the period, the Common Stock issuable upon conversion or exercise of any outstanding securities convertible or exercisable for Common Stock and the exchange ratio or exercise price applicable thereto, and the number of shares of issued stock options and stock options not yet issued but reserved for issuance, if any, all in sufficient detail as to permit the Major Investors to calculate their respective percentage equity ownership in the Company, and certified by the chief financial officer or chief executive officer of the Company as being true, complete, and correct;
(d) as soon as practicable, but in any event within thirty (30) days of the end of each month, an unaudited income statement and statement of cash flows for such month, and an unaudited balance sheet as of the end of such month, all prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end audit adjustments and (ii) not contain all notes thereto that may be required in accordance with GAAP).
(e) as soon as practicable, but in any event thirty (30) days before the end of each fiscal year, a budget and operating plan for the next fiscal year (collectively, the “Budget”), approved by the Board and prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; and
(f) such other information relating to the financial condition, business, or corporate affairs, of the Company as any Major Investor may from time to time reasonably request; provided, however, that the Company shall not be obligated under this Subsection 3.1 to provide information that the Company reasonably and in good faith (i) considers to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company); (ii) believes the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel or (iii) considers to be commercially sensitive or competitively sensitive information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company).
If, for any period, the Company has any subsidiary whose accounts are consolidated with those of the Company, then in respect of such period the financial statements delivered pursuant to the foregoing sections shall be the consolidated and consolidating financial statements of the Company and all such consolidated subsidiaries.
Notwithstanding anything else in this Subsection 3.1 to the contrary, the Company may cease providing the information set forth in this Subsection 3.1 during the period starting with the date thirty (30) days before the Company’s good-faith estimate of the date of filing of a registration statement if it reasonably concludes it must do so to comply with the SEC rules applicable to such registration statement and related offering; provided that the Company’s covenants under this Subsection 3.1 shall be reinstated at such time as the Company is no longer actively employing its commercially reasonable efforts to cause such registration statement to become effective.
Nothing in this Subsection 3.1 or otherwise in this Agreement shall be deemed to limit in any way any rights to information of any Major Investor pursuant to Section 220 of the Delaware General Corporation Law (or any successor provision thereto).
3.2 Inspection. The Company shall permit each Major Investor (provided that the Board has not reasonably determined that such Major Investor is a Competitor of the Company), at such Major Investor’s expense, to visit and inspect the Company’s properties; examine its books of account and records; and discuss the Company’s affairs, finances, and accounts with its executive officers, during normal business hours of the Company as may be reasonably requested by the Major Investor after providing reasonable advance notice; provided, however, that the Company shall not be obligated pursuant to this Subsection 3.2 to provide access to any information that it reasonably and in good faith (i) considers to be a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); (ii) believes the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel or (iii) considers to be commercially sensitive or competitively sensitive information (unless covered by an enforceable confidentiality agreement, in a form acceptable to the Company); provided further, that no Major Investor shall be permitted to exercise such rights on more than two (2) occasions in any consecutive twelve-month period.
3.3 Observer Rights.
(a) As long as [Investor 3] (“[Investor 3]”) and its Affiliates continue to own beneficially shares of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of [Investor 3] to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company, or for other similar reasons.
(b) As long as [Investor 4] (“[Investor 4]”) and its Affiliates continue to own beneficially shares of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of [Investor 4] to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company, or for other similar reasons.
(c) As long as [Investor 5] (“[Investor 5]”) continues to own beneficially Registrable Securities, the Company shall invite a representative of [Investor 5] to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors
at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company, or for other similar reasons.
(d) As long as [Investor 6] (“[Investor 6]”) and its Affiliates continue to own beneficially shares of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of [Investor 6] (the “[Investor 6] Observer”) to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company, or for other similar reasons. The Company shall comply with requirements of U.S. export control laws and regulations in performing its obligations under this Agreement. Because [Investor 6] employs [***] citizens (possibly including the [Investor 6] Observer) who are not “U.S. Persons” for purposes of U.S. export control laws and regulations, the Company shall notify [Investor 6] prior to releasing to or discussing with [Investor 6] personnel any technical information that is subject to U.S. licensing requirements for export to [***] (e.g., Technology classified in ECCN 9E515 or ITAR-controlled Technical Data) so that [Investor 6] can identify requirements applicable to the subsequent release of such information to other [Investor 6] personnel. In addition, since the [Investor 6] Observer may not be a “U.S. Person,” the Company shall provide advance notification to [Investor 6] if technical information that is subject to U.S. licensing requirements for export to [***] will be discussed during a meeting of the Board or any committee thereof so that the [Investor 6] Observer can remove himself from that portion of the meeting or take steps with the Company to obtain authorization for the discussion or release of such information.
(e) As long as [Investor 7] (“[Investor 7]”) or its Affiliates continue to own beneficially shares of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of [Investor 7] to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board (i) determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or (ii) reasonably and in good faith considers that such meeting or portion thereof constitutes commercially sensitive or competitively
sensitive information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company).
(f) As long as [Investor 8] or an Affiliate designated by [Investor 8] (such funding entity, “[Investor 8]”) and its Affiliates continue to own beneficially shares of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of [Investor 8] to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company, or for other similar reasons.
(g) As long as [Investor 9] and its Affiliates (“[Investor 9]”) continue to own beneficially an aggregate of at least 2,503,756 shares of Series C Preferred Stock or Series E Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), which number is subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like, the Company shall invite a representative of [Investor 9] to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company, or for other similar reasons.
(h) As long as [Investor 10] (“[Investor 10]”) and its Affiliates continue to own beneficially shares of Series D Preferred Stock (or shares of Common Stock issued upon conversion thereof), the Company shall invite a representative of [Investor 10] to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company, or for other similar reasons.
(i) As long as [Investor 2] and its Affiliates continue to own beneficially shares of Series D Preferred Stock (or shares of Common Stock issued upon conversion thereof), the Company shall invite a representative of [Investor 2] to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company, or for other similar reasons.
(j) As long as [Investor 1] and its Affiliates continue to own beneficially shares of Series D-1 Preferred Stock (or shares of Common Stock issued upon conversion thereof), the Company shall invite a representative of [Investor 1] to attend all meetings of its Board and all committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Board determines upon written advice of counsel, such determination to be final and binding, that access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company, or for other similar reasons.
(k) Notwithstanding the foregoing, no observer shall be invited to, or have the right to attend any meeting of the Compliance Committee of the Board, unless such observer is a U.S. citizen. In addition, in connection with the foregoing rights of this Section 3.3, the Company reserves the right to request that any of the respective representatives and observers of [Investor 3], [Investor 4], [Investor 5], [Investor 6], [Investor 7], [Investor 8], [Investor 9], [Investor 10], [Investor 2] and [Investor 1] enter into a confidentiality and non-disclosure agreement in a form reasonably satisfactory to such Investor and the Company. Such representatives and observers shall enter into such confidentiality and non-disclosure agreement prior to attending any meetings of the Board and committees thereof.
3.4 Foreign Ownership Notifications. If (a) the Company’s foreign ownership percentage increases or (b) any agreement to which the Company is a party is terminated due to the Company’s foreign ownership or any business proposal by the Company (including any government contract bids) is not accepted due to the Company’s foreign ownership, the Company shall notify each Major Investor as soon as practicable, but in any event within ten (10) days after such occurrence or such date the Company becomes aware of such change.
3.5 Termination of Information and Observer Rights. The covenants set forth in Subsection 3, Subsection 3.2, Subsection 3.3 and Subsection 3.4 shall terminate and be of no further force or effect (a) immediately before the consummation of the IPO or any other QPO, (b) when the Company first becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act, or (c) upon a Deemed Liquidation Event, whichever event occurs first.
3.6 Confidentiality. Each Investor agrees that such Investor will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any confidential information obtained from the Company or its representatives, whether pursuant to the terms of this Agreement (including notice of the Company’s intention to file a registration statement), applicable law, or otherwise in connection with its investment in the Company, unless such confidential information (a) is known or becomes known to the public in general (other than as a result of a breach of this Subsection 3.6 by such Investor), (b) is or has been independently developed or conceived by the Investor without use of the Company’s confidential information, or (c) is or has been made known or disclosed to the Investor by a third party without a breach of any obligation of confidentiality such third party may have to the Company; provided, however, that an Investor may disclose confidential information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company; (ii) to any prospective purchaser of any Registrable Securities from such Investor, if such prospective purchaser agrees to be bound by the provisions of this Subsection 3.6; (iii) to any existing or prospective Affiliate, partner, member, stockholder, or wholly owned subsidiary of such Investor in the ordinary course of business, provided that such Investor informs such Person that such information is confidential and directs such Person to maintain the confidentiality of such information; or (iv) as may otherwise be required by law, provided that the Investor promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent of any such required disclosure. For the avoidance of doubt, no Investor will use any confidential information obtained from the Company or its representatives pursuant to the terms of this Agreement in connection with any commercial arrangement such Investor may have with the Company.
3.7 Limitation on Foreign Person Investors. Notwithstanding the covenants set forth in this Section 3, the Company shall not provide any Investor that is a Foreign Person, and no Investor that is a Foreign Person shall seek, access to any “material non-public technical information” within the meaning of the DPA.
4. Rights to Future Stock Issuances.
4.1 Right of First Offer. Subject to the terms and conditions of this Subsection 4.1, and applicable securities laws, if the Company proposes to offer or sell any New Securities, the Company shall first offer such New Securities to each Major Investor. A Major Investor shall be entitled to apportion the right of first offer hereby granted to it in such proportions as it deems appropriate, among (i) itself and (ii) its Affiliates; provided that each such Affiliate is not a Competitor of the Company and agrees to enter into this Agreement and the Voting Agreement as an “Investor” under each such agreement.
(a) The Company shall give notice (the “Offer Notice”) to each Major Investor, stating (i) its bona fide intention to offer such New Securities, (ii) the number of such New Securities to be offered, and (iii) the price and terms, if any, upon which it proposes to offer such New Securities.
(b) By notification to the Company within twenty (20) days after the Offer Notice is given, each Major Investor may elect to purchase or otherwise acquire, at the price and on the terms specified in the Offer Notice, up to that portion of such New Securities which equals the proportion that the Common Stock then held by such Major Investor (including all shares of Common Stock then issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held by such Major Investor) bears to the total Common Stock of the Company then held by all Major Investors (assuming full conversion and/or exercise, as applicable, of all
Preferred Stock and other Derivative Securities held by such Major Investors). At the expiration of such twenty (20) day period, the Company shall promptly notify each Major Investor that elects to purchase or acquire all the shares available to it (each a “Fully Exercising Investor”) of any other Major Investor’s failure to do likewise. During the ten (10) day period commencing after the Company has given such notice, each Fully Exercising Investor may, by giving notice to the Company, elect to purchase or acquire, in addition to the number of shares specified above, up to that portion of the New Securities for which Major Investors were entitled to subscribe but that were not subscribed for by the Major Investors which is equal to the proportion that the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of Preferred Stock and any other Derivative Securities then held, by such Fully Exercising Investor bears to the Common Stock issued and held, or issuable (directly or indirectly) upon conversion and/or exercise, as applicable, of the Preferred Stock and any other Derivative Securities then held, by all Fully Exercising Investors who wish to purchase such unsubscribed shares. The closing of any sale pursuant to this Subsection 4.1(b) shall occur within the later of one hundred and twenty (120) days of the date that the Offer Notice is given and the date of initial sale of New Securities pursuant to Subsection 4.1(c).
(c) If all New Securities referred to in the Offer Notice are not elected to be purchased or acquired as provided in Subsection 4.1(b), the Company may, during the ninety (90) day period following the expiration of the periods provided in Subsection 4.1(b), offer and sell the remaining unsubscribed portion of such New Securities to any Person or Persons at a price not less than, and upon terms no more favorable to the offeree than, those specified in the Offer Notice. If the Company does not enter into an agreement for the sale of the New Securities within such period, or if such agreement is not consummated within thirty (30) days of the execution thereof, the right provided hereunder shall be deemed to be revived and such New Securities shall not be offered unless first reoffered to the Major Investors in accordance with this Subsection 4.1.
(d) The right of first offer in this Subsection 4.1 shall not be applicable to (i) Exempted Securities (as defined in the Restated Certificate); (ii) the issuance of shares of Series E Preferred Stock (as defined in the Series E Purchase Agreement) to any Additional Purchasers (as defined in the Series E Purchase Agreement) pursuant to Subsection 1.3 of the Series E Purchase Agreement; and (iii) shares of Common Stock issued in the IPO or any other QPO.
(e) Notwithstanding any provision of Subsection 4.1 to the contrary, in lieu of complying with the provisions of this Subsection 4.1, solely with respect to Major Investors other than [Investor 3], [Investor 4], [Investor 7], [Investor 8], [Investor 9], [Investor 10], [Investor 2], [Investor 1], and the New Money Series E Lead Investor but subject to Subsection 4.1 with respect to [Investor 3], [Investor 4], [Investor 7], [Investor 8], [Investor 9], [Investor 10], [Investor 2], [Investor 1], and the New Money Series E Lead Investor, the Company may elect to give notice to such Major Investors within thirty (30) days after the issuance of New Securities. Such notice shall describe the type, price, and terms of the New Securities. Each such Major Investor shall have twenty (20) days from the date notice is given to elect to purchase up to the number of New Securities that would, if purchased by such Major Investor, maintain such Major Investor’s percentage-ownership position, calculated as set forth in Subsection 4.1(b) before giving effect to the issuance of such New Securities. The closing of such sale shall occur within sixty (60) days of the date notice is given to the Major Investors.
4.2 Termination. The covenants set forth in Subsection 4.1 shall terminate and be of no further force or effect (i) immediately before the consummation of an IPO or any other QPO or (ii) upon a Deemed Liquidation Event, whichever event occurs first.
5. Additional Covenants.
5.1 Insurance. The Company shall use its commercially reasonable efforts to maintain, from financially sound and reputable insurers Directors and Officers liability insurance in an amount and on terms and conditions reasonably acceptable to the Board, and will use commercially reasonable efforts to cause such insurance policies to be maintained until such time as the Board determines that such insurance should be discontinued.
5.2 Employee Agreements. The Company will cause each person now or hereafter employed by it or by any subsidiary (or engaged by the Company or any subsidiary as a consultant/independent contractor) with access to confidential information and/or trade secrets to enter into a nondisclosure and proprietary rights assignment agreement as determined by the Board from time to time.
5.3 Employee Stock. All future grants of options and shares of the Company’s capital stock, and the terms of all option and incentive plans, shall be approved and/or established by the Board.
5.4 Qualified Small Business Stock. If the Board determines it to be in the best interest of the Company and its owners, the Company shall use commercially reasonable efforts to cause the shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock, as well as any shares into which such shares are converted, within the meaning of Section 1202(f) of the Internal Revenue Code (the “Code”), to constitute “qualified small business stock” as defined in Section 1202(c) of the Code; provided, however, that such requirement shall not be applicable if the Board determines, in its good-faith business judgment, that such qualification is inconsistent with the best interests of the Company. The Company shall submit to its stockholders (including the Investors) and to the Internal Revenue Service any reports that may be required under Section 1202(d)(1)(C) of the Code and the regulations promulgated thereunder. In addition, within twenty (20) business days after any Investor’s written request therefor, the Company shall, at its option, either (i) deliver to such Investor a written statement indicating whether (and what portion of) such Investor’s interest in the Company constitutes “qualified small business stock” as defined in Section 1202(c) of the Code or (ii) deliver to such Investor such factual information in the Company’s possession as is reasonably necessary to enable such Investor to determine whether (and what portion of) such Investor’s interest in the Company constitutes “qualified small business stock” as defined in Section 1202(c) of the Code.
5.5 Board Matters. Unless otherwise determined by the vote of a majority of the directors then in office, (a) the Board shall meet at least quarterly in accordance with an agreed-upon schedule, (b) the Board shall conduct a telephonic conference at least once every six (6) weeks in accordance with an agreed-upon schedule and (c) the Series E Director then sitting shall be invited to sit on any committees established by the Board, other than those related to national security (unless such then-sitting Series E Director, as applicable, has the requisite security clearance and is otherwise permitted by applicable law). The Company shall reimburse the nonemployee directors and observers for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending meetings of the Board and any other meetings or events attended on the Company’s behalf at the Company’s written request. The Board may from time to time establish such committees as the Board deems advisable.
5.6 Successor Indemnification. If the Company or any of its successors or assignees consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, then to the extent necessary, the Company shall use commercially
reasonable efforts to make proper provision so that the successors and assignees of the Company assume the obligations of the Company with respect to indemnification of members of the Board as in effect immediately before such transaction, whether such obligations are contained in the Company’s Bylaws, its Certificate of Incorporation, or elsewhere, as the case may be.
5.7 Indemnification Matters. The Company hereby acknowledges that one (1) or more of the directors nominated to serve on the Board by the Investors (each an “Investor Director”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by one or more of the Investors and certain of their affiliates (collectively, the “Investor Indemnitors”). The Company hereby agrees (a) that it is the indemnitor of first resort (i.e., its obligations to any such Investor Director are primary and any obligation of the Investor Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Investor Director are secondary), (b) that it shall be required to advance the full amount of expenses incurred by such Investor Director and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement by or on behalf of any such Investor Director to the extent legally permitted and as required by the Company’s Certificate of Incorporation or Bylaws of the Company (or any agreement between the Company and such Investor Director), without regard to any rights such Investor Director may have against the Investor Indemnitors, and, (c) that it irrevocably waives, relinquishes and releases the Investor Indemnitors from any and all claims against the Investor Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Investor Indemnitors on behalf of any such Investor Director with respect to any claim for which such Investor Director has sought indemnification from the Company shall affect the foregoing and the Investor Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Investor Director against the Company.
5.8 Compliance with Laws. The Company shall use commercially reasonable efforts, and shall cause any direct or indirect subsidiary or entity controlled by it, whether now in existence or formed in the future, to use commercially reasonable efforts, to comply in all material respects with all applicable laws.
5.9 Termination of Covenants. The covenants set forth in this Section 5, except for Subsections 5.6, 5.7 and 5.10, shall terminate and be of no further force or effect upon the earliest to occur of (i) immediately before the consummation of the IPO or any other QPO, (ii) when the Company first becomes subject to the periodic reporting requirements of Section 12(g) or 15(d) of the Exchange Act, and (iii) upon a Deemed Liquidation Event, whichever event occurs first.
5.10 Right to Conduct Activities. The Company hereby agrees and acknowledges that each of the Investors (together with its respective Affiliates) engages in investment activities, and as such reviews the business plans and related proprietary information of many enterprises, some of which may compete directly or indirectly with the Company’s business (as currently conducted or as currently propose to be conducted). The Company hereby agrees that, to the extent permitted under applicable law and subject to such Investor’s compliance with its obligations under this Agreement, each of the Investors (together with its respective Affiliates) shall not be liable to the Company for any claim arising out of, or based upon, (i) the investment by such Investor (or its Affiliates) in any entity competitive with the Company, or (ii) actions taken by any partner, officer, employee or other representative of such Investor (or its Affiliates) to assist any such competitive company, whether or not such action was taken as a member of the board of directors of such competitive company or otherwise, and whether or not such action has a detrimental effect on the Company; provided, however, that the foregoing shall not relieve (x) any of the Investors from liability associated with the unauthorized use or disclosure of the
Company’s confidential information obtained pursuant to this Agreement, or (y) any director or officer of the Company from any liability associated with his or her fiduciary duties to the Company.
5.11 Foreign Person Limitations.
(a) Except as provided in this Agreement or the Voting Agreement, unless otherwise approved by the Board, the Company will not provide to any Foreign Person, and no Holder who is a Foreign Person shall seek, any DPA Triggering Rights. No Investor who is a Foreign Person shall be permitted to obtain any DPA Triggering Rights or a voting equity interest in the Company that exceeds 9.9% of the Company’s total voting securities pursuant to the Purchase Agreement, Section 4 of this Agreement, or otherwise, including by way of any secondary transaction(s), without the approval of the Board.
(b) Each Holder covenants that it will request approval from the Company in advance of permitting any Foreign Person affiliated with Holder, whether affiliated as a limited partner or otherwise, to obtain through the Investor any DPA Triggering Rights provided that the Company shall not unreasonably withhold this approval.
(c) If a Holder becomes a Foreign Person or controlled by a Foreign Person, then it will provide at least fifteen (15) business days’ advance written notice to the Company.
(d) If the Board determines in good faith that any Holder, by reason of such Holder’s (i) ownership or Foreign Person status notified pursuant to Section 5.11(b) or (c) or (ii) proposed sale, pledge, or transfer of Preferred Stock or Registrable Securities (pursuant to Section 2), could reasonably be expected to, by itself or when taken together with any other Holder’s ownership of Preferred Stock or Registrable Securities, result in any PRI, then the Board may deliver a written notice to such Holder (each, a “PRI Notice”), notifying such Holder that the Board has determined that a PRI may or could exist upon such Holder’s continued ownership of Preferred Stock or Registrable Securities or such Holder’s sale, pledge, or transfer of Preferred Stock or Registrable Securities to the transferee set forth in the notice delivered to the Company pursuant to Subsection 2.12(c); describing in reasonable detail the basis for the Board’s determination.
(e) Each PRI Notice may make reasonable requests for information from the Holder that the Board believes are necessary to determine whether a PRI may or could exist upon such Holder’s continued ownership of Preferred Stock or Registrable Securities or such Holder’s proposed sale, pledge, or transfer of Preferred Stock or Registrable Securities and Holder will use commercially reasonable efforts to provide information responsive to such requests. Such Holder shall not have less than 10 days to respond to any such PRI Notice.
(f) If, upon receipt of a PRI Notice, a Holder responds in a manner sufficient for the Board to determine that the basis for such PRI Notice no longer exists, and the Board makes such determination on such basis or otherwise (which determination shall be made within 10 days of such Holder’s response to the PRI Notice), then the Company shall promptly notify the Holder of such determination and no further action shall be required, and, with respect to a PRI Notice for the reason described under clause (ii) of Section 5.11(d), such proposed sale, pledge, or transfer shall be permitted. However, if, upon receipt of a PRI Notice, a Holder fails to respond to the PRI Notice within the time requested or in a manner sufficient for the Board to determine that the basis for such PRI Notice no longer exists, then (i) with respect to a PRI Notice for the reason described under clause (i) of Section 5.11(d), (A) the Company shall promptly notify such Holder of the Board’s determination, including the basis for
such determination, and upon such Holder’s receipt of such notification, the Company and such Holder shall discuss changes in the respective rights and/or obligations of the Company and such Holder that would mitigate or resolve the PRI described in the applicable PRI Notice (and the Company and such Holder agree to negotiate promptly and in good faith whether any such changes in rights and/or obligations might be mutually acceptable and, if so, the implementation thereof) and (B) if the Company and Holder are unable to resolve the PRI, such Holder has not responded to such notice or has not made a good faith effort to mitigate or resolve the PRI, in each case within 20 days of such Holder’s receipt of the notice described in the preceding clause (A), upon written notice (a “Repurchase Notice”) to such Holder delivered within 60 days after delivery of the PRI Notice (or, if later, within 30 days after termination of any negotiations contemplated by the immediately preceding clause (A)), the Company may, in its sole discretion, elect to repurchase any or all of the shares of Preferred Stock or Registrable Securities held by such Holder at a purchase price (the “PRI Repurchase Price”) equal to the amount that would be distributable to the holder of such shares assuming the Company (x) sold all of its assets for the then-current fair market value of the Company, as determined in good faith by the Board valuing the Company on a going concern basis, in a transaction constituting a Deemed Liquidation Event (as defined in the Restated Certificate) and (y) distributed all available proceeds to its stockholders in accordance with Section 2 of Part B under Article Fourth of the Restated Certificate, which repurchase shall occur, if at all, within 180 days after delivery of the Repurchase Notice, or (ii) with respect to a PRI Notice for the reason described under clause (ii) of Section 5.11(d), the Company may object to such proposed sale, pledge, or transfer, in which case such Holder shall not be permitted, and agrees not to, effect such proposed sale, pledge, or transfer (and any such sale, pledge, or transfer shall be void ab initio). Any Repurchase Notice shall include a reasonably detailed description of the Board’s determination of the PRI Repurchase Price and the information the Board relied upon in determining the PRI Repurchase Price. During the 15 days following the delivery of the Repurchase Notice, the Holder may make reasonable requests for, and upon such request the Company shall promptly provide to the Holder (but subject to any limitations imposed by applicable law), any information that is reasonably necessary for the Holder to evaluate the PRI Repurchase Price and reasonably available to the Company. If, within 15 days of a Holder’s receipt of a Repurchase Notice, the Holder notifies the Company in writing that it objects to the PRI Repurchase Price, then the Company shall obtain an independent third-party valuation from a nationally recognized valuation or accounting firm (the “Valuation Firm”) that has not previously provided services to the Company or any subsidiary thereof or otherwise been engaged by the Company or any subsidiary thereof to provide services. The selection of the Valuation Firm shall be subject to the consent of the Holder, which consent shall not be unreasonably withheld, and the fees and reimbursable expenses of such Valuation Firm shall be shared equally between the Company and the Holder. The Valuation Firm shall determine the fair market value of the Company’s securities to be repurchased by the Company from the Holder for purposes of determining the PRI Repurchase Price. The Company and the Holders agree that the Valuation Firm’s determination of the PRI Repurchase Price shall be binding on the parties, and the Company (or its assigns) shall purchase from the applicable Holder, and the applicable Holder shall sell to the Company, the shares described in the applicable Repurchase Notice within two business days after the Valuation Firm’s final determination. Notwithstanding anything to the contrary contained herein, the Company may assign its right to repurchase a Holder’s shares under this Section 5.11 to one or more Persons, provided that the Company shall first offer such assignment of repurchase rights to the Major Investors (other than the applicable Holder), in which event each Major Investor shall have 15 days to accept such offer by written notice delivered to the Company; and in the event more than one Major Investor accepts such offer within such time period, such repurchase rights shall be allocated among such Major Investors pro rata based on their relative fully-diluted ownership percentages in the Company.
5.12 Real Property Holding Corporation. Promptly following (and in any event within ten (10) days after receipt of) written request by an Investor, the Company shall provide such Investor
with a written statement informing such Investor whether such Investor’s interest in the Company constitutes a United States real property interest within the meaning of Section 897 of the Code. The Company’s determination shall comply with the requirements of Treasury Regulations Section 1.897-2(h)(1) or any successor regulation, and the Company shall provide timely notice to the Internal Revenue Service, in accordance with and to the extent required by Treasury Regulations Section 1.897-2(h)(2) or any successor regulation, that such statement has been made. The Company’s obligation to furnish such written statement shall continue notwithstanding the fact that a class of the Company’s stock may be regularly traded on an established securities market or the fact that there is no Preferred Stock then outstanding.
5.13 FCPA. The Company shall not (and shall not permit any of its subsidiaries or controlled affiliates or any of its or their respective directors, officers, managers, employees, independent contractors, representatives, or agents acting on behalf of the Company to) promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, any third party, including any “foreign official” (as such term is defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”)), in each case, in violation of the FCPA or any other applicable anti-bribery or anti-corruption law. The Company further shall (and shall cause each of its subsidiaries and controlled affiliates to) maintain and periodically update systems of internal controls (including, but not limited to, accounting systems, purchasing systems and billing systems) and written policies to ensure compliance with the FCPA or any other applicable anti-bribery or anti-corruption law. Upon reasonable request by a Major Investor, the Company agrees to use commercially reasonable efforts to provide responsive information and/or certifications concerning its efforts to comply with applicable anti-corruption laws. The Company shall promptly notify each Major Investor if the Company becomes aware of any voluntary disclosure, governmental investigation, prosecution, or other enforcement action related to the FCPA or any other anti-corruption law. The Company shall, and shall cause any direct or indirect subsidiary or entity controlled by it, whether now in existence or formed in the future to, comply with the FCPA.
5.14 Government Contracts The Company shall not (and shall not permit any of its subsidiaries or controlled affiliates or any of its or their respective directors, officers, managers, employees, independent contractors, representatives, or agents acting on behalf of the Company to) engage in any conduct that would violate any applicable Government Contract laws, regulations or provisions related to ethical conduct. The Company shall (and shall cause each of its subsidiaries and controlled affiliates to) comply with (i) anti-human trafficking laws and regulatory obligations, (ii) requirements associated with maintaining an affirmative action plan, (iii) obligations to use E-Verify, and (iv) requirements to file EEO-1 and VETS 4212 Reports, if applicable and as required by any Government Contract. Upon reasonable request by a Major Investor, the Company agrees to use commercially reasonable efforts to provide responsive information and/or certifications concerning its efforts to comply with its Government Contract and any other obligations associated with its status as a government contractor. The Company shall promptly notify each Major Investor if the Company becomes aware of any allegation, voluntary disclosure, governmental investigation, prosecution, or other enforcement action related to the material non-compliance with any Government Contract. The Company shall, and shall cause any direct or indirect subsidiary or entity controlled by it, whether now in existence or formed in the future to, comply with obligations arising from its Government Contracts.
6. Miscellaneous.
6.1 Successors and Assigns. Except as otherwise specified in this Agreement, the rights under this Agreement may be assigned (but only with all related obligations and excluding any
rights of any Holder under Section 3.3) by a Holder to a transferee of Registrable Securities that (i) is an Affiliate of a Holder, (ii) is a Holder’s Immediate Family Member or trust for the benefit of an individual Holder or one or more of such Holder’s Immediate Family Members, or (iii) acquired such Registrable Securities in a transfer made in accordance with the terms of this Agreement, and, after such transfer, holds all Registrable Securities held by the transferring Holder prior to such transfer; provided, however, that (x) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred; and (y) such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions of this Agreement, including the provisions of Subsection 2.11. For the purposes of determining the number of shares of Registrable Securities held by a transferee, the holdings of a transferee (1) that is an Affiliate or stockholder of a Holder; (2) who is a Holder’s Immediate Family Member; or (3) that is a trust for the benefit of an individual Holder or such Holder’s Immediate Family Member shall be aggregated together and with those of the transferring Holder; provided further that all transferees who would not qualify individually for assignment of rights shall have a single attorney-in-fact for the purpose of exercising any rights, receiving notices, or taking any action under this Agreement. The terms and conditions of this Agreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided herein.
6.2 Governing Law. This Agreement and any claim, controversy, proceeding or other action of any kind or any nature (whether at law or in equity, based upon contract, tort or otherwise) that is any way related to this Agreement or any of the transactions related hereto shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.
6.3 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
6.4 Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
6.5 Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or (i) personal delivery to the party to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their addresses as set forth on SCHEDULE A hereto, or to the principal office of the Company and to the attention of the Company’s chief executive officer, in the case of the Company, or to such email address, facsimile number, or address as subsequently modified by written notice given in accordance with this Subsection 6.5. If notice is given to the Company, a copy shall also be sent to Cooley LLP, 11951
Freedom Dr Suite 1400, Reston, VA 20194, Attn: Andrew Lustig, Telephone [***], Email: [***], and if notice is given to (v) Investors, except as set forth below, a copy shall also be given to the person(s), if any, indicated below their name on the schedule of addresses or the signature pages hetero, (a) [Investor 3], a copy shall also be sent to a copy shall also be sent to such additional email address, facsimile number, or address as subsequently modified by written notice given in accordance with this Subsection 6.5, (b) [Investor 4], a copy shall also be sent to [***], (c) [Investor 6], a copy shall also be sent to [***], (d) [Investor 7], a copy shall also be sent to [***]; (e) [Investor 8], a copy shall also be sent to [***], (f) [Investor 9], a copy shall also be sent to [***], (g) [Investor 2], a copy shall also be sent to [***], (h) [Investor 10], a copy shall also be sent to [***], and (i) [Investor 1], a copy shall also be sent to [***]. In the event that [Investor 3], [Investor 4], [Investor 6], [Investor 7], [Investor 8], [Investor 9], [Investor 10], [Investor 2], [Investor 1] or the New Money Series E Lead Investor are no longer Holders, compliance with this Subsection 6.5 with respect to such Holder shall not be required.
6.6 Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Company and the Requisite Holders; provided that the Company may in its sole discretion waive compliance with Subsection 2.12(c) (and the Company’s failure to object promptly in writing after notification of a proposed assignment allegedly in violation of Subsection 2.12(c) shall be deemed to be a waiver); provided further that, if [Investor 3] then owns Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), Subsection 3.3(a), this “provided-further” clause and the third-to-last sentence of this Section 6.6 may be amended, waived or terminated only with the written consent of [Investor 3]; provided further that if [Investor 4] then owns Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), Subsection 3.3(b), this “provided-further” clause and the third-to-last sentence of this Subsection 6.6 may be amended, waived or terminated only with the written consent of [Investor 4]; provided further that, if [Investor 5] then owns Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), Subsection 3.3(c), this “provided-further” clause and the third-to-last sentence of this Subsection 6.6 may be amended, waived or terminated only with the written consent of [Investor 5]; provided further that, if [Investor 6] then owns Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), Subsection 3.3(d), this “provided-further” clause and the third-to-last sentence of this Section 6.6 may be amended, waived or terminated only with the written consent of [Investor 6]; provided further that, if [Investor 7] or its Affiliates then own Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), Subsection 3.3(e), this “provided-further” clause and the third-to-last sentence of this Section 6.6 may be amended, waived or terminated only with the written consent of [Investor 7]; provided further that, if [Investor 8]then owns Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), Subsection 3.3(f), this “provided-further” clause and the third-to-last sentence of this Section 6.6 may be amended, waived or terminated only with the written consent of [Investor 8]; provided further that, if [Investor 9] then owns no less than an aggregate of 2,503,756 shares of Series C Preferred Stock or Series E Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), which number is subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like, Subsection 3.3(g) and this “provided-further” clause may be amended, waived or terminated only with the written consent of [Investor 9]; provided further that, if [Investor 10] then owns shares of Series D Preferred Stock (or shares of Common Stock issued upon conversion thereof), Subsection 3.3(h) and this “provided-further” clause may be amended, waived or terminated only with the written consent of [Investor 10]; provided further that, if [Investor 2] then owns shares of Series D Preferred Stock (or shares of Common Stock issued upon conversion thereof), Subsection 3.3(i) and this “provided-further” clause may be amended, waived or terminated only with the written consent of [Investor 2]; provided further that, if [Investor 1] then owns shares of Series D-1 Preferred Stock (or
shares of Common Stock issued upon conversion thereof), Subsection 3.3(j) and this “provided-further” clause may be amended, waived or terminated only with the written consent of [Investor 1]; provided further that, if the New Money Series E Lead Investor then owns shares of Series E Preferred Stock (or shares of Common Stock issued upon conversion thereof), Subsection 5.5 and this “provided-further” clause may be amended, waived or terminated only with the written consent of the New Money Series E Lead Investor; provided further that any provision hereof may be waived by any waiving party on such party’s own behalf, without the consent of any other party. Notwithstanding the foregoing, (a) this Agreement may not be amended or terminated and the observance of any term hereof may not be waived with respect to any Investor without the written consent of such Investor, unless such amendment, termination, or waiver applies to all Investors in the same fashion and does not adversely affect the rights and obligations of any Investor in a disproportionately adverse manner relative to any other Investors (it being agreed, except as otherwise provided pursuant to the last proviso in this sentence, that a waiver of the provisions of Section 4 with respect to a particular transaction and/or amendment of the definition of Exempted Securities in the Restated Certificate with similar effect or of New Securities in this Agreement shall be deemed to apply to all Investors in the same fashion if such waiver or amendment does so by its terms, notwithstanding the fact that certain Investors may nonetheless, by agreement with the Company, purchase securities in such transaction), (b) Subsections 3.1, 3.2, and 4, and any other section of this Agreement specifically applicable to the Major Investors (including this clause (b)) may be amended, modified, terminated, or waived with only the written consent of the Company and the holders of at least a majority of the Registrable Securities then outstanding and held by the Major Investors and (c) Subsection 1.25 shall not be amended in a manner that would exclude a Major Investor from the definition of a Major Investor in Section 1.25, without the prior written consent of such excluded Major Investor; provided that no such waiver or amendment shall be effective with respect to a Major Investor if it deprives such Major Investor of its right to purchase its pro rata share (in accordance with Section 4.1(b)) of any New Securities in any transaction in which other Major Investors purchase New Securities. Any amendment, termination, or waiver effected in accordance with this Subsection 6.6 shall be binding on all parties hereto, regardless of whether any such party has consented thereto. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision. Notwithstanding anything in this Agreement to the contrary, except with respect to the underwriters contemplated in Section 2.11, no Person who does not own Common Stock or Preferred Stock shall be entitled to any rights under this Agreement.
6.7 Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law.
6.8 Aggregation of Stock. All shares of Registrable Securities held or acquired by Affiliates shall be aggregated together for the purpose of determining the availability of any rights under this Agreement and such Affiliated persons may apportion such rights as among themselves in any manner they deem appropriate.
6.9 Additional Investors. Notwithstanding anything to the contrary contained herein, if the Company issues additional shares of Preferred Stock after the date hereof, whether pursuant to the Series E Purchase Agreement or otherwise, any purchaser of such shares of Preferred Stock shall become a party to this Agreement by executing and delivering an additional counterpart signature page to this Agreement, and thereafter shall be deemed an “Investor” for all purposes hereunder. No action or consent
by the Investors shall be required for such joinder to this Agreement by such additional Investor, so long as such additional Investor has agreed in writing to be bound by all of the obligations as an “Investor” hereunder.
6.10 Entire Agreement. This Agreement (including any Schedules and Exhibits hereto) constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled. Upon the effectiveness of this Agreement, the Prior Agreement shall be deemed amended and restated and superseded and replaced in its entirety by this Agreement, and shall be of no further force or effect.
6.11 Dispute Resolution. The parties (a) hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the state courts of Delaware and to the jurisdiction of the federal courts situated in Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Delaware or the federal courts situated in Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.
WAIVER OF JURY TRIAL: EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
6.12 Delays or Omissions. No delay or omission to exercise any right, power, or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.
6.13 Acknowledgment. The Company acknowledges that the Investors are in the business of venture capital investing and therefore review the business plans and related proprietary information of many enterprises, including enterprises which may have products or services which
compete directly or indirectly with those of the Company. Subject to the Investor’s obligations set forth in Section 3.6, nothing in this Agreement shall preclude or in any way restrict the Investors from investing or participating in any particular enterprise whether or not such enterprise has products or services which compete with those of the Company.
[SIGNATURE PAGE(S) FOLLOW]
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[Signature Page to Sixth Amended and Restated Investors’ Rights Agreement]
SCHEDULE A
SCHEDULE OF INVESTORS
[***]
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AS SET FORTH IN SECTIONS 6.3 AND 6.4 BELOW, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
FORM OF WARRANT TO PURCHASE STOCK
This WARRANT TO PURCHASE STOCK (as amended and in effect from time to time, this “Warrant”) is issued as of the issue date set forth on Schedule I hereto (the “Issue Date”) by the company set forth on Schedule I hereto (the “Company”) to ____ in connection with that certain Mezzanine Loan and Security Agreement of even date herewith among Silicon Valley Bank, a division of First-Citizens Bank & Trust Company, Arizona Innovation Credit Fund, L.P., on behalf of Arizona Innovation Credit Fund, L.P. – Pool II, Innovation Credit SMA II, L.P., on behalf of Innovation Credit SMA II, L.P. – Pool II, Hercules Capital, Inc., Hercules Private Credit Fund 1 L.P., Hercules Venture Growth Opportunities Fund 1 L.P., Hercules Growth Lending Fund IV LP, Hercules Evergreen Fund LP, the Company and Hawkeye 360 Federal, Inc. (as amended and/or modified and in effect from time to time, the “Loan Agreement”). The parties agree as follows:
SCHEDULE I. WARRANT PROVISIONS.
| | | | | | | | | | | |
| Warrant Section | | Warrant Provision |
| Recitals – “Issue Date” | | |
| Recitals – “Company” | | HawkEye 360, Inc., a Delaware corporation |
| 1.1 – “Class” | | Common Stock, $0.0001 par value per share |
| 1.1 – “Exercise Price” | | $____ per Share |
| 1.2 – “Shares” | | |
| 1.3 – Condition for special adjustment to Exercise Price | | The Company’s first 409A Valuation (as hereinafter defined) obtained after the Issue Date hereof is received and approved by its Board of Directors within 120 days following the Issue Date. |
| 4.1(b) – Share percentage as of the Issue Date | | ____% of the Company’s total fully-diluted shares outstanding. |
| 6.1(a) – “Expiration Date” | | |
| 6.5 – “Holder Notice Address” | | |
| 6.5 – “Company Notice Address” | | HawkEye 360, Inc. 450 Springpark Place, Suite 500 Herndon, Virginia 20170 Attn: John Serafini, Chief Executive Officer, and Chief Legal Officer Email: [***] |
| | | |
| | | | | | | | | | | |
| Warrant Section | | Warrant Provision |
| | | With a copy (which shall not constitute notice) to: Wilmer Cutler Pickering Hale and Dorr LLP 2100 Pennsylvania Avenue NW Washington, DC 20037 Attn: Stephanie Evans, Partner Email: [***] |
| | | |
SECTION 1. RIGHT TO PURCHASE SHARES.
1.1 Grant of Right. For good and valuable consideration, the Company hereby grants to ____ (together with any successor or permitted assignee or transferee of this Warrant or of any shares issued upon exercise hereof, “Holder”) the right, and Holder is entitled, to purchase from the Company up to the number of fully paid and non-assessable shares (as determined pursuant to Section 1.2 below) of the class set forth on Schedule I hereto (the “Class”), at a purchase price per Share set forth on Schedule I hereto (the “Exercise Price”), subject to the provisions and upon the terms and conditions set forth in this Warrant.
1.2 Number of Shares. This Warrant shall be exercisable for the number of shares of the Class set forth on Schedule I hereto (as may be adjusted from time to time in accordance with the provisions of this Warrant, the “Shares”).
1.3 Special Adjustment to Exercise Price. Upon the occurrence (if any) of the event set forth on Schedule I hereto, the Exercise Price shall equal the fair market value of a share of the Class as reported in such 409A Valuation from and after the date of approval thereof by the Company’s Board of Directors, subject to adjustment thereafter from time to time in accordance with the provisions of this Warrant. Promptly thereafter, the Company shall provide to Holder, at its address set forth in Section 6.5 below, (i) the certificate required by Section 3.5 below describing such change to the Exercise Price, (ii) a copy of such 409A Valuation and (iii) evidence of such Board of Directors approval.
SECTION 2. EXERCISE.
2.1 Method of Exercise. Holder may exercise this Warrant in whole or in part at any time and from time to time prior to the expiration or earlier termination of this Warrant, by delivering to the Company the original of this Warrant together with a duly executed Notice of Exercise in substantially the form attached hereto as Appendix 1 and, unless Holder is exercising this Warrant pursuant to a cashless exercise set forth in Section 2.2 below, a check, wire transfer of same-day funds (to an account designated by the Company), or other form of payment acceptable to the Company for the aggregate Exercise Price for the Shares being purchased. Notwithstanding any contrary provision herein, to the extent that the original of this Warrant is an electronic original, in no event shall an original ink-signed paper copy of this Warrant be required for any exercise of a Holder’s rights hereunder, nor shall this Warrant or any physical copy hereof be required to be physically surrendered at the time of any exercise hereof.
2.2 Cashless Exercise. On any exercise of this Warrant, in lieu of payment of the aggregate Exercise Price in the manner specified in Section 2.1 above, Holder may elect to surrender to the Company Shares having an aggregate value equal to the aggregate Exercise Price. If Holder makes such election, the Company shall issue to Holder such number of fully paid and non-assessable Shares determined by the following formula:
X = Y(A-B)/A
where:
X = the number of Shares to be issued to Holder;
Y = the number of Shares with respect to which this Warrant is being exercised (inclusive of the Shares surrendered to the Company in payment of the aggregate Exercise Price);
A = the fair market value (as determined pursuant to Section 2.3 below) of one Share; and
B = the Exercise Price.
2.3 Fair Market Value. If shares of the Class are then traded or quoted on a nationally recognized securities exchange, inter-dealer quotation system or over-the-counter market (a “Trading Market”), the fair market value of a Share shall be the closing price or last sale price of a share of the Class reported for the Business Day immediately before the date on which Holder delivers this Warrant together with its Notice of Exercise to the Company. If shares of the Class are not then traded in a Trading Market, the Board of Directors of the Company shall determine the fair market value of a Share in its reasonable good faith judgment.
2.4 Delivery of Certificate and New Warrant. Within a reasonable time after Holder exercises this Warrant in the manner set forth in Sections 2.1 or 2.2 above, the Company shall deliver to Holder a certificate, which may be in electronic form (or, in the case of uncertificated securities, provide notice of book entry) representing the Shares issued to Holder upon such exercise and, if this Warrant has not been fully exercised and has not expired, a new warrant of like tenor representing the Shares not so acquired (or surrendered in payment of the aggregate Exercise Price).
2.5 Replacement of Warrant.
(a) Paper Original Warrant. To the extent that the original of this Warrant is a paper original, on receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant and, in the case of loss, theft or destruction, on delivery of an indemnity agreement reasonably satisfactory in form, substance and amount to the Company or, in the case of mutilation, on surrender of this Warrant to the Company for cancellation, the Company shall, within a reasonable time, execute and deliver to Holder, in lieu of this Warrant, a new warrant of like tenor and amount.
(b) Electronic Original Warrant. To the extent that the original of this Warrant is an electronic original, if at any time this Warrant is rejected by any person (including, but not limited to, paying or escrow agents) or any such person fails to comply with the terms of this Warrant based on this Warrant being presented to such person as an electronic record or a printout hereof, or any signature hereto being in electronic form, the Company shall, promptly upon Holder’s request and without indemnity, execute and deliver to Holder, in lieu of electronic original versions of this Warrant, a new warrant of like tenor and amount in paper form with original ink signatures.
2.6 Treatment of Warrant Upon Acquisition of Company.
(a) Acquisition. “Acquisition” means any transaction or series of related transactions involving: (i) the sale, lease, exclusive license, or other disposition of all or substantially all of the assets of the Company; (ii) any merger or consolidation of the Company into or with another person or entity (other than a merger or consolidation effected exclusively to change the Company’s domicile), or any other corporate reorganization, in which the stockholders of the Company in their capacity as such immediately prior to such merger, consolidation or reorganization, own less than a majority of the Company’s (or the surviving or successor entity’s) outstanding voting power immediately after such merger, consolidation or reorganization; (iii) any merger, consolidation or other business combination of the Company into or with a special purpose acquisition company or wholly-owned subsidiary thereof; or (iv) any sale or other transfer by the stockholders of the Company of shares representing a majority of the Company’s then-total outstanding combined voting power. For the avoidance of doubt, “Acquisition” shall not include any sale and issuance by the Company of shares of its capital stock or of securities or instruments exercisable for or convertible into, or otherwise representing the right to acquire, shares of its capital stock to one or more investors for cash in a transaction or series of related transactions the primary purpose of which is a bona fide equity financing of the Company.
(b) Treatment of Warrant in Cash/Public Acquisition. In the event of an Acquisition in which the consideration to be received by the holders of the outstanding shares of the Class (in their capacity as such) consists solely of cash, solely of Marketable Securities (as hereinafter defined) or a combination of cash and Marketable Securities (a “Cash/Public Acquisition”), and the fair market value of one Share as determined in accordance with Section 2.3 above would be greater than the Exercise Price in effect as of immediately prior to the closing of such Cash/Public Acquisition, and Holder has not previously exercised this Warrant in full, then, in lieu of Holder’s exercise of the unexercised portion of this Warrant, this Warrant shall, as of immediately prior to such closing (but subject to the occurrence thereof), automatically cease to represent the right to purchase Shares and shall, from and after such closing, represent solely the right to receive the aggregate consideration that would have been payable in such Acquisition on and in respect of all Shares for which this Warrant was exercisable as of immediately prior to the closing thereof, net of the aggregate Exercise Price therefor, as if such Shares had been issued and outstanding to Holder as of immediately prior to such closing, as and when such consideration is paid to the holders of the outstanding shares of the Class. In the event of a Cash/Public Acquisition in which the fair market value of one Share as determined in accordance with Section 2.3 above would be equal to or less than the Exercise Price in effect as of immediately prior to the closing of such Cash/Public Acquisition, then this Warrant will automatically and without further action of any party terminate as of immediately prior to such closing.
(c) Treatment of Warrant in non-Cash/Public Acquisition. Upon the closing of any Acquisition other than a Cash/Public Acquisition, the acquiring, surviving or successor entity shall assume this Warrant and the Company’s obligations hereunder, and this Warrant shall thereafter be exercisable for the same securities and/or other property as would have been paid for the Shares issuable upon exercise of the unexercised portion of this Warrant as if such Shares were outstanding on and as of the closing of such Acquisition, at an aggregate Exercise Price equal to the aggregate Exercise Price in effect as of immediately prior to such closing, all subject to further adjustment from time to time thereafter in accordance with the provisions of this Warrant.
(d) Marketable Securities. “Marketable Securities” means securities meeting all of the following requirements (determined as of immediately prior to the closing of the Acquisition): (i) the issuer thereof is then subject to the reporting requirements of Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and is then current in its filing of all required reports and other information under the Act and the Exchange Act; (ii) the class and series of shares or other security of the issuer that would be received by Holder in connection with the Acquisition were Holder to exercise this Warrant on or prior to the closing thereof is then traded in a Trading Market; and (iii) following the closing of such Acquisition, Holder would not be restricted from publicly re-selling all of the issuer’s shares and/or other securities that would be received by Holder in such Acquisition were Holder to exercise this Warrant in full on or prior to the closing of such Acquisition, except to the extent that any such restriction (x) arises solely under federal or state securities laws, rules or regulations, and (y) does not extend beyond six (6) months from the closing of such Acquisition. Notwithstanding the foregoing provisions of this Section 2.6(d), securities held in escrow or subject to holdback to cover indemnification-related claims shall be deemed to be Marketable Securities if they would otherwise be Marketable Securities but for the fact that they are held in escrow or subject to holdback to cover indemnification-related claims.
SECTION 3. CERTAIN ADJUSTMENTS TO THE SHARES, CLASS AND EXERCISE PRICE.
3.1 Stock Dividends, Splits, Etc. If the Company declares or pays a dividend or distribution on the outstanding shares of the Class payable in additional shares of the Class (including fractional shares) or other securities or property (other than cash), then upon exercise of this Warrant, for each Share acquired, Holder shall receive, without additional cost to Holder, the total number and kind of securities and property which Holder would have received had Holder owned the Shares of record as of the date the dividend or distribution occurred. If the Company subdivides the outstanding shares of the Class by reclassification or otherwise into a greater number of shares, the number of Shares purchasable hereunder shall be proportionately increased, even if such number would include fractional shares, and the Exercise Price shall be proportionately decreased. If the outstanding shares of the Class are combined or consolidated, by reclassification or otherwise, into a lesser number of shares, the Exercise Price shall be proportionately increased and the number of Shares shall be proportionately decreased, even if such number would include fractional shares.
3.2 Reclassification, Exchange, Combination or Substitution. Upon any event whereby all of the outstanding shares of the Class are reclassified, exchanged, combined, substituted, or replaced for, into, with or by Company securities of a different class and/or series, then from and after the consummation of such event, “Class” shall mean such securities and this Warrant will be exercisable for the number of such securities that Holder would have received had the Shares been outstanding on and as of the consummation of such event, at an aggregate Exercise Price equal to the aggregate Exercise Price in effect as of immediately prior to such event, all subject to further adjustment thereafter from time to time in accordance with the provisions of this Warrant. The provisions of this Section 3.2 shall similarly apply to successive reclassifications, exchanges, combinations, substitutions, replacements or other similar events.
3.3 Adjustment to Exercise Price on Cash Dividend. In the event that the Company at any time or from time to time prior to the exercise in full of this Warrant pays any cash dividend on the outstanding shares of the Class or makes any cash distribution on or in respect of all outstanding shares of the Class (other than a distribution of cash proceeds received by the Company in connection with an Acquisition described in Section 2.6(a)(i) above), then on and as of the date of each such dividend payment and/or distribution, the Exercise Price shall be reduced by an amount equal to the amount paid or distributed upon or in respect of each outstanding share of the Class; provided that in no event shall the Exercise Price be reduced below the then-par value, if any, of a share of the Class.
3.4 No Fractional Share. No fractional Share shall be issued upon exercise of this Warrant, and the number of Shares to be issued shall be rounded down to the nearest whole Share. If a fractional Share interest arises upon any exercise of this Warrant, the Company shall eliminate such fractional Share interest by paying Holder in cash an amount equal to (a) such fractional interest, multiplied by (b)(i) the fair market value (as determined in accordance with Section 2.3 above) of a full Share, less (ii) the then-effective Exercise Price (the “Fractional Share Value”), unless Holder otherwise elects, in its sole discretion, to waive such payment. Notwithstanding any contrary provision herein, if this Warrant becomes exercisable for a fractional Share interest at any time or from time to time prior to the exercise in full of this Warrant, and the Company eliminates such fractional Share interest prior to any exercise of this Warrant, then the then-effective aggregate Exercise Price shall be reduced by an amount equal to the Fractional Share Value, unless Holder otherwise elects, in its sole discretion, to waive such reduction.
3.5 Certificate as to Adjustments. Within a reasonable time following each adjustment of the Exercise Price, Class and/or number of Shares pursuant to the terms of this Warrant, the Company, at its expense, shall deliver a certificate of its Chief Financial Officer or other authorized officer to Holder setting forth the adjustments to the Exercise Price, Class and/or number of Shares and the facts upon which such adjustments are based. The Company shall, at any time and from time to time within a reasonable time following Holder’s written request and at the Company’s expense, furnish Holder with a certificate of its Chief Financial Officer or other authorized officer setting forth the then-current Exercise Price, Class and number of Shares and the computations or other determinations thereof.
SECTION 4. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
4.1 Representations and Warranties. The Company represents and warrants to, and agrees with, Holder as follows:
(a) The initial Exercise Price first set forth above is not greater than the fair market value of a share of the Class as determined by the most recently completed third-party valuation, approved or accepted by the Company’s Board of Directors, of a share of the Class obtained for purposes of the Company’s compliance with Section 409A of the Internal Revenue Code of 1986, as amended (or the corresponding section of any successor statute) (a “409A Valuation”).
(b) The number of Shares set forth on Schedule I hereto represents not less than the share percentage set forth on Schedule I hereto, calculated on and as of the Issue Date hereof on a fully-diluted, common stock-equivalent basis (but without excluding shares of capital stock that are not convertible into shares of common stock) assuming (i) the conversion into common stock of all outstanding securities and instruments (including, without limitation, securities deemed to be outstanding pursuant to clause (ii) of this Section 4.1(b)) convertible by their terms into shares of common stock (regardless of whether such securities or instruments are by their terms now
so convertible); (ii) the exercise in full of all outstanding options, warrants (including, without limitation, this Warrant) and other rights to purchase or acquire shares of common stock or securities exercisable for or convertible into shares of common stock (regardless of whether such options, warrants or other rights to purchase or acquire are by their terms now exercisable); and (iii) the inclusion of all shares of common stock reserved for issuance under all of the Company’s incentive stock and stock option plans and not now subject to outstanding grants or options.
(c) All Shares which may be issued upon the exercise of this Warrant, shall, upon issuance, be duly authorized, validly issued, fully paid and non-assessable, and free of any liens and encumbrances except for restrictions on transfer provided for herein or under the Company’s Certificate of Incorporation or Bylaws, each as amended and in effect from time to time (the “Charter Documents”), any Stockholder Agreement (as hereinafter defined) (to the extent Holder is then a party thereto or otherwise subject thereto in accordance with the provisions of Section 5.4 below) or applicable federal and state securities laws. The Company covenants that it shall at all times cause to be reserved and kept available out of its authorized and unissued capital stock such number of shares of the Class and other securities as will be sufficient to permit the exercise in full of this Warrant.
(d) The Company’s capitalization table attached hereto as Appendix 3 is true and complete, in all material respects, as of the Issue Date.
4.2 Notice of Certain Events. If the Company proposes at any time to:
(a) declare any dividend or distribution upon the outstanding shares of the Class, whether in cash, stock or other securities or property and whether or not a regular cash dividend;
(b) offer for subscription or sale pro rata to all holders of the outstanding shares of the Class any additional securities of the Company (other than pursuant to contractual pre-emptive or first refusal rights);
(c) effect any reclassification, exchange, combination, substitution, reorganization or recapitalization of the outstanding shares of the Class;
(d) effect an Acquisition, or to liquidate, dissolve or wind up the Company; or
(e) effect its initial, underwritten offering and sale of its securities to the public pursuant to an effective registration statement under the Act (the “IPO”);
then, in connection with each such event, the Company shall give Holder (pursuant to Section 6.5 below):
(1)in the case of the matters referred to in (a) and (b) above, at least seven (7) Business Days prior written notice of the earlier to occur of the effective date thereof or the date on which a record will be taken for such dividend, distribution, or subscription rights (and specifying the date on which the holders of outstanding shares of the Class will be entitled thereto) or for determining rights to vote, if any;
(2)in the case of the matters referred to in (c) and (d) above, at least seven (7) Business Days prior written notice of the date when the same will take place (and specifying the date on which the holders of outstanding shares of the Class will be entitled to exchange their shares for the securities or other property deliverable upon the occurrence of such event and such reasonable information as Holder may reasonably require regarding the treatment of this Warrant in connection with such event giving rise to the notice); and
(3)with respect to the IPO, at least seven (7) Business Days prior written notice of the date on which the Company proposes to make the first public filing of its registration statement in connection therewith.
4.3 Certain Company Information. The Company will provide such information requested by Holder from time to time, within a reasonable time following each such request, that is reasonably necessary to enable Holder to comply with Holder’s accounting or reporting requirements. Prior to the IPO, such information may
include, but shall not be limited to, the Company’s then-current summary capitalization table, the price per share for which the Company most recently prior thereto sold or issued shares of its convertible preferred stock to investors for cash in a bona fide equity financing of the Company, and the Company’s most recent 409A Valuation.
SECTION 5. REPRESENTATIONS AND COVENANTS OF HOLDER.
Holder represents and warrants to, and agrees with, the Company as follows:
5.1 Investment Representations.
(a) Purchase for Own Account. Except for a potential Affiliate Transfer (as hereinafter defined), this Warrant and the Shares to be acquired upon exercise hereof are being acquired for investment for Holder’s account, not as a nominee or agent, and not with a view to the public resale or distribution within the meaning of the Act. Holder also represents that it has not been formed for the specific purpose of acquiring this Warrant or the Shares.
(b) Disclosure of Information. Holder is aware of the Company’s business affairs and financial condition and has received or has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect to the acquisition of this Warrant and its underlying securities. Holder further has had an opportunity to ask questions of and receive answers from the Company regarding the terms and conditions of the offering of this Warrant and its underlying securities and to obtain additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to Holder or to which Holder has access.
(c) Investment Experience. Holder understands that the purchase of this Warrant and its underlying securities involves substantial risk. Holder has experience as an investor in securities of companies in the development stage and acknowledges that Holder can bear the economic risk of such Holder’s investment in this Warrant and its underlying securities for an indefinite period of time, and has such knowledge and experience in financial or business matters that Holder is capable of evaluating the merits and risks of its investment in this Warrant and its underlying securities and/or has a preexisting personal or business relationship with the Company and certain of its officers, directors or controlling persons of a nature and duration that enables Holder to be aware of the character, business acumen and financial circumstances of such persons.
(d) Accredited Investor Status. Holder is an “accredited investor” within the meaning of Regulation D promulgated under the Act.
(e) The Act. Holder understands that this Warrant and the Shares issuable upon exercise hereof have not been registered under the Act or registered or qualified under the securities laws of any state, and are issued in reliance upon specific exemptions therefrom, which exemptions depend upon, among other things, the bona fide nature of the Holder’s investment intent as expressed herein. Holder understands that the Company is under no obligation to so register or qualify this Warrant, the Shares or such other securities. Holder understands that this Warrant and the Shares issued upon any exercise hereof are “restricted securities” under applicable federal and state securities laws and must be held indefinitely unless subsequently registered under the Act and registered or qualified under applicable state securities laws, or unless exemptions from such registration and qualification are otherwise available. Holder is aware of the provisions of Rule 144 promulgated under the Act.
5.2 No Stockholder Rights. Without limiting any provision of this Warrant, Holder agrees that as a Holder of this Warrant it will not have any rights (including, but not limited to, voting rights) as a stockholder of the Company with respect to the Shares issuable hereunder unless and until the exercise of this Warrant and then only with respect to the Shares issued on such exercise.
5.3 Market Stand-off Agreement. Holder agrees that the Shares shall be subject to the Market Standoff provisions in Section 2.11 of the Company’s Investors’ Rights Agreement, dated July 7, 2023, by and among the Company and the investors listed therein, as amended and in effect from time to time.
5.4 Stockholder Agreements. Following any exercise of this Warrant and solely with respect to the Shares issued thereupon, if the Company so requests in writing, Holder shall become a party to the Company’s then-effective right of first refusal and co-sale agreement, voting agreement and/or each other agreement entered into among the Company and holders of the outstanding shares of the Class, each as may be amended and in effect from time to time (collectively, the “Stockholder Agreements”), by execution and delivery to the Company of a counterpart signature page, joinder agreement, instrument of accession or similar instrument, provided that such Stockholder Agreement is by its terms in force and effect at the time of such exercise. If the foregoing condition is met, then effective upon such exercise, Holder shall automatically become bound by, and the Shares issued upon such exercise shall automatically become subject to, such Stockholder Agreements.
5.5 Confidential Information. Holder agrees to treat and hold all information provided by the Company pursuant to this Warrant in confidence in accordance with the provisions of Section 11.8 of the Loan Agreement (regardless of whether the Loan Agreement shall then be in effect).
SECTION 6. MISCELLANEOUS.
6.1 Term; Automatic Cashless Exercise Upon Expiration.
(a) Term. Subject to the provisions of Section 2.6 above, this Warrant is exercisable in whole or in part at any time and from time to time on or before 6:00 PM, Pacific time, on the expiration date set forth on Schedule I hereto (the “Expiration Date”) and shall be void thereafter; provided that if the Company does not deliver to Holder written confirmation of the fair market value of a Share pursuant to Section 6.1(b) below, then the Expiration Date shall automatically be extended until the earlier to occur of (i) such date as the Company delivers such written confirmation and (ii) one (1) year after the Expiration Date.
(b) Automatic Cashless Exercise upon Expiration. In the event that, upon the Expiration Date, the fair market value of one Share as determined in accordance with Section 2.3 above is greater than the Exercise Price in effect on such date, then this Warrant shall automatically be deemed on and as of such date to be exercised pursuant to Section 2.2 above as to all Shares for which it shall not previously have been exercised, and the Company shall, within a reasonable time following Holder’s written request, deliver a certificate, which may be in electronic form (or, in the case of uncertificated securities, provide notice of book entry) representing the Shares issued to Holder upon such exercise. If shares of the Class are not then traded in a Trading Market, the Company shall deliver to Holder, prior to the Expiration Date, written confirmation of the fair market value of a Share (as determined pursuant to Section 2.3 above) to be used in determining whether this Warrant shall automatically exercise on the Expiration Date pursuant to this Section 6.1(b).
6.2 Legends. Each certificate or notice of book entry evidencing Shares shall be imprinted with a legend in substantially the following form (together with such additional legends as may be required by the Charter Documents or under any Stockholder Agreement (to the extent Holder is then a party thereto or otherwise subject thereto in accordance with the provisions of Section 5.4 above)):
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AS SET FORTH IN THAT CERTAIN WARRANT TO PURCHASE STOCK ISSUED BY THE ISSUER TO HERCULES VENTURE GROWTH CREDIT OPPORTUNITIES FUND 1 L.P. DATED DECEMBER __, 2025, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND LAWS OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER, SUCH OFFER, SALE, PLEDGE OR OTHER TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
And, if then applicable, a legend in substantially the following form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY AND RESALE, INCLUDING A LOCK-UP PERIOD AFTER THE EFFECTIVE DATE OF THE ISSUER’S REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AS SET FORTH IN THAT CERTAIN WARRANT TO PURCHASE STOCK ISSUED BY THE ISSUER TO HERCULES VENTURE GROWTH CREDIT OPPORTUNITIES FUND 1 L.P. DATED DECEMBER __, 2025, A COPY OF WHICH MAY BE OBTAINED AT THE ISSUER’S PRINCIPAL OFFICE. SUCH RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SECURITIES.
6.3 Compliance with Securities Laws on Transfer. This Warrant and the Shares issued upon exercise hereof may not be transferred or assigned in whole or in part except in compliance with applicable federal and state securities laws by the transferor and the transferee (including, without limitation, the delivery of investment representation letters and legal opinions reasonably satisfactory to the Company, as reasonably requested by the Company). The Company shall not require Holder to provide an opinion of counsel if the transfer is to an affiliate of Holder, provided that such affiliate is an “accredited investor” as defined in Regulation D promulgated under the Act.
6.4 Transfer Procedure. After receipt by Hercules Capital, Inc. of this Warrant, it may transfer this Warrant to an affiliate (an “Affiliate Transfer”) without any separate assignment or transfer agreement and without notice to the Company. By its acceptance of this Warrant, the transferee in an Affiliate Transfer, on and as of the date of such transfer, hereby makes to the Company each of the representations and warranties set forth in Section 5.1 hereof and agrees to be bound by all of the terms and conditions of this Warrant as if it were the original Holder hereof. No surrender or reissuance of this Warrant shall be required in connection with an Affiliate Transfer. Subject to the foregoing and to the provisions of 6.3, Holder may transfer all or part of this Warrant or the Shares issued upon exercise hereof to any transferee; provided that in connection with any such transfer, Holder will give the Company notice of the portion of the Warrant and/or Shares being transferred with the name, address and taxpayer identification number of the transferee, and Holder will surrender this Warrant, or the certificates or other evidence of such Shares, to the Company for reissuance to the transferee(s) (and to Holder if applicable); and provided further, that any transferee shall make substantially the representations set forth in Section 5.1 above and shall agree in writing with the Company to be bound by all of the terms and conditions of this Warrant; and provided further, that the transfer of any shares issued on exercise hereof (or on conversion of such shares, if any) shall be subject to the provisions of the Charter Documents, and of the Stockholder Agreements to the extent Holder is then a party thereto or otherwise subject thereto in accordance with the provisions of Section 5.4 above. Notwithstanding any contrary provision herein, at all times prior to the IPO, Holder may not, without the Company’s prior written consent, transfer this Warrant or any portion hereof, or any Shares issued upon any exercise hereof to any person or entity who directly competes with the Company (as determined by the Company’s Board of Directors in its reasonable good faith judgment), except in connection with an Acquisition of the Company by such a direct competitor.
6.5 Notices. All notices and other communications hereunder from the Company to Holder, or vice versa, shall be deemed delivered and effective (i) when given personally, (ii) on the third (3rd) Business Day after being mailed by first-class registered or certified mail, postage prepaid, (iii) upon transmission if given by electronic mail, provided that if such notice or other communication is not sent during the normal business hours of the recipient, it shall be deemed to have been sent at the opening of business on the next Business Day of the recipient, or (iv) on the first Business Day following delivery to a reliable overnight courier service, courier fee prepaid, in any case at such address as may have been furnished to the Company or Holder, as the case may be, in writing by the Company or such Holder from time to time in accordance with the provisions of this Section 6.5. All notices to Holder shall be addressed as set forth on Schedule I hereto (the “Holder Notice Address”) until the Company receives notice of a change of address in connection with a transfer or otherwise. All notices to the Company shall be addressed as set forth on Schedule I hereto (the “Company Notice Address”) until Holder receives notice of a change in address.
6.6 Amendment and Waiver. Notwithstanding any contrary provision herein or in the Loan Agreement, this Warrant may be amended and any provision hereof waived (either generally or in a particular instance and either retroactively or prospectively) only by an instrument in writing signed by the Company and Holder.
6.7 Counterparts; Electronic Signatures; Status as Certificated Security. This Warrant may be executed by one or more of the parties hereto in any number of separate counterparts, all of which together shall constitute one and the same instrument. The Company, Holder and any other party hereto may execute this Warrant by electronic means and each party hereto recognizes and accepts the use of electronic signatures and the keeping of records in electronic form by any other party hereto in connection with the execution and storage hereof. To the extent that this Warrant or any agreement subject to the terms hereof or any amendment hereto is executed, recorded or delivered electronically, it shall be binding to the same extent as though it had been executed on paper with an original ink signature, as provided under applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act. The fact that this Warrant is executed, signed, stored or delivered electronically shall not prevent the transfer by any Holder of this Warrant pursuant to Section 6.4 or the enforcement of the terms hereof. To the extent that the original of this Warrant is an electronic original, this Warrant, and any copies hereof, shall NOT be deemed to be a “certificated security” within the meaning of Section 8102(a)(4) of the California Commercial Code. Physical possession of the original of this Warrant or any paper copy thereof shall confer no special status to the bearer thereof.
6.8 Headings. The headings in this Warrant are for purposes of reference only and shall not limit or otherwise affect the meaning of any provision of this Warrant.
6.9 Business Days. “Business Day” means any day that is not a Saturday, Sunday or a day on which banks in California are closed.
SECTION 7. GOVERNING LAW, VENUE AND JURY TRIAL WAIVER.
7.1 Governing Law. This Warrant shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles regarding conflicts of law.
7.2 Jurisdiction and Venue. The Company and Holder each irrevocably and unconditionally submit to the exclusive jurisdiction of the State and Federal courts in New York County, New York; provided, however, that nothing in this Warrant shall be deemed to operate to preclude Holder from bringing suit or taking other legal action in any other jurisdiction to enforce a judgment or other court order in favor of Holder. The Company expressly, irrevocably and unconditionally submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and the Company hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby irrevocably and unconditionally consents to the granting of such legal or equitable relief as is deemed appropriate by such court. The Company hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to the Company in accordance with Section 6.5 of this Warrant and that service so made shall be deemed completed upon the earlier to occur of the Company’s actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.
7.3 Jury Trial Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND HOLDER EACH WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS WARRANT, THE LOAN AGREEMENT OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES’ AGREEMENT TO THIS WARRANT. EACH PARTY HERETO HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
7.4 Survival. This Section 7 shall survive the termination of this Warrant.
[Signature page follows]
IN WITNESS WHEREOF, the parties have caused this Warrant To Purchase Stock to be executed by their duly authorized representatives effective as of the Issue Date written above.
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APPENDIX 1
Form of Notice of Exercise of Warrant
1. The undersigned Holder hereby exercises its right to purchase ___________ shares of the [Common] / [Series ______ Preferred] [circle one] Stock of __________________ (the “Company”) in accordance with the attached Warrant To Purchase Stock, and tenders payment of the aggregate Exercise Price for such shares as follows:
[ ] Check in the amount of $________ payable to order of the Company enclosed herewith
[ ] Wire transfer of immediately available funds to the Company’s account
[ ] Cashless exercise pursuant to Section 2.2 of the Warrant, resulting in the issuance of __________________ shares of the [Common] / [Series ______ Preferred] [circle one] Stock of the Company
[ ] Other [Describe] __________________________________________
2. Please issue a certificate or certificates (or evidence of book entry) representing the Shares in the name specified below:
3. By its execution below and for the benefit of the Company, Holder hereby makes each of the representations and warranties set forth in Section 5.1 of the Warrant To Purchase Stock as of the date hereof.
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APPENDIX 2
TRANSFER NOTICE
FOR VALUE RECEIVED, that certain Warrant to Purchase Stock, dated as of December __, 2025, between Hawkeye 360, Inc., as the Company, and Hercules Venture Growth Credit Opportunities Fund 1 L.P., as Holder (the “Warrant”), and all rights evidenced thereby, are hereby transferred and assigned to
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NOTE: The signature to this Transfer Notice must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.
APPENDIX 3
Company Capitalization Table
See attached
HAWKEYE 360, INC.
2015 STOCK INCENTIVE PLAN
1. Establishment, Purpose and Types of Awards
HAWKEYE 360, INC., a Delaware corporation (the “Company”), hereby establishes the HAWKEYE 360, INC. 2015 STOCK INCENTIVE PLAN (the “Plan”). The purpose of the Plan is to promote the long-term growth and profitability of the Company by (i) providing key people with incentives to improve stockholder value and to contribute to the growth and financial success of the Company through their future services, and (ii) enabling the Company to attract, retain and reward the best-available persons.
The Plan permits the granting of stock options (including incentive stock options qualifying under Section 422 of the Code and nonstatutory stock options), stock appreciation rights, restricted or unrestricted stock awards, phantom stock, restricted stock units, performance awards, other stock-based awards, or any combination of the foregoing.
2. Definitions
Under this Plan, except where the context otherwise indicates, the following definitions apply:
(a) “Administrator” means the Board or the committee(s) or officer(s) appointed by the Board that have authority to administer the Plan as provided in Section 3 hereof.
(b) “Affiliate” means any entity, whether now or hereafter existing, which controls, is controlled by, or is under common control with, the Company (including, but not limited to, joint ventures, limited liability companies, and partnerships). For this purpose, “control” shall mean ownership of 50% or more of the total combined voting power or value of all classes of stock or interests of the entity, or the power to direct the management and policies of the entity, by contract or otherwise.
(c) “Award” means any stock option, stock appreciation right, stock award, phantom stock award, restricted stock unit award, performance award, or other stock-based award.
(d) “Board” means the Board of Directors of the Company.
(e) “Change in Control” means: (i) the acquisition (other than from the Company) in one or more transactions by any Person, as defined in this Section 2(e), of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) of 90% or more of (A) the then outstanding shares of the securities of the Company, or (B) the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors (the “Company Voting Stock”); (ii) the closing of a sale, lease, transfer or other disposition of all or substantially all of the assets of the Company; or (iii) the effective time of any merger, share exchange, consolidation, or other business combination involving the Company if immediately after such transaction persons who hold a majority of the outstanding voting securities entitled to vote generally in the election of directors of the surviving entity (or the entity owning 100% of such surviving entity) are not persons who, immediately prior to such transaction, held the Company Voting Stock; provided, however, that a Change in Control shall not include (W) any consolidation or merger effected exclusively to change the domicile of the Company, (X) any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or indebtedness of the Company is cancelled or converted or a combination thereof, (Y) a public offering of capital stock of the Company provided, however, that for purposes of any Award or subplan that constitutes a “nonqualified deferred compensation plan,” within the meaning of Section 409A of the Code, the Administrator, in its discretion, may specify a different definition of Change in Control in order to comply with or cause an Award to be exempt from the provisions of Section 409A of the Code. For purposes of this Section 2(e), a “Person” means any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended, other than: employee benefit plans sponsored or maintained by the Company and by entities controlled by the Company or an underwriter of the Common Stock in a registered public offering.
(f) “Code” means the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder.
(g) “Common Stock” means shares of common stock of the Company, par value of $0.0001 per share.
(h) “Fair Market Value” means, with respect to the Common Stock, as of any date:
(i) if the principal market for the Common Stock (as determined by the Administrator if the Common Stock is listed or admitted to trading on more than one exchange or market) is a national securities exchange or an established securities market, the official closing price per share of Common Stock for the regular market session on that date on the principal exchange or market on which the Common Stock is then listed or admitted to trading or, if no sale is reported for that date, on the last preceding day for which a sale was reported;
(ii) if the principal market for the Common Stock is not a national securities exchange or an established securities market, the average of the highest bid and lowest asked prices for the Common Stock on that date as reported on a national quotation system or, if no prices are reported for that date, on the last preceding day for which prices were reported; or
(iii) if the Common Stock is neither listed or admitted to trading on a national securities exchange or an established securities market, nor quoted by a national quotation system, the value determined by the Administrator in good faith by the reasonable application of a reasonable valuation method.
(i) “Grant Agreement” means a written document, including an electronic writing acceptable to the Administrator, memorializing the terms and conditions of an Award granted pursuant to the Plan and which shall incorporate the terms of the Plan.
3. Administration
(a) Administration of the Plan. The Plan shall be administered by the Board or by such committee or committees as may be appointed by the Board from time to time. To the extent allowed by applicable state law, the Board by resolution may authorize an officer or officers to grant Awards (other than stock Awards) to other officers and employees of the Company and its Affiliates, and, to the extent of such authorization, such officer or officers shall be the Administrator.
(b) Powers of the Administrator. The Administrator shall have all the powers vested in it by the terms of the Plan, such powers to include authority, in its sole and absolute discretion, to grant Awards under the Plan, prescribe Grant Agreements evidencing such Awards and establish programs for granting Awards.
The Administrator shall have full power and authority to take all other actions necessary to carry out the purpose and intent of the Plan, including, but not limited to, the authority to: (i) determine the eligible persons to whom, and the time or times at which Awards shall be granted; (ii) determine the types of Awards to be granted; (iii) determine the number of shares to be covered by or used for reference purposes for each Award; (iv) impose such terms, limitations, restrictions and conditions upon any such Award as the Administrator shall deem appropriate; (v) modify, amend, extend or renew outstanding Awards, or accept the surrender of outstanding Awards and substitute new Awards; provided, however, that, except as otherwise permitted under Section 7(d) of the Plan, any modification, amendment, extension,
renewal or substitution that would materially adversely affect any outstanding Award shall not be made without the consent of the holder (but if any of the foregoing actions results in a change in the tax consequences with respect to an Award such change shall not be considered to be a material adverse effect on the Award); (vi) accelerate or otherwise change the time in which an Award may be exercised or becomes payable and to waive or accelerate the lapse, in whole or in part, of any restriction or condition with respect to such Award, including, but not limited to, any restriction or condition with respect to the vesting or exercisability of an Award following termination of any grantee’s employment or other relationship with the Company; (vii) establish objectives and conditions, if any, for earning Awards and determining whether Awards will be paid with respect to a performance period; and (viii) for any purpose, including but not limited to, qualifying for preferred tax treatment under foreign tax laws or otherwise complying with the regulatory requirements of local or foreign jurisdictions, to establish, amend, modify, administer or terminate sub-plans, and prescribe, amend and rescind rules and regulations relating to such sub-plans.
The Administrator shall have full power and authority, in its sole and absolute discretion, to administer, construe and interpret the Plan, Grant Agreements and all other documents relevant to the Plan and Awards issued thereunder, to establish, amend, rescind and interpret such rules, regulations, agreements, guidelines and instruments for the administration of the Plan and for the conduct of its business as the Administrator deems necessary or advisable, and to correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any Award in the manner and to the extent the Administrator shall deem it desirable to carry it into effect.
(c) Non-Uniform Determinations. The Administrator’s determinations under the Plan (including without limitation, determinations of the persons to receive Awards, the form, amount and timing of such Awards, the terms and provisions of such Awards including the Grant Agreements evidencing such Awards, and the treatment of Awards in a Change in Control) need not be uniform and may be made by the Administrator selectively among Awards or persons who receive, or are eligible to receive, Awards under the Plan, whether or not such persons are similarly situated.
(d) Limited Liability. To the maximum extent permitted by law, no member of the Administrator shall be liable for any action taken or decision made in good faith relating to the Plan or any Award thereunder.
(e) Indemnification. To the maximum extent permitted by law and by the Company’s charter and by-laws, the members of the Administrator shall be indemnified by the Company in respect of all their activities under the Plan.
(f) Effect of Administrator’s Decision. All actions taken and decisions and determinations made by the Administrator on all matters relating to the Plan pursuant to the powers vested in it hereunder shall be in the Administrator’s sole and absolute discretion and shall be conclusive and binding on all parties concerned, including the Company, its stockholders, any participants in the Plan and any other employee, consultant, or director of the Company, and their respective successors in interest.
4. Shares Available for the Plan
Subject to adjustments as provided in Section 7(d) of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 1,000,000 shares of Common Stock. The Company shall reserve such number of shares for Awards under the Plan, subject to adjustments as provided in Section 7(d) of the Plan. If any Award, or portion of an Award, under the Plan expires or terminates unexercised, becomes unexercisable, is settled in cash without delivery of shares of Common Stock, or is forfeited or otherwise terminated, surrendered or canceled as to any shares, or if any shares of Common Stock are repurchased by or surrendered to the Company in connection with any Award (whether or not such surrendered shares were acquired pursuant to any Award), or if any shares are withheld by the Company, the shares subject to
such Award and the repurchased, surrendered and withheld shares shall thereafter be available for further Awards under the Plan.
5. Participation
Participation in the Plan shall be open to all employees, officers, and directors of, and other individuals providing bona fide services to or for, the Company, or of any Affiliate of the Company, as may be selected by the Administrator from time to time. The Administrator may also grant Awards to individuals in connection with hiring, recruiting or otherwise, prior to the date the individual first performs services for the Company or an Affiliate, provided that such Awards shall not become vested or exercisable, and no shares shall be issued to such individual, prior to the date the individual first commences performance of such services.
6. Awards
The Administrator, in its sole discretion, establishes the terms of all Awards granted under the Plan. Awards may be granted individually or in tandem with other types of Awards, concurrently with or with respect to outstanding Awards. All Awards are subject to the terms and conditions provided in the Grant Agreement.
(a) Stock Options. The Administrator may from time to time grant to eligible participants Awards of incentive stock options as that term is defined in Section 422 of the Code or nonstatutory stock options; provided, however, that Awards of incentive stock options shall be limited to employees of the Company or of any current or hereafter existing “parent corporation” or “subsidiary corporation,” as defined in Sections 424(e) and (f) of the Code, respectively, of the Company and any other individuals who are eligible to receive incentive stock options under the provisions of Section 422 of the Code. Options intended to qualify as incentive stock options under Section 422 of the Code must have an exercise price at least equal to Fair Market Value as of the date of grant. Nonstatutory stock options may be granted with an exercise price less than Fair Market Value only if they are drafted to comply with Section 409A of the Code. Options may not have a term in excess of ten years’ duration. No stock option shall be an incentive stock option unless so designated by the Administrator at the time of grant or in the Grant Agreement evidencing such stock option.
(b) Stock Appreciation Rights. The Administrator may from time to time grant to eligible participants Awards of Stock Appreciation Rights (“SAR”). A SAR entitles the grantee to receive, subject to the provisions of the Plan and the Grant Agreement, a payment having an aggregate value equal to the product of (i) the excess of (A) the Fair Market Value on the exercise date of one share of Common Stock over (B) the base price per share specified in the Grant Agreement, times (ii) the number of shares specified by the SAR, or portion thereof, which is exercised. The base price per share specified in the Grant Agreement shall not be less than the lower of the Fair Market Value on the grant date or the exercise price of any tandem stock option Award to which the SAR is related. No SAR shall have a term longer than ten years’ duration. Payment by the Company of the amount receivable upon any exercise of a SAR may be made by the delivery of Common Stock or cash, or any combination of Common Stock and cash, as determined in the sole discretion of the Administrator. If upon settlement of the exercise of a SAR a grantee is to receive a portion of such payment in shares of Common Stock, the number of shares shall be determined by dividing such portion by the Fair Market Value of a share of Common Stock on the exercise date. No fractional shares shall be used for such payment and the Administrator shall determine whether cash shall be given in lieu of such fractional shares or whether such fractional shares shall be eliminated.
(c) Stock Awards. The Administrator may from time to time grant restricted or unrestricted stock Awards to eligible participants in such amounts, on such terms and conditions, and for such consideration, including no consideration or such minimum consideration as may be required by law, as it shall determine. A stock Award may be paid in Common Stock, in cash, or in a combination of Common Stock and cash, as determined in the sole discretion of the Administrator.
(d) Restricted Stock Units. The Administrator may from time to time grant Awards to eligible participants denominated in stock-equivalent units or restricted stock units (“restricted stock units”) in such amounts and on such terms and conditions as it shall determine. Restricted stock units granted to a participant shall be credited to a bookkeeping reserve account solely for accounting purposes and shall not require a segregation of any of the Company’s assets. An Award of restricted stock units may be settled in Common Stock, in cash, or in a combination of Common Stock and cash, as determined in the sole discretion of the Administrator. Except as otherwise provided in the applicable Grant Agreement, the grantee shall not have the rights of a stockholder with respect to any shares of Common Stock represented by a restricted stock unit solely as a result of the grant of a restricted stock unit to the grantee.
(e) Performance Awards. The Administrator may, in its discretion, grant performance awards which become payable on account of attainment of one or more performance goals established by the Administrator. Performance awards may be paid by the delivery of Common Stock or cash, or any combination of Common Stock and cash, as determined in the sole discretion of the Administrator. Performance goals established by the Administrator may be based on the Company’s or an Affiliate’s operating income or one or more other business criteria selected by the Administrator that apply to an individual or group of individuals, a business unit, or the Company or an Affiliate as a whole, over such performance period as the Administrator may designate.
(f) Other Stock-Based Awards. The Administrator may from time to time grant other stock-based awards to eligible participants in such amounts, on such terms and conditions, and for such consideration, including no consideration or such minimum consideration as may be required by law, as it shall determine. Other stock-based awards may be denominated in cash, in Common Stock or other securities, in stock-equivalent units, in stock appreciation units, in securities or debentures convertible into Common Stock, or in any combination of the foregoing and may be paid in Common Stock or other securities, in cash, or in a combination of Common Stock or other securities and cash, all as determined in the sole discretion of the Administrator.
7. Miscellaneous
(a) Withholding of Taxes. Grantees and holders of Awards shall pay to the Company or its Affiliate, or make provision satisfactory to the Administrator for payment of, any taxes required to be withheld in respect of Awards under the Plan no later than the date of the event creating the tax liability. The Company or its Affiliate may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to the grantee or holder of an Award. In the event that payment to the Company or its Affiliate of such tax obligations is made in shares of Common Stock, such shares shall be valued at Fair Market Value on the applicable date for such purposes and shall not exceed in amount the minimum statutory tax withholding obligation.
(b) Loans. To the extent otherwise permitted by law, the Company or its Affiliate may make or guarantee loans to grantees to assist grantees in exercising Awards and satisfying any withholding tax obligations.
(c) Transferability. Except as otherwise determined by the Administrator, and in any event in the case of an incentive stock option or a stock appreciation right granted with respect to an incentive stock option, no Award granted under the Plan shall be transferable by a grantee otherwise than by will or the laws of descent and distribution. Unless otherwise determined by the Administrator in accord with the provisions of the immediately preceding sentence, an Award may be exercised during the lifetime of the grantee, only by the grantee or, during the period the grantee is under a legal disability, by the grantee’s guardian or legal representative.
(d) Adjustments for Corporate Transactions and Other Events.
(i) Stock Dividend, Stock Split and Reverse Stock Split. In the event of a stock dividend of, or stock split or reverse stock split affecting, the Common Stock, (A) the maximum number of shares of such Common Stock as to which Awards may be granted under this Plan, as provided in Section 4 of the Plan, and (B) the number of shares covered by and the exercise price and other terms of outstanding Awards, shall, without further action of the Board, be adjusted to reflect such event. The Administrator may make adjustments, in its discretion, to address the treatment of fractional shares and fractional cents that arise with respect to outstanding Awards as a result of the stock dividend, stock split or reverse stock split.
(ii) Non-Change in Control Transactions. Except with respect to the transactions set forth in Section 7(d)(i), in the event of any change affecting the Common Stock, the Company or its capitalization, by reason of a spin-off, split-up, dividend, recapitalization, merger, consolidation or share exchange, other than any such change that is part of a transaction resulting in a Change in Control of the Company, the Administrator, in its discretion and without the consent of the holders of the Awards, may make (A) appropriate adjustments to the maximum number and kind of shares reserved for issuance or with respect to which Awards may be granted under the Plan, as provided in Section 4 of the Plan; and (B) any adjustments in outstanding Awards, including but not limited to modifying the number, kind and price of securities subject to Awards, as the Administrator determines to be appropriate and equitable.
(iii) Change in Control Transactions. In the event of any transaction resulting in a Change in Control of the Company, outstanding stock options and other Awards that are payable in or convertible into Common Stock under this Plan will terminate upon the effective time of such Change in Control unless provision is made in connection with the transaction for the continuation or assumption of such Awards by, or for the substitution of equivalent awards, as determined in the sole discretion of the Administrator, of, the surviving or successor entity or a parent thereof. In the event of such termination, the Administrator may, in its sole discretion, permit the holders of stock options and other Awards under the Plan, immediately before the Change in Control, to exercise or convert all portions of such stock options or other Awards under the Plan that are then exercisable or convertible or which become exercisable or convertible upon or prior to the effective time of the Change in Control.
The Administrator may, in its sole discretion and without the consent of any Award holder, determine that, upon the occurrence of a Change in Control, each or any Award outstanding immediately prior to the Change in Control and not previously exercised or settled shall be canceled in exchange for a payment with respect to each vested share subject to such canceled Award in (I) cash, (II) stock of the Company or of a corporation or other business entity a party to the Change in Control, or (III) other property which, in any such case, shall be in an amount having a Fair Market Value equal to the Fair Market Value of the consideration to be paid per share in the Change in Control, reduced (but not below zero) by the exercise or purchase price per share, if any, under such Award. In the event such determination is made by the Administrator, an Award having an exercise or purchase price per share equal to or greater than the Fair Market Value of the consideration to be paid per share in the Change in Control may be canceled without payment of consideration to the holder thereof.
If, immediately before the Change in Control, no stock of the Company is readily tradable on an established securities market or otherwise, and the vesting of an Award or Awards pursuant to this Section 7(d)(iii) would be treated as a “parachute payment” (as defined in Section 280G of the Code), then such Award or Awards shall not vest unless the requirements of the shareholder approval exemption of Section 280G(b)(5) of the Code have been satisfied with respect to such Award or Awards.
(iv) Unusual or Nonrecurring Events. The Administrator is authorized to make, in its discretion and without the consent of holders of Awards, adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring events affecting the Company, or the financial statements of the Company or any Affiliate, or of changes in applicable laws, regulations, or accounting principles, whenever the Administrator determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan; provided that no such adjustment shall be made in contravention of Section 409A of the Code with respect to any Award that constitutes a deferred compensation arrangement within the meaning of Section 409A of the Code.
(v) Repricing. The Administrator shall have the authority to approve a program providing for either (I) the cancellation of outstanding options or SARs having exercise prices per share greater than the then Fair Market Value of a share of Common Stock (“Underwater Awards”) and the grant in substitution therefor of new options or SARs covering the same or a different number of shares but with an exercise price per share equal to the Fair Market Value per share on the new grant date or payments in cash, or (II) the amendment of outstanding Underwater Awards to reduce the exercise price thereof to the Fair Market Value per share on the date of amendment.
(e) Substitution of Awards in Mergers and Acquisitions. Awards may be granted under the Plan from time to time in substitution for awards held by employees, officers, consultants or directors of entities who become or are about to become employees, officers, consultants or directors of the Company or an Affiliate as the result of a merger or consolidation of the employing entity with the Company or an Affiliate, or the acquisition by the Company or an Affiliate of the assets or stock of the employing entity. The terms and conditions of any substitute Awards so granted may vary from the terms and conditions set forth herein to the extent that the Administrator deems appropriate at the time of grant to conform the substitute Awards to the provisions of the awards for which they are substituted.
(f) Other Agreements. As a condition precedent to the grant of any Award under the Plan, the exercise pursuant to such an Award, or to the delivery of certificates for shares issued pursuant to any Award, the Administrator may require the grantee or the grantee’s successor or permitted transferee, as the case may be, to become a party to a stock restriction agreement, shareholders’ agreement, voting trust agreement or other agreements regarding the Common Stock of the Company in such form(s) as the Administrator may determine from time to time.
(g) Termination, Amendment and Modification of the Plan. The Board may terminate, amend or modify the Plan or any portion thereof at any time. Except as otherwise determined by the Board, termination of the Plan shall not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Awards granted under the Plan prior to the date of such termination.
(h) Non-Guarantee of Employment or Service. Nothing in the Plan or in any Grant Agreement thereunder shall confer any right on an individual to continue in the service of the Company or shall interfere in any way with the right of the Company to terminate such service at any time with or
without cause or notice and whether or not such termination results in (i) the failure of any Award to vest; (ii) the forfeiture of any unvested or vested portion of any Award; and/or (iii) any other adverse effect on the individual’s interests under the Plan.
(i) Compliance with Securities Laws; Listing and Registration. If at any time the Administrator determines that the delivery of Common Stock under the Plan is or may be unlawful under the laws of any applicable jurisdiction, or Federal, state or foreign securities laws, the right to exercise an Award or receive shares of Common Stock pursuant to an Award shall be suspended until the Administrator determines that such delivery is lawful. If at any time the Administrator determines that the delivery of Common Stock under the Plan would or may violate the rules of the national exchange on which the shares are then listed for trade, the right to exercise an Award or receive shares of Common Stock pursuant to an Award shall be suspended until the Administrator determines that such delivery would not violate such rules. The Company shall have no obligation to effect any registration or qualification of the Common Stock under Federal, state or foreign laws.
The Company may require that a grantee, as a condition to exercise of an Award, and as a condition to the delivery of any share certificate, make such written representations (including representations to the effect that such person will not dispose of the Common Stock so acquired in violation of Federal, state or foreign securities laws) and furnish such information as may, in the opinion of counsel for the Company, be appropriate to permit the Company to issue the Common Stock in compliance with applicable Federal, state or foreign securities laws. The stock certificates for any shares of Common Stock issued pursuant to this Plan may bear a legend restricting transferability of the shares of Common Stock unless such shares are registered or an exemption from registration is available under the Securities Act of 1933, as amended, and applicable state or foreign securities laws.
(j) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a grantee or any other person. To the extent that any grantee or other person acquires a right to receive payments from the Company pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company.
(k) Governing Law. The validity, construction and effect of the Plan, of Grant Agreements entered into pursuant to the Plan, and of any rules, regulations, determinations or decisions made by the Administrator relating to the Plan or such Grant Agreements, and the rights of any and all persons having or claiming to have any interest therein or thereunder, shall be determined exclusively in accordance with applicable federal laws and the laws of the State of Delaware, without regard to its conflict of laws principles.
(l) 409A Savings Clause. The Plan and all Awards granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Code. The Plan and all Awards granted under the Plan shall be administered, interpreted, and construed in a manner consistent with Section 409A of the Code to the extent necessary to avoid the imposition of additional taxes under Section 409A(a)(1)(B) of the Code. Should any provision of the Plan, any Grant Agreement, or any other agreement or arrangement contemplated by the Plan be found not to comply with, or otherwise be exempt from, the provisions of Section 409A of the Code, such provision shall be modified and given effect (retroactively if necessary), in the sole discretion of the Administrator, and without the consent of the holder of the Award, in such manner as the Administrator determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of the Code. Notwithstanding anything in the Plan to the contrary, in no event shall the Administrator exercise its discretion to accelerate the payment or settlement of an Award where such payment or settlement constitutes deferred compensation within the meaning of Section 409A of the Code unless, and solely to the extent that, such accelerated payment or settlement is permissible under Treasury Regulation section 1.409A-3(j)(4) or any successor provision. Notwithstanding any provision of the Plan or any Grant Agreement, the Company makes no representation that Awards shall be
exempt from or comply with Section 409A of the Code. Neither the Company nor any Affiliate shall be liable for any tax, penalty or interest imposed on an Award recipient by Section 409A of the Code.
(m) Effective Date; Termination Date. The Plan is effective as of the date on which the Plan is adopted by the Board, subject to approval of the stockholders within twelve months before or after such date. No Award shall be granted under the Plan after the close of business on the day immediately preceding the tenth anniversary of the effective date of the Plan, or if earlier, the tenth anniversary of the date this Plan is approved by the stockholders. Subject to other applicable provisions of the Plan, all Awards made under the Plan prior to such termination of the Plan shall remain in effect until such Awards have been satisfied or terminated in accordance with the Plan and the terms of such Awards.
***
PLAN APPROVAL
Date Approved by the Board: September 16, 2015
Date Approved by the Stockholders: September 16, 2015
APPENDIX A
PROVISIONS FOR CALIFORNIA RESIDENTS
With respect to Awards granted to California residents prior to a public offering of capital stock of the Company that is effected pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933, as amended, and only to the extent required by applicable law, the following provisions shall apply notwithstanding anything in the Plan or a Grant Agreement to the contrary:
1. With respect to any Award granted in the form of a stock option pursuant to Section 6(a) of the Plan: (a) The exercise period shall be no more than 120 months from the date the option is granted. (b)The options shall be non-transferable other than by will, by the laws of descent and distribution, or, if and to the extent permitted under the Grant Agreement, to a revocable trust or as permitted by Rule 701 of the Securities Act of 1933, as amended (17 C.F.R. 230.701). (c) Unless employment is terminated for “cause” as defined by applicable law, the terms of the Plan or Grant Agreement, or a contract of employment, the right to exercise the option in the event of termination of employment, to the extent that the Award recipient is entitled to exercise on the date employment terminates, will continue until the earlier of the option expiration date, or: (1) At least 6 months from the date of termination if termination was caused by death or disability. (2) At least 30 days from the date of termination if termination was caused by other than death or disability.
2. With respect to an Award, granted pursuant to Section 6(c) of the Plan, that provides the Award recipient the right to purchase stock, the Award shall be non-transferable other than by will, by the laws of descent and distribution, or, if and to the extent permitted under the Grant Agreement, to a revocable trust or as permitted by Rule 701 of the Securities Act of 1933, as amended (17 C.F.R. 230.701).
3. The Plan shall have a termination date of not more than 10 years from the date the Plan is adopted by the Board or the date the Plan is approved by the security holders, whichever is earlier.
4. Security holders representing a majority of the Company’s outstanding securities entitled to vote must approve the Plan by the later of (a) 12 months after the date the Plan is adopted or (b) 12 months after the granting of any Award to a resident of California. Any option exercised or any securities purchased before security holder approval is obtained must be rescinded if security holder approval is not obtained within the period described in the preceding sentence. Such securities shall not be counted in determining whether such approval is obtained.
5. The Company will provide financial statements to each Award recipient annually during the period such individual has Awards outstanding, or as otherwise required under Section 260.140.46 of Title 10 of the California Code of Regulations. Notwithstanding the foregoing, the Company will not be required to provide such financial statements to Award recipients when the Plan complies with all conditions of Rule 701 of the Securities Act of 1933, as amended (17 C.F.R. 230.701); provided that for purposes of determining such compliance, any registered domestic partner shall be considered a “family member” as that term is defined in Rule 701.
6. The Plan is intended to comply with Section 25102(o) of the California Corporations Code. Any provision of this Plan which is inconsistent with Section 25102(o), including without limitation any provision of this Plan that is more restrictive than would be permitted by Section 25102(o) as amended from time to time, shall, without further act or amendment by the Board, be reformed to comply with the provisions of Section 25102(o). If at any time the Administrator determines that the delivery of Common Stock under the Plan is or may be unlawful under the laws of any applicable jurisdiction, or federal or state securities laws, the right to exercise an Award or receive shares of Common Stock pursuant to an Award shall be suspended until the Administrator determines that such delivery is lawful. The Company shall have no obligation to effect any registration or qualification of the Common Stock under federal or state laws.
Grant No.:
INCENTIVE STOCK OPTION AGREEMENT
UNDER THE
HAWKEYE 360, INC. 2015 STOCK INCENTIVE PLAN
1.Terminology. Capitalized terms used in this Agreement are defined in the correlating Stock Option Notice, the Plan and/or the Glossary at the end of this Agreement.
2.Exercise of Options.
(a)Exercisability. The Options will become exercisable in accordance with the Exercisability Schedule set forth in the Stock Option Notice, so long as you are in the Service of the Company from the Grant Date through the applicable exercisability dates. None of the Options will become exercisable after your Service with the Company ceases, unless the Stock Option Notice provides otherwise with respect to exercisability that arises as a result of your cessation of Service.
(b)Right to Exercise. You may exercise the Options, to the extent exercisable, at any time on or before 5:00 P.M. Eastern Time on the Expiration Date or the earlier termination of the Options, unless otherwise provided under applicable law. Notwithstanding the foregoing, if at any time the Administrator determines that the delivery of Shares under the Plan or this Agreement is or may be unlawful under the laws of any applicable jurisdiction, or Federal, state or foreign securities laws, the right to exercise the Options or receive Shares pursuant to the Options shall be suspended until the Administrator determines that such delivery is lawful. If at any time the Administrator determines that the delivery of Shares under the Plan or this Agreement is or may violate the rules of the national securities exchange on which the shares are then listed for trade, the right to exercise the Options or receive Shares pursuant to the Options shall be suspended until the Administrator determines that such exercise or delivery would not violate such rules. Section 3 below describes certain limitations on exercise of the Options that apply in the event of your death, Total and Permanent Disability, or termination of Service. The Options may be exercised only in multiples of whole Shares and may not be exercised at any one time as to fewer than one hundred Shares (or such lesser number of Shares as to which the Options are then exercisable). No fractional Shares will be issued under the Options.
(c)Exercise Procedure. In order to exercise the Options, you must provide the following items to the Secretary of the Company or his or her delegate before the expiration or termination of the Options:
(i)notice, in such manner and form as the Administrator may require from time to time, specifying the number of Shares to be purchased under the Options;
(ii)full payment of the Exercise Price for the Shares or properly executed, irrevocable instructions, in such manner and form as the Administrator may require from time to time, to effectuate a broker-assisted cashless exercise, each in accordance with Section 2(d) of this Agreement; and
(iii)an executed copy of any other agreements requested by the Administrator pursuant to Section 2(e) of this Agreement.
An exercise will not be effective until the Secretary of the Company or his or her delegate receives all of the foregoing items, and such exercise otherwise is permitted under and complies with all applicable federal, state and foreign securities laws. Notwithstanding the foregoing, if the Administrator permits payment by means of delivering properly executed, irrevocable instructions, in such manner and form as
the Administrator may require from time to time, to effectuate a broker-assisted cashless exercise and such instructions provide for sale of Shares under a limit order rather than at the market, the exercise will not be effective until the earlier of the date the Company receives delivery of cash or cash equivalents in full payment of the Exercise Price or the date the Company receives confirmation from the broker that the sale instruction has been fulfilled, and the exercise will not be effective unless the earlier of such dates occurs on or before termination of the Options.
(d)Method of Payment. You may pay the Exercise Price by:
(i)delivery of cash, certified or cashier’s check, money order or other cash equivalent acceptable to the Administrator in its discretion;
(ii)a broker-assisted cashless exercise in accordance with Regulation T of the Board of Governors of the Federal Reserve System through a brokerage firm designated or approved by the Administrator;
(iii)subject to such limits as the Administrator may impose from time to time, tender (via actual delivery or attestation) to the Company of other shares of Common Stock of the Company which have a Fair Market Value on the date of tender equal to the Exercise Price;
(iv)subject to such limits as the Administrator may impose from time to time, net share settlement with respect to any portions of the Options that do not qualify as incentive stock options within the meaning of Code section 422;
(v)any other method approved by the Administrator; or
(vi)any combination of the foregoing.
(e)Agreement to Execute Other Agreements. You agree to execute, as a condition precedent to the exercise of the Options and at any time thereafter as may reasonably be requested by the Administrator, a Stock Restriction Agreement substantially in the form, and containing the terms and provisions, of the Stock Restriction Agreement attached hereto as Exhibit A, with respect to any shares you acquire pursuant to this Agreement; provided, however, that execution of the Stock Restriction Agreement will not be required upon any exercise that occurs after the closing of the first public offering of capital stock of the Company that is effected pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933 (the “IPO”) or, if later, the expiration of any market stand-off agreement that applies to other stockholders of the Company respecting such public offering of capital stock.
(f)Issuance of Shares upon Exercise. The Company shall issue to you the Shares underlying the Options you exercise as soon as practicable after the exercise date, subject to the Company’s receipt of the aggregate exercise price and the requisite withholding taxes, if any. Upon issuance of such Shares, the Company may deliver, subject to the provisions of Section 7 below, such Shares on your behalf electronically to the Company’s designated stock plan administrator or such other broker-dealer as the Company may choose at its sole discretion, within reason, or may retain such Shares in uncertificated book-entry form. Any share certificates delivered will, unless the Shares are registered or an exemption from registration is available under applicable federal and state law, bear a legend restricting transferability of such Shares and referencing any applicable Stock Restriction Agreement.
3.Termination of Service.
(a)Termination of Unexercisable Options. If your Service with the Company ceases for any reason, the Options that are then unexercisable, after giving effect to any exercise acceleration provisions set forth on the Stock Option Notice, will terminate immediately upon such cessation.
(b)Exercise Period Following Termination of Service. If your Service with the Company ceases for any reason other than discharge for Cause, the Options that are then exercisable, after giving effect to any exercise acceleration provisions set forth on the Stock Option Notice, will terminate upon the earliest of:
(i)the expiration of 90 days following such cessation, if your Service ceases on account of (1) your termination by the Company other than a discharge for Cause, or (2) your voluntary termination other than for Total and Permanent Disability or death;
(ii)the expiration of 12 months following such cessation, if your Service ceases on account of your Total and Permanent Disability or death;
(iii)the expiration of 12 months following your death, if your death occurs during the periods described in clauses (i) or (ii) of this Section 3(b), as applicable; or
(iv)the Expiration Date.
In the event of your death, the exercisable Options may be exercised by your executor, personal representative, or the person(s) to whom the Options are transferred by will or the laws of descent and distribution.
(c)Misconduct. The Options will terminate in their entirety, regardless of whether the Options are then exercisable, immediately upon your discharge from Service for Cause, or upon your commission of any of the following acts during the exercise period following your termination of Service: (i) fraud on or misappropriation of any funds or property of the Company, or (ii) your breach of any provision of any employment, non-disclosure, non-competition, non-solicitation, assignment of inventions, or other similar agreement executed by you for the benefit of the Company, as determined by the Administrator, which determination will be conclusive.
(d)Changes in Status. If you cease to be a “common law employee” of the Company but you continue to provide bona fide services to the Company following such cessation in a different capacity, including without limitation as a director, consultant or independent contractor, then a termination of Service shall not be deemed to have occurred for purposes of this Section 3 upon such change in capacity. Notwithstanding the foregoing, the Options shall not be treated as incentive stock options within the meaning of Code section 422 with respect to any exercise that occurs more than three months after such cessation of the common law employee relationship (except as otherwise permitted under Code section 421 or 422). In the event that your Service is with a business, trade or entity that, after the Grant Date, ceases for any reason to be part or an Affiliate of the Company, your Service will be deemed to have terminated for purposes of this Section 3 upon such cessation if your Service does not continue uninterrupted immediately thereafter with the Company or an Affiliate of the Company.
4.Market Stand-Off Agreement. You agree that you will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the IPO and ending on the date specified by the Company and the managing underwriter, or such other period as may be requested by the Company or an underwriter to
accommodate regulatory restrictions on (1) the publication or other distribution of research reports and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto) (the “Market Stand-Off Period”), (a) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any capital stock held immediately prior to the effectiveness of the registration statement for the IPO or (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the capital stock, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of capital stock or other securities, in cash or otherwise. In addition, you agree to execute any further letters, agreements and/or other documents requested by the Company or its underwriters that are consistent with the terms of this Section 4. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such Market Stand-Off Period.
5.Nontransferability of Options. These Options are nontransferable otherwise than by will or the laws of descent and distribution and during your lifetime, the Options may be exercised only by you or, during the period you are under a legal disability, by your guardian or legal representative. Except as provided above, neither the Options nor the underlying Shares (upon or following exercise) may be assigned, transferred, pledged, hypothecated or disposed of in any way (whether by operation of law or otherwise) and shall not be subject to execution, attachment or similar process. The Shares shall be further subject to the Stock Restriction Agreement.
6.Qualified Nature of the Options.
(a)General Status. The Options are intended to qualify as incentive stock options within the meaning of Code section 422 (“Incentive Stock Options”), to the fullest extent permitted by Code section 422, and this Agreement shall be so construed. The Company, however, does not warrant any particular tax consequences of the Options. Code section 422 provides limitations, not set forth in this Agreement, respecting the treatment of the Options as Incentive Stock Options. You should consult with your personal tax advisors in this regard.
(b)Code Section 422(d) Limitation. Pursuant to Code section 422(d), the aggregate fair market value (determined as of the Grant Date) of shares of Common Stock with respect to which all Incentive Stock Options first become exercisable by you in any calendar year under the Plan or any other plan of the Company (and its parent and subsidiary corporations, within the meaning of Code section 424(e) and (f), as may exist from time to time) may not exceed
$100,000 or such other amount as may be permitted from time to time under Code section 422. To the extent that such aggregate fair market value exceeds $100,000 or other applicable amount in any calendar year, such stock options will be treated as nonstatutory stock options with respect to the amount of aggregate fair market value thereof that exceeds the Code section 422(d) limit. For this purpose, the Incentive Stock Options will be taken into account in the order in which they were granted. In such case, the Company may designate the shares of Common Stock that are to be treated as stock acquired pursuant to the exercise of Incentive Stock Options and the shares of Common Stock that are to be treated as stock acquired pursuant to nonstatutory stock options by issuing separate certificates for such shares and identifying the certificates as such in the stock transfer records of the Company.
(c)Significant Stockholders. Notwithstanding anything in this Agreement or the Stock Option Notice to the contrary, if you own, directly or indirectly through attribution, stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of any of its subsidiaries (within the meaning of Code section 424(f)) on the Grant Date, then the Exercise Price is the greater of (a) the Exercise Price stated on the Stock Option Notice or (b) 110%
of the Fair Market Value of the Common Stock on the Grant Date, and the Expiration Date is the last business day prior to the fifth anniversary of the Grant Date.
(d)Disqualifying Dispositions. If you make a disposition (as that term is defined in Code section 424(c)) of any Shares acquired pursuant to the Options within two years of the Grant Date or within one year after the Shares are transferred to you, you must notify the Company of such disposition in writing within 30 days of the disposition. The Administrator may, in its discretion, take reasonable steps to ensure notification of such dispositions, including but not limited to requiring that Shares acquired under the Options be held in an account with a Company-designated broker-dealer until they are sold.
7.Withholding of Taxes.
(a)At the time the Options are exercised, in whole or in part, or at any time thereafter as requested by the Company, you hereby authorize withholding from payroll or any other payment of any kind due to you and otherwise agree to make adequate provision for foreign, federal, state and local taxes required by law to be withheld, if any, which arise in connection with the Options (including upon a disqualifying disposition within the meaning of Code section 421(b)). The Company may require you to make a cash payment to cover any withholding tax obligation as a condition of exercise of the Options or issuance of share certificates representing Shares.
(b)The Administrator may, in its sole discretion, permit you to satisfy, in whole or in part, any withholding tax obligation which may arise in connection with the Options either by electing to have the Company withhold from the Shares to be issued upon exercise that number of Shares, or by electing to deliver to the Company already-owned shares, in either case having a Fair Market Value not in excess of the amount necessary to satisfy the statutory minimum withholding amount due.
8.Adjustments. The Administrator may make various adjustments to your Options, including adjustments to the number and type of securities subject to the Options and the Exercise Price, in accordance with the terms of the Plan. In the event of any transaction resulting in a Change in Control, the outstanding Options will terminate upon the effective time of such Change in Control unless provision is made in connection with the transaction for the continuation or assumption of such Options by, or for the substitution of the equivalent awards of, the surviving or successor entity or a parent thereof. In the event of such termination, you will be permitted, immediately before the Change in Control, to exercise or convert all portions of such Options that are then exercisable or which become exercisable upon or prior to the effective time of the Change in Control.
9.Non-Guarantee of Employment or Service Relationship. Nothing in the Plan or this Agreement will alter your at-will or other employment status or other service relationship with the Company, nor be construed as a contract of employment or service relationship between you and the Company, or as a contractual right for you to continue in the employ of, or in a service relationship with, the Company for any period of time, or as a limitation of the right of the Company to discharge you at any time with or without Cause or notice and whether or not such discharge results in the failure of any of the Options to become exercisable or any other adverse effect on your interests under the Plan.
10.No Rights as a Stockholder. You shall not have any of the rights of a stockholder with respect to the Shares until such Shares have been issued to you upon the due exercise of the Options. No adjustment will be made for dividends or distributions or other rights for which the record date is prior to the date such Shares are issued.
11.The Company’s Rights. The existence of the Options shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or other
stocks with preference ahead of or convertible into, or otherwise affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale
or transfer of all or any part of the Company's assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
12.Entire Agreement. This Agreement, together with the correlating Stock Option Notice and the Plan, contain the entire agreement between you and the Company with respect to the Options. Any oral or written agreements, representations, warranties, written inducements, or other communications made prior to the execution of this Agreement with respect to the Options shall be void and ineffective for all purposes.
13.Amendment. This Agreement may be amended from time to time by the Administrator in its discretion; provided, however, that this Agreement may not be modified in a manner that would have a materially adverse effect on the Options or Shares as determined in the discretion of the Administrator, except as provided in the Plan or in a written document signed by you and the Company.
14.Conformity with Plan. This Agreement is intended to conform in all respects with, and is subject to all applicable provisions of, the Plan. Any conflict between the terms of this Agreement and the Plan shall be resolved in accordance with the terms of the Plan. In the event of any ambiguity in this Agreement or any matters as to which this Agreement is silent, the Plan shall govern. A copy of the Plan is provided to you with this Agreement.
15.Section 409A. This Agreement and the Options granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Code. This Agreement and the Options shall be administered, interpreted and construed in a manner consistent with this intent. Nothing in the Plan or this Agreement shall be construed as including any feature for the deferral of compensation other than the deferral of recognition of income until the exercise of the Options. Should any provision of the Plan or this Agreement be found not to comply with, or otherwise be exempt from, the provisions of Section 409A of the Code, it may be modified and given effect, in the sole discretion of the Administrator and without requiring your consent, in such manner as the Administrator determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of the Code. The foregoing, however, shall not be construed as a guarantee or warranty by the Company of any particular tax effect to you.
16.Electronic Delivery of Documents. By your signing the Notice, you (i) consent to the electronic delivery of this Agreement, all information with respect to the Plan and the Options, and any reports of the Company provided generally to the Company’s stockholders;
(ii) acknowledge that you may receive from the Company a paper copy of any documents delivered electronically at no cost to you by contacting the Company by telephone or in writing; (iii) further acknowledge that you may revoke your consent to the electronic delivery of documents at any time by notifying the Company of such revoked consent by telephone, postal service or electronic mail; and (iv) further acknowledge that you understand that you are not required to consent to electronic delivery of documents.
17.No Future Entitlement. By execution of the Notice, you acknowledge and agree that: (i) the grant of these Options is a one-time benefit which does not create any contractual or other right to receive future grants of stock options, or compensation in lieu of stock options, even if stock options have been granted repeatedly in the past; (ii) all determinations with respect to any such future grants, including, but not limited to, the times when stock options shall be granted or shall become exercisable, the maximum number of shares subject to each stock option, and the purchase price, will be at the sole discretion of the Administrator; (iii) the value of these Options is an extraordinary item of compensation which is outside the scope of your employment contract, if any; (iv) the value of these
Options is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any termination, severance, resignation, redundancy, end of service payments or similar payments, or bonuses, long-service awards, pension or retirement benefits; (v) the vesting of these Options ceases upon termination of employment with the Company or transfer of employment from the Company, or other cessation of
eligibility for any reason, except as may otherwise be explicitly provided in this Agreement; (vi) if the underlying Common Stock does not increase in value, these Options will have no value, nor does the Company guarantee any future value; and (vii) no claim or entitlement to compensation or damages arises if these Options do not increase in value and you irrevocably release the Company from any such claim that does arise.
18.Personal Data. For the purpose of implementing, administering and managing these Options, you, by execution of the Notice, consent to the collection, receipt, use, retention and transfer, in electronic or other form, of your personal data by and among the Company and its third party vendors or any potential party to any Change in Control transaction or capital raising transaction involving the Company. You understand that personal data (including but not limited to, name, home address, telephone number, employee number, employment status, social security number, tax identification number, date of birth, nationality, job and payroll location, data for tax withholding purposes and shares awarded, cancelled, exercised, vested and unvested) may be transferred to third parties assisting in the implementation, administration and management of these Options and the Plan and you expressly authorize such transfer as well as the retention, use, and the subsequent transfer of the data by the recipient(s). You understand that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that data will be held only as long as is necessary to implement, administer and manage these Options. You understand that you may, at any time, request a list with the names and addresses of any potential recipients of the personal data, view data, request additional information about the storage and processing of data, require any necessary amendments to data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Company’s Secretary. You understand, however, that refusing or withdrawing your consent may affect your ability to accept a stock option.
19.Governing Law. The validity, construction and effect of this Agreement, and of any determinations or decisions made by the Administrator relating to this Agreement, and the rights of any and all persons having or claiming to have any interest under this Agreement, shall be determined exclusively in accordance with the laws of the State of Delaware, without regard to its provisions concerning the applicability of laws of other jurisdictions. As a condition of this Agreement, you agree that you will not bring any action arising under, as a result of, pursuant to or relating to, this Agreement in any court other than a federal or state court in the districts which include Delaware, and you hereby agree and submit to the personal jurisdiction of any federal court located in the district which includes Delaware or any state court in Delaware. You further agree that you will not deny or attempt to defeat such personal jurisdiction or object to venue by motion or other request for leave from any such court.
20.Resolution of Disputes. Any dispute or disagreement which shall arise under, or as a result of, or pursuant to or relating to, this Agreement shall be determined by the Administrator in good faith in its absolute and uncontrolled discretion, and any such determination or any other determination by the Administrator under or pursuant to this Agreement and any interpretation by the Administrator of the terms of this Agreement, will be final, binding and conclusive on all persons affected thereby. You agree that before you may bring any legal action arising under, as a result of, pursuant to or relating to, this Agreement you will first exhaust your administrative remedies before the Administrator. You further agree that in the event that the Administrator does not resolve any dispute or disagreement arising under, as a result of, pursuant to or relating to, this Agreement to your satisfaction, no legal action may be commenced or maintained relating to this Agreement more than twenty-four (24) months after the Administrator’s decision.
21.Headings. The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
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GLOSSARY
(a)“Cause” has the meaning ascribed to such term or words of similar import in your written employment or service contract with the Company as in effect at the time at issue and, in the absence of such agreement or definition, means your (i) conviction of, or plea of nolo contendere to, a felony or crime involving moral turpitude; (ii) fraud on or misappropriation of any funds or property of the Company, any affiliate, customer or vendor; (iii) personal dishonesty, incompetence, willful misconduct, willful violation of any law, rule or regulation (other than minor traffic violations or similar offenses) or breach of fiduciary duty which involves personal profit;
(iv) willful misconduct in connection with your duties or willful failure to perform your responsibilities in the best interests of the Company; (v) illegal use or distribution of drugs; (vi) violation of any Company rule, regulation, procedure or policy; or (vii) breach of any provision of any employment, non-disclosure, non-competition, non-solicitation or other similar agreement executed by you for the benefit of the Company, all as determined by the Administrator, which determination will be conclusive.
(b)“Service” means your employment or other service relationship with the Company and its Affiliates. Your Service will be considered to have ceased with the Company and its Affiliates if, immediately after a sale, merger or other corporate transaction, the trade, business or entity with which you are employed or otherwise have a service relationship is not the Company or its successor or an Affiliate of the Company or its successor.
(c)“Stock Option Notice” means the written notice evidencing the award of the Options that correlates with and makes up a part of this Agreement.
(d)“Total and Permanent Disability” means the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. The Administrator may require such proof of Total and Permanent Disability as the Administrator in its sole discretion deems appropriate and the Administrator’s good faith determination as to whether you are totally and permanently disabled will be final and binding on all parties concerned.
(e)“You” or “Your” means the recipient of the award of Options as reflected on the Stock Option Notice. Whenever the Agreement refers to “you” under circumstances where the provision should logically be construed, as determined by the Administrator, to apply to your estate, personal representative, or beneficiary to whom the Options may be transferred by will or by the laws of descent and distribution, the word “you” shall be deemed to include such person.
EXERCISE FORM
Administrator of 2015 Stock Incentive Plan
c/o Office of the Corporate Secretary
HawkEye 360, Inc.
33 Arch Street, Suite 3201
Boston, MA 02110
Gentlemen:
I hereby exercise the Options granted to me on __________ __, ____, by HawkEye 360, Inc. (the “Company”), subject to all the terms and provisions of the applicable grant agreement and of the HawkEye 360, Inc. 2015 Stock Incentive Plan (the “Plan”), and notify you of my desire to purchase __________ shares of Common Stock of the Company at a price of $__________ per share pursuant to the exercise of said Options.
This will confirm my understanding with respect to the shares to be issued to me by reason of this exercise of the Options (the shares to be issued pursuant hereto shall be collectively referred to hereinafter as the “Shares”) as follows:
(a)I am purchasing the Shares for my own account for investment only, and not with a view to, or for sale in connection with, any distribution of the Shares in violation of the Securities Act of 1933 (the “Securities Act”), or any rule or regulation under the Securities Act.
(b)I understand that the Shares are being issued without registration under the Securities Act, in reliance upon one or more exemptions contained in the Securities Act, and such reliance is based in part on the above representation. I also understand that the Company is not obligated to comply with the registration requirements of the Securities Act or with the requirements for an exemption under Regulation A under the Securities Act for my benefit.
(c)I have had such opportunity as I deemed adequate to obtain from representatives of the Company such information as is necessary to permit me to evaluate the merits and risks of my investment in the Company.
(d)I have sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.
(e)I can afford a complete loss of the value of the Shares and am able to bear the economic risk of holding such Shares for an indefinite period.
(f)I understand that (i) the Shares have not been registered under the Securities Act and are “restricted securities” within the meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is then available and, therefore, they may need to be held indefinitely; and (iii) there is now no registration statement on file with the Securities and Exchange Commission with respect to any stock of the Company and the Company has no obligation or current intention to register the Shares under the Securities Act. As a condition to any transfer of the Shares, I understand that the Company may require an opinion of counsel satisfactory to the Company to the effect that such transfer does not require registration under the Securities Act or any state securities law.
(g)I understand that the certificates for the Shares to be issued to me will bear a legend substantially as follows:
The shares of stock represented by this certificate are subject to restrictions on transfer, an option to purchase and a market stand-off agreement set forth in a certain Stock
Restriction Agreement between the corporation and the registered owner of this certificate (or his predecessor in interest), and no transfer of such shares may be made without compliance with that Agreement. A copy of that Agreement is available for inspection at the office of the corporation upon appropriate request and without charge.
The securities represented by this stock certificate have not been registered under the Securities Act of 1933 (the “Act”) or applicable state securities laws (the “State Acts”), and shall not be sold, pledged, hypothecated, donated, or otherwise transferred (whether or not for consideration) by the holder except upon the issuance to the corporation of a favorable opinion of its counsel and/or submission to the corporation of such other evidence as may be satisfactory to counsel for the corporation, to the effect that any such transfer shall not be in violation of the Act and the State Acts.
The Company will issue appropriate stop transfer instructions to its transfer agent.
(h)I am a party to a grant agreement and a stock restriction agreement with the Company, pursuant to which I have agreed to certain restrictions on the transferability of the Shares and other matters relating thereto.
Total Amount Enclosed: $__________
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Received by HawkEye 360, Inc. on |
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__________ __, ____ |
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By: | |
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NONSTATUTORY STOCK OPTION AGREEMENT
UNDER THE
HAWKEYE 360, INC. 2015 STOCK INCENTIVE PLAN
1.Terminology. Capitalized terms used in this Agreement are defined in the correlating Stock Option Notice, the Plan and/or the Glossary at the end of this Agreement.
2.Exercise of Options.
(a)Exercisability. The Options will become exercisable in accordance with the Exercisability Schedule set forth in the Stock Option Notice, so long as you are in the Service of the Company from the Grant Date through the applicable exercisability dates. None of the Options will become exercisable after your Service with the Company ceases, unless the Stock Option Notice provides otherwise with respect to exercisability that arises as a result of your cessation of Service.
(b)Right to Exercise. You may exercise the Options, to the extent exercisable, at any time on or before 5:00 P.M. Eastern Time on the Expiration Date or the earlier termination of the Options, unless otherwise provided under applicable law. Notwithstanding the foregoing, if at any time the Administrator determines that the delivery of Shares under the Plan or this Agreement is or may be unlawful under the laws of any applicable jurisdiction, or Federal, state or foreign securities laws, the right to exercise the Options or receive Shares pursuant to the Options shall be suspended until the Administrator determines that such delivery is lawful. If at any time the Administrator determines that the delivery of Shares under the Plan or this Agreement is or may violate the rules of the national securities exchange on which the shares are then listed for trade, the right to exercise the Options or receive Shares pursuant to the Options shall be suspended until the Administrator determines that such exercise or delivery would not violate such rules. Section 3 below describes certain limitations on exercise of the Options that apply in the event of your death, Total and Permanent Disability, or termination of Service. The Options may be exercised only in multiples of whole Shares and may not be exercised at any one time as to fewer than one hundred Shares (or such lesser number of Shares as to which the Options are then exercisable). No fractional Shares will be issued under the Options.
(c)Exercise Procedure. In order to exercise the Options, you must provide the following items to the Secretary of the Company or his or her delegate before the expiration or termination of the Options:
(i)notice, in such manner and form as the Administrator may require from time to time, specifying the number of Shares to be purchased under the Options;
(ii)full payment of the Exercise Price for the Shares or properly executed, irrevocable instructions, in such manner and form as the Administrator may require from time to time, to effectuate a broker-assisted cashless exercise, each in accordance with Section 2(d) of this Agreement;
(iii)full payment of applicable withholding taxes pursuant to Section 7 of this Agreement; and
(iv)an executed copy of any other agreements requested by the Administrator pursuant to Section 2(e) of this Agreement.
An exercise will not be effective until the Secretary of the Company or his or her delegate receives all of the foregoing items, and such exercise otherwise is permitted under and complies with all applicable federal, state and foreign securities laws. Notwithstanding the foregoing, if the Administrator permits payment by means of delivering properly executed, irrevocable instructions, in such manner and form as
the Administrator may require from time to time, to effectuate a broker-assisted cashless exercise and such instructions provide for sale of Shares under a limit order rather than at the market, the exercise will not be effective until the earlier of the date the Company receives delivery of cash or cash equivalents in full payment of the Exercise Price or the date the Company receives confirmation from the broker that the sale instruction has been fulfilled, and the exercise will not be effective unless the earlier of such dates occurs on or before termination of the Options.
(d)Method of Payment. You may pay the Exercise Price by:
(i)delivery of cash, certified or cashier’s check, money order or other cash equivalent acceptable to the Administrator in its discretion;
(ii)a broker-assisted cashless exercise in accordance with Regulation T of the Board of Governors of the Federal Reserve System through a brokerage firm designated or approved by the Administrator;
(iii)subject to such limits as the Administrator may impose from time to time, tender (via actual delivery or attestation) to the Company of other shares of Common Stock of the Company which have a Fair Market Value on the date of tender equal to the Exercise Price;
(iv)subject to such limits as the Administrator may impose from time to time, net share settlement;
(v)any other method approved by the Administrator; or
(vi)any combination of the foregoing.
(e)Agreement to Execute Other Agreements. You agree to execute, as a condition precedent to the exercise of the Options and at any time thereafter as may reasonably be requested by the Administrator, a Stock Restriction Agreement substantially in the form, and containing the terms and provisions, of the Stock Restriction Agreement attached hereto as Exhibit A, with respect to any shares you acquire pursuant to this Agreement; provided, however, that execution of the Stock Restriction Agreement will not be required upon any exercise that occurs after the closing of the first public offering of capital stock of the Company that is effected pursuant to a registration statement filed with, and declared effective by, the Securities and Exchange Commission under the Securities Act of 1933 (the “IPO”) or, if later, the expiration of any market stand-off agreement that applies to other stockholders of the Company respecting such IPO.
(f)Issuance of Shares upon Exercise. The Company shall issue to you the Shares underlying the Options you exercise as soon as practicable after the exercise date, subject to the Company’s receipt of the aggregate exercise price and the requisite withholding taxes, if any. Upon issuance of such Shares, the Company may deliver, subject to the provisions of Section 7 below, such Shares on your behalf electronically to the Company’s designated stock plan administrator or such other broker-dealer as the Company may choose at its sole discretion, within reason, or may retain such Shares in uncertificated book-entry form. Any share certificates delivered will, unless the Shares are registered or an exemption from registration is available under applicable federal and state law, bear a legend restricting transferability of such Shares and referencing any applicable Stock Restriction Agreement.
3.Termination of Service.
(a)Termination of Unexercisable Options. If your Service with the Company ceases for any reason, the Options that are then unexercisable, after giving effect to any exercise acceleration provisions set forth on the Stock Option Notice, will terminate immediately upon such cessation.
(b)Exercise Period Following Termination of Service. If your Service with the Company ceases for any reason other than discharge for Cause, the Options that are then exercisable, after giving effect to any exercise acceleration provisions set forth on the Stock Option Notice, will terminate upon the earliest of:
(i)the expiration of 90 days following such cessation, if your Service ceases on account of (1) your termination by the Company other than a discharge for Cause, or (2) your voluntary termination other than for Total and Permanent Disability or death;
(ii)the expiration of 12 months following such cessation, if your Service ceases on account of your Total and Permanent Disability or death;
(iii)the expiration of 12 months following your death, if your death occurs during the periods described in clauses (i) or (ii) of this Section 3(b), as applicable; or
(iv)the Expiration Date.
In the event of your death, the exercisable Options may be exercised by your executor, personal representative, or the person(s) to whom the Options are transferred by will or the laws of descent and distribution.
(c)Misconduct. The Options will terminate in their entirety, regardless of whether the Options are then exercisable, immediately upon your discharge from Service for Cause, or upon your commission of any of the following acts during the exercise period following your termination of Service: (i) fraud on or misappropriation of any funds or property of the Company, or (ii) your breach of any provision of any employment, non-disclosure, non-competition, non-solicitation, assignment of inventions, or other similar agreement executed by you for the benefit of the Company, as determined by the Administrator, which determination will be conclusive.
(d)Change in Status. In the event that your Service is with a business, trade or entity that, after the Grant Date, ceases for any reason to be part or an Affiliate of the Company, your Service will be deemed to have terminated for purposes of this Section 3 upon such cessation if your Service does not continue uninterrupted immediately thereafter with the Company or an Affiliate of the Company.
4.Market Stand-Off Agreement. You agree that you will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the IPO and ending on the date specified by the Company and the managing underwriter, or such other period as may be requested by the Company or an underwriter to accommodate regulatory restrictions on (1) the publication or other distribution of research reports and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto) (the “Market Stand-Off Period”), (a) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any capital stock held immediately prior to the effectiveness of the registration statement for the IPO or (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the capital stock, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of capital stock or other securities, in cash or otherwise. In addition, you agree to execute any further letters, agreements and/or other documents requested by the Company or its underwriters that are consistent with the terms of this Section 4. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such Market Stand-Off Period.
5.Nontransferability of Options. These Options and, before exercise, the underlying Shares are nontransferable otherwise than by will or the laws of descent and distribution and, during your lifetime,
the Options may be exercised only by you or, during the period you are under a legal disability, by your guardian or legal representative. Except as provided above, neither the Options nor the underlying Shares (upon or following exercise) may be assigned, transferred, pledged, hypothecated, subjected to any “put equivalent position,” “call equivalent position” (as each preceding term is defined by Rule 16(a)-1 under the Securities Exchange Act of 1934), or short position, or disposed of in any way (whether by operation of law or otherwise) and shall not be subject to execution, attachment or similar process. The Shares shall be further subject to the Stock Restriction Agreement.
6.Nonqualified Nature of the Options. The Options are not intended to qualify as incentive stock options within the meaning of Code section 422, and this Agreement shall be so construed. You hereby acknowledge that, upon exercise of the Options, you will recognize compensation income in an amount equal to the excess of the then Fair Market Value of the Shares over the Exercise Price and must comply with the provisions of Section 7 of this Agreement with respect to any tax withholding obligations that arise as a result of such exercise.
7.Withholding of Taxes.
(a)At the time the Options are exercised, in whole or in part, or at any time thereafter as requested by the Company, you hereby authorize withholding from payroll or any other payment of any kind due to you and otherwise agree to make adequate provision for foreign, federal, state and local taxes required by law to be withheld, if any, which arise in connection with the Options. The Company may require you to make a cash payment to cover any withholding tax obligation as a condition of exercise of the Options or issuance of share certificates representing Shares.
(b)The Administrator may, in its sole discretion, permit you to satisfy, in whole or in part, any withholding tax obligation which may arise in connection with the Options either by electing to have the Company withhold from the Shares to be issued upon exercise that number of Shares, or by electing to deliver to the Company already-owned shares, in either case having a Fair Market Value not in excess of the amount necessary to satisfy the statutory minimum withholding amount due.
8.Adjustments. The Administrator may make various adjustments to your Options, including adjustments to the number and type of securities subject to the Options and the Exercise Price, in accordance with the terms of the Plan. In the event of any transaction resulting in a Change in Control, the outstanding Options will terminate upon the effective time of such Change in Control unless provision is made in connection with the transaction for the continuation or assumption of such Options by, or for the substitution of the equivalent awards of, the surviving or successor entity or a parent thereof. In the event of such termination, you will be permitted, immediately before the Change in Control, to exercise or convert all portions of such Options that are then exercisable or which become exercisable upon or prior to the effective time of the Change in Control.
9.Non-Guarantee of Employment or Service Relationship. Nothing in the Plan or this Agreement will alter your at-will or other employment status or other service relationship with the Company, nor be construed as a contract of employment or service relationship between you and the Company, or as a contractual right for you to continue in the employ of, or in a service relationship with, the Company for any period of time, or as a limitation of the right of the Company to discharge you at any time with or without Cause or notice and whether or not such discharge results in the failure of any of the Options to become exercisable or any other adverse effect on your interests under the Plan.
10.No Rights as a Stockholder. You shall not have any of the rights of a stockholder with respect to the Shares until such Shares have been issued to you upon the due exercise of the Options. No adjustment will be made for dividends or distributions or other rights for which the record date is prior to the date such Shares are issued.
11.The Company’s Rights. The existence of the Options shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business, or
any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or other stocks with preference ahead of or convertible into, or otherwise affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of the Company’s assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
12.Entire Agreement. This Agreement, together with the correlating Stock Option Notice and the Plan, contain the entire agreement between you and the Company with respect to the Options. Any oral or written agreements, representations, warranties, written inducements, or other communications made prior to the execution of this Agreement with respect to the Options shall be void and ineffective for all purposes.
13.Amendment. This Agreement may be amended from time to time by the Administrator in its discretion; provided, however, that this Agreement may not be modified in a manner that would have a materially adverse effect on the Options or Shares as determined in the discretion of the Administrator, except as provided in the Plan or in a written document signed by you and the Company.
14.Conformity with Plan. This Agreement is intended to conform in all respects with, and is subject to all applicable provisions of, the Plan. Any conflict between the terms of this Agreement and the Plan shall be resolved in accordance with the terms of the Plan. In the event of any ambiguity in this Agreement or any matters as to which this Agreement is silent, the Plan shall govern. A copy of the Plan is provided to you with this Agreement.
15.Section 409A. This Agreement and the Options granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Code. This Agreement and the Options shall be administered, interpreted and construed in a manner consistent with this intent. Nothing in the Plan or this Agreement shall be construed as including any feature for the deferral of compensation other than the deferral of recognition of income until the exercise of the Options. Should any provision of the Plan or this Agreement be found not to comply with, or otherwise be exempt from, the provisions of Section 409A of the Code, it may be modified and given effect, in the sole discretion of the Administrator and without requiring your consent, in such manner as the Administrator determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of the Code. The foregoing, however, shall not be construed as a guarantee or warranty by the Company of any particular tax effect to you.
16.Electronic Delivery of Documents. By your signing the Notice, you (i) consent to the electronic delivery of this Agreement, all information with respect to the Plan and the Options, and any reports of the Company provided generally to the Company’s stockholders; (ii) acknowledge that you may receive from the Company a paper copy of any documents delivered electronically at no cost to you by contacting the Company by telephone or in writing; (iii) further acknowledge that you may revoke your consent to the electronic delivery of documents at any time by notifying the Company of such revoked consent by telephone, postal service or electronic mail; and (iv) further acknowledge that you understand that you are not required to consent to electronic delivery of documents.
17.No Future Entitlement. By execution of the Notice, you acknowledge and agree that: (i) the grant of these Options is a one-time benefit which does not create any contractual or other right to receive future grants of stock options, or compensation in lieu of stock options, even if stock options have been granted repeatedly in the past; (ii) all determinations with respect to any such future grants, including, but not limited to, the times when stock options shall be granted or shall become exercisable, the maximum number of shares subject to each stock option, and the purchase price, will be at the sole discretion of the Administrator; (iii) the value of these Options is an extraordinary item of compensation which is outside the scope of your employment contract, if any; (iv) the value of these Options is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any termination, severance, resignation, redundancy, end of service payments or similar payments, or bonuses, long-service awards, pension or retirement benefits; (v) the vesting of these Options ceases
upon termination of employment with the Company or transfer of employment from the Company, or other cessation of eligibility for any reason, except as may otherwise be explicitly provided in this Agreement; (vi) if the underlying Common Stock does not increase in value, these Options will have no value, nor does the Company guarantee any future value; and (vii) no claim or entitlement to compensation or damages arises if these Options do not increase in value and you irrevocably release the Company from any such claim that does arise.
18.Personal Data. For the purpose of implementing, administering and managing these Options, you, by execution of the Notice, consent to the collection, receipt, use, retention and transfer, in electronic or other form, of your personal data by and among the Company and its third party vendors or any potential party to any Change in Control transaction or capital raising transaction involving the Company. You understand that personal data (including but not limited to, name, home address, telephone number, employee number, employment status, social security number, tax identification number, date of birth, nationality, job and payroll location, data for tax withholding purposes and shares awarded, cancelled, exercised, vested and unvested) may be transferred to third parties assisting in the implementation, administration and management of these Options and the Plan and you expressly authorize such transfer as well as the retention, use, and the subsequent transfer of the data by the recipient(s). You understand that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that data will be held only as long as is necessary to implement, administer and manage these Options. You understand that you may, at any time, request a list with the names and addresses of any potential recipients of the personal data, view data, request additional information about the storage and processing of data, require any necessary amendments to data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Company’s Secretary. You understand, however, that refusing or withdrawing your consent may affect your ability to accept a stock option.
19.Risk and Financial Information Disclosure. For purposes of claiming an exemption from registration under Rule 12h-1(f)(1) under the Securities Exchange Act of 1934, the Company may decide to provide you, every six months, with the information described in Rules 701(e)(3), (4), and (5) under the Securities Act of 1933 (risk and financial information relating to the Company), with any such financial statements being not more than 180 days old. Any such information may be provided either by physical or electronic delivery or by written notice of the availability of the information on an Internet site that may be password-protected and of any password needed to access the information. You may be required to execute an agreement to keep the information confidential as a condition precedent to the provision of the information. Any such agreement shall be executed in such manner and form as the Administrator may require from time to time. Notwithstanding the foregoing, the Company shall have no initial or continuing obligation to provide you with the information described in this Section 19, except as otherwise required by applicable law.
20.Governing Law. The validity, construction and effect of this Agreement, and of any determinations or decisions made by the Administrator relating to this Agreement, and the rights of any and all persons having or claiming to have any interest under this Agreement, shall be determined exclusively in accordance with the laws of the State of Delaware, without regard to its provisions concerning the applicability of laws of other jurisdictions. As a condition of this Agreement, you agree that you will not bring any action arising under, as a result of, pursuant to or relating to, this Agreement in any court other than a federal or state court in the districts which include Delaware, and you hereby agree and submit to the personal jurisdiction of any federal court located in the district which includes Delaware or any state court in Delaware. You further agree that you will not deny or attempt to defeat such personal jurisdiction or object to venue by motion or other request for leave from any such court.
21.Resolution of Disputes. Any dispute or disagreement which shall arise under, or as a result of, or pursuant to or relating to, this Agreement shall be determined by the Administrator in good faith in its absolute and uncontrolled discretion, and any such determination or any other determination by the Administrator under or pursuant to this Agreement and any interpretation by the Administrator of the terms of this Agreement, will be final, binding and conclusive on all persons affected thereby. You agree
that before you may bring any legal action arising under, as a result of, pursuant to or relating to, this Agreement you will first exhaust your administrative remedies before the Administrator. You further agree that in the event that the Administrator does not resolve any dispute or disagreement arising under, as a result of, pursuant to or relating to, this Agreement to your satisfaction, no legal action may be commenced or maintained relating to this Agreement more than twenty-four (24) months after the Administrator’s decision.
22.Headings. The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
{Glossary begins on next page}
GLOSSARY
(a)“Cause” has the meaning ascribed to such term or words of similar import in your written employment or service contract with the Company as in effect at the time at issue and, in the absence of such agreement or definition, means your (i) conviction of, or plea of nolo contendere to, a felony or crime involving moral turpitude; (ii) fraud on or misappropriation of any funds or property of the Company, any affiliate, customer or vendor; (iii) personal dishonesty, incompetence, willful misconduct, willful violation of any law, rule or regulation (other than minor traffic violations or similar offenses) or breach of fiduciary duty which involves personal profit; (iv) willful misconduct in connection with your duties or willful failure to perform your responsibilities in the best interests of the Company; (v) illegal use or distribution of drugs; (vi) violation of any Company rule, regulation, procedure or policy; or (vii) breach of any provision of any employment, non-disclosure, non-competition, non-solicitation or other similar agreement executed by you for the benefit of the Company, all as determined by the Administrator, which determination will be conclusive.
(b)“Service” means your employment or other service relationship with the Company and its Affiliates. Your Service will be considered to have ceased with the Company and its Affiliates if, immediately after a sale, merger or other corporate transaction, the trade, business or entity with which you are employed or otherwise have a service relationship is not the Company or its successor or an Affiliate of the Company or its successor.
(c)“Stock Option Notice” means the written notice evidencing the award of the Options that correlates with and makes up a part of this Agreement.
(d)“Total and Permanent Disability” means the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. The Administrator may require such proof of Total and Permanent Disability as the Administrator in its sole discretion deems appropriate and the Administrator’s good faith determination as to whether you are totally and permanently disabled will be final and binding on all parties concerned.
(e)“You” or “Your” means the recipient of the award of Options as reflected on the Stock Option Notice. Whenever the Agreement refers to “you” under circumstances where the provision should logically be construed, as determined by the Administrator, to apply to your estate, personal representative, or beneficiary to whom the Options may be transferred by will or by the laws of descent and distribution, the word “you” shall be deemed to include such person.
EXERCISE FORM
Administrator of 2015 Stock Incentive Plan
c/o Office of the Corporate Secretary
HawkEye 360, Inc.
33 Arch Street, Suite 3201
Boston, MA 02110
Gentlemen:
I hereby exercise the Options granted to me on __________ __, ____, by HawkEye 360, Inc. (the “Company”), subject to all the terms and provisions of the applicable grant agreement and of the HawkEye 360, Inc. 2015 Stock Incentive Plan (the “Plan”), and notify you of my desire to purchase __________ shares of Common Stock of the Company at a price of $__________ per share pursuant to the exercise of said Options.
This will confirm my understanding with respect to the shares to be issued to me by reason of this exercise of the Options (the shares to be issued pursuant hereto shall be collectively referred to hereinafter as the “Shares”) as follows:
(a)I am purchasing the Shares for my own account for investment only, and not with a view to, or for sale in connection with, any distribution of the Shares in violation of the Securities Act of 1933 (the “Securities Act”), or any rule or regulation under the Securities Act.
(b)I understand that the Shares are being issued without registration under the Securities Act, in reliance upon one or more exemptions contained in the Securities Act, and such reliance is based in part on the above representation. I also understand that the Company is not obligated to comply with the registration requirements of the Securities Act or with the requirements for an exemption under Regulation A under the Securities Act for my benefit.
(c)I have had such opportunity as I deemed adequate to obtain from representatives of the Company such information as is necessary to permit me to evaluate the merits and risks of my investment in the Company.
(d)I have sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the purchase of the Shares and to make an informed investment decision with respect to such purchase.
(e)I can afford a complete loss of the value of the Shares and am able to bear the economic risk of holding such Shares for an indefinite period.
(f)I understand that (i) the Shares have not been registered under the Securities Act and are “restricted securities” within the meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is then available and, therefore, they may need to be held indefinitely; and (iii) there is now no registration statement on file with the Securities and Exchange Commission with respect to any stock of the Company and the Company has no obligation or current intention to register the Shares under the Securities Act. As a condition to any transfer of the Shares, I understand that the Company may require an opinion of counsel satisfactory to the Company to the effect that such transfer does not require registration under the Securities Act or any state securities law.
(g)I understand that the certificates for the Shares to be issued to me will bear a legend substantially as follows:
The shares of stock represented by this certificate are subject to restrictions on transfer, an option to purchase and a market stand-off agreement set forth in a certain Stock
Restriction Agreement between the corporation and the registered owner of this certificate (or his predecessor in interest), and no transfer of such shares may be made without compliance with that Agreement. A copy of that Agreement is available for inspection at the office of the corporation upon appropriate request and without charge.
The securities represented by this stock certificate have not been registered under the Securities Act of 1933 (the “Act”) or applicable state securities laws (the “State Acts”), and shall not be sold, pledged, hypothecated, donated, or otherwise transferred (whether or not for consideration) by the holder except upon the issuance to the corporation of a favorable opinion of its counsel and/or submission to the corporation of such other evidence as may be satisfactory to counsel for the corporation, to the effect that any such transfer shall not be in violation of the Act and the State Acts.
The Company will issue appropriate stop transfer instructions to its transfer agent.
(h)I am a party to a grant agreement and a stock restriction agreement with the Company, pursuant to which I have agreed to certain restrictions on the transferability of the Shares and other matters relating thereto.
Total Amount Enclosed: $__________
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Received by HawkEye 360, Inc. on |
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Grant No.: _____
HAWKEYE 360, INC.
RESTRICTED STOCK UNIT NOTICE
This Notice evidences the award of restricted stock units (each, a “Restricted Stock Unit” or collectively, the “Restricted Stock Units”) that have been granted to you, [NAME], subject to and conditioned upon your agreement to the terms of the attached Restricted Stock Unit Agreement (the “Agreement”). The Restricted Stock Units entitle you to earn shares of Common Stock, par value $0.0001 per share (“Common Stock”), of HAWKEYE 360, INC., a Delaware corporation (the “Company”), under the HawkEye 360, Inc. 2015 Stock Incentive Plan (the “Plan”). The number of shares you may earn and the vesting terms and conditions upon which you may earn the shares are specified below. This Notice constitutes part of and is subject to the terms and provisions of the Agreement and the Plan, which are incorporated by reference herein. Terms not defined in this Notice shall have the meanings given to them in the attached Restricted Stock Unit Agreement. You must return an executed copy of this Notice to the Company within 30 days of the date hereof. If you fail to do so, the Restricted Stock Units may be rendered null and void in the Company’s discretion.
Grant Date: [GRANT DATE]
Vesting Commencement Date: [GRANT DATE, SERVICE START DATE, OTHER DATE]
Restricted Stock Units Awarded: [SHARES]
Vesting Provisions:
General; Overview
The Restricted Stock Units are subject to both time-based and transaction-based vesting requirements, and both the time-based vesting requirement and transaction-based vesting requirement must be satisfied for the Restricted Stock Units (or relevant portion thereof) to vest.
Time-Based Vesting Requirement
The time-based vesting requirement is satisfied in accordance with the schedule below, contingent upon you remaining in Service through each date:
(a)One-fourth of the Restricted Stock Units shall satisfy the time-based vesting requirement on the first anniversary of the Vesting Commencement Date,
(b)An additional one-fourth of the Restricted Stock Units shall satisfy the time-based vesting requirement on the second anniversary of the Vesting Commencement Date,
(c)An additional one-fourth of the Restricted Stock Units shall satisfy the time-based vesting requirement on the third anniversary of the Vesting Commencement Date, and
(d)The final one-fourth of the Restricted Stock Units shall satisfy the time-based vesting requirement on the fourth anniversary of the Vesting Commencement Date.
Transaction-Based Vesting Requirement
The transaction-based vesting requirement is satisfied in full if either (x) there is an Initial Public Offering of the Company within 5 years of the Vesting Commencement Date, or (y) there is a Change in Control (as defined in the Plan) within 5 years of the Vesting Commencement Date.
Application; Example
For avoidance of doubt, Restricted Stock Units shall vest on the later of the achievement of the time-based vesting requirement and the transaction-based vesting requirement. By way of example, if an Initial Public Offering occurs 14 months after the Vesting Commencement Date and while you remain in Service, 25% of the Restricted Stock Units would be vested, as the transaction-based vesting requirement would have been satisfied and the time-based vesting requirement would have been satisfied with respect to 25% of the Restricted Stock Units. The remaining Restricted Stock Units would then vest ratably on each of the next three anniversaries of the Vesting Commencement Date, contingent on your continued Service to the Company on each such anniversary. As an alternate example, assume a Change in Control occurs four and a half (4.5) years after the Vesting Commencement Date and that you remain in Service through the Change in Control. The Restricted Stock Units would vest in full on the date of the Change in Control (and not before), as the time-based vesting requirement would be satisfied in full, and the transaction-based vesting requirement would be satisfied upon the closing of the Change in Control.
Acceleration Events: If a Change in Control (as defined in the Plan) occurs and within three (3) months before or within twelve (12) months after the effective time of such Change in Control your Service terminates due to an involuntary termination (not including death or Total and Permanent Disability) without Cause, then, as of the later of (i) the date of the Change in Control, or (ii) the date of termination of Service, 100% of the Restricted Stock Units shall become vested.
Termination of Service: Except as set forth above under “Acceleration Events,” upon the termination of your continued Service for any reason, any Restricted Stock Units that have not vested shall be unearned and shall be cancelled immediately without payment. By way of example, if you voluntarily terminate Service three (3) years after the Vesting Commencement Date, but the transaction-based vesting requirement has not been satisfied, then all of the Restricted Stock Units are unearned and will be cancelled on the date of termination, notwithstanding the fact that the time-based vesting requirement was satisfied with respect to 75% of the Restricted Stock Units.
Settlement: The Company shall issue to you one share of Common Stock for each Restricted Stock Unit that vests hereunder, with the delivery of such Common Stock to occur within ten (10) business days following the date on which vesting of the Restricted Stock Units occurred.
Other Agreements: Your Restricted Stock Units shall be subject to any additional terms and conditions set forth in your employment offer letter or other similar document.
[Signature Page Follows on Next Page]
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HAWKEYE 360, INC. |
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I acknowledge that I have carefully read the attached Agreement and the Plan and agree to be bound by all of the provisions set forth in these documents.
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Enclosures: | Restricted Stock Unit Agreement | | GRANTEE |
| 2015 Stock Incentive Plan | | |
| Stock Restriction Agreement | | |
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RESTRICTED STOCK UNIT AGREEMENT
UNDER THE
HAWKEYE 360, INC. 2015 STOCK INCENTIVE PLAN
1.Terminology. Capitalized terms used in this Agreement are defined in the correlating Restricted Stock Unit Notice, the Plan and/or the Glossary at the end of this Agreement.
2.Award of Restricted Stock Units. The Company has issued to you the number of Restricted Stock Units set forth above in the Restricted Stock Unit Notice, effective on the Grant Date, and subject to the terms and conditions set forth in this Agreement and the Plan (which is incorporated herein by reference). The correlating Restricted Stock Unit Notice is specifically made part of this Agreement, and all references to this Agreement shall include the correlating Restricted Stock Unit Notice.
3.Vesting. Unless otherwise provided in the Plan, your Restricted Stock Units shall vest in accordance with the Vesting Provisions and/or upon the other events or pursuant to the Other Agreements set forth in the Restricted Stock Unit Notice.
4.Settlement. Settlement of your vested Restricted Stock Units shall be made at the time(s) and in the form(s) set forth in the Restricted Stock Unit Notice. Any distribution or delivery to be made to you under the Restricted Stock Unit Notice will, if you are then deceased, be made to the administrator or executor of your estate. Any such administrator or executor must furnish the Company or its designated agent with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company or its designated agent to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer. Any Shares received in settlement of vested Restricted Stock Units shall be further subject to the Stock Restriction Agreement.
5.Termination of Service. Upon the termination of your continued Service for any reason, any Restricted Stock Units that have not vested or are not eligible to vest in the future in accordance with Section 3 and the Restricted Stock Unit Notice shall be unearned and shall be cancelled immediately without payment. Upon cancellation, you shall have no further rights with respect to such Restricted Stock Units.
6.Additional Requirements. The transfer of any Shares hereunder shall be effective only at such time as the Company shall have determined that the issuance and delivery of such Shares complies with all applicable laws and the requirements of any securities exchange on which the Shares are then traded, if any. You acknowledge that Shares acquired as payment pursuant to Section 4, above, may bear such legends as the Company deems appropriate to comply with applicable federal, state or foreign securities laws as well as the Stock Restriction Agreement. In connection therewith and prior to the issuance of the Shares, you may be required to deliver to the Company such other documents as may be reasonably necessary to ensure compliance with applicable law.
7.Market Stand-Off Agreement. You agree that you will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to an Initial Public Offering and ending on the date specified by the Company and the managing underwriter, or such other period as may be requested by the Company or an underwriter to accommodate regulatory restrictions on (1) the publication or other distribution of research reports and (2) analyst recommendations and opinions, including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule 472(f)(4), or any successor provisions or amendments thereto) (the “Market Stand-Off Period”), (a) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any capital stock held immediately prior to the effectiveness of the registration statement for the Initial Public Offering or (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the capital stock, whether any such transaction described in
clause (a) or (b) above is to be settled by delivery of capital stock or other securities, in cash or otherwise. In addition, you agree to execute any further letters, agreements and/or other documents requested by the Company or its underwriters that are consistent with the terms of this Section 7. The Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such Market Stand-Off Period.
8.Restricted Stock Units Not Transferable. Restricted Stock Units (and related rights) may not be sold, assigned, alienated, transferred by gift or otherwise, pledged, hypothecated, or otherwise disposed of, by operation of law or otherwise. Any attempt to assign, alienate, transfer, pledge, sell or otherwise dispose of the Restricted Stock Units or its related rights shall be ineffective and, if any such attempt is made, the Restricted Stock Units will be cancelled and all of your rights under the Award Documents shall immediately terminate without any payment of consideration by the Company.
9.Withholding of Taxes. You shall make appropriate arrangements with the Company to provide for payment of any federal, state, local or foreign taxes of any kind required by law to be withheld in respect of your Restricted Stock Units. Such arrangements may include, but are not limited to, the payment of the withholding amount by you in cash, withholding by the Company from other cash compensation payable to you, or voluntary share withholding as described below. Voluntary share withholding is subject to the prior approval of the Administrator, which may be withheld by the Administrator in its sole discretion. If approved, you may elect to satisfy the statutory withholding obligations, in whole or in part, by having the Company withhold shares otherwise issuable to you hereunder or by delivering already-owned shares to the Company. The shares delivered or withheld shall have an aggregate Fair Market Value not in excess of the minimum statutory withholding. The Fair Market value of the shares used to satisfy the withholding obligation shall be determined by the Company as of the date on which taxation occurs. Shares used to satisfy any tax withholding obligation must be vested and cannot be subject to any repurchase, forfeiture, or other similar requirements and any previously held shares delivered must not result in adverse accounting treatment to the Company. Any election by you to have shares withheld shall be irrevocable, made in writing (or electronically), signed by you (including electronically), and shall be subject to any restrictions or limitations that the Administrator, in its sole discretion, deems appropriate. Further, if you become subject to tax in more than one jurisdiction between the Grant Date and the date of any relevant taxable or tax withholding event, as applicable, you acknowledge that the Company and/or its subsidiaries (or former employer, as applicable) may be required to withhold or account for federal, state, local or foreign taxes of any kind in more than one jurisdiction.
10.Adjustments. The Administrator may make various adjustments to your Restricted Stock Units, including adjustments to the number and type of securities subject to the Restricted Stock Units, in accordance with the terms of the Plan. In the event of any transaction resulting in a Change in Control, the provisions of Section 7(d)(iii) of the Plan shall apply.
11.Non-Guarantee of Employment or Service Relationship. Nothing in the Plan or the Award Documents will alter your at-will or other employment status or other service relationship with the Company, nor be construed as a contract of employment or service relationship between you and the Company, or as a contractual right for you to continue in the employ of, or in a service relationship with, the Company for any period of time, or as a limitation of the right of the Company to discharge you at any time with or without Cause or notice and whether or not such discharge results in the failure of any of the Restricted Stock Units to vest or any other adverse effect on your interests under the Plan.
12.No Rights as a Stockholder. You shall not have any of the rights of a stockholder with respect to the Restricted Stock Units until shares have been issued to you upon payment of your vested Restricted Stock Units. No adjustment will be made for dividends or distributions or other rights for which the record date is prior to the date such shares are issued.
13.The Company’s Rights. The existence of the Restricted Stock Units shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or other stocks with preference ahead of or convertible into, or otherwise affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of the Company's assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
14.Entire Agreement. This Agreement and the Plan contain the entire agreement between you and the Company with respect to the Restricted Stock Units. Any oral or written agreements, representations, warranties, written inducements, or other communications made prior to the execution of this Agreement with respect to the Restricted Stock Units shall be void and ineffective for all purposes.
15.Amendment. This Agreement may be amended from time to time by the Administrator in its discretion; provided, however, that this Agreement may not be modified in a manner that would have a materially adverse effect on the Restricted Stock Units as determined in the discretion of the Administrator, except as provided in the Plan or in a written document signed by you and the Company.
16.Conformity with Plan. This Agreement is intended to conform in all respects with, and is subject to all applicable provisions of, the Plan. Any conflict between the terms of this Agreement and the Plan shall be resolved in accordance with the terms of the Plan. In the event of any ambiguity in this Agreement or any matters as to which this Agreement is silent, the Plan shall govern. A copy of the Plan is provided to you with this Agreement.
17.Section 409A. This Agreement and the Restricted Stock Units granted hereunder are intended to be exempt from, or to comply with, Section 409A of the Code, to avoid the imposition of taxes under Code Section 409A. This Agreement and the Restricted Stock Units shall be administered, interpreted and construed in a manner consistent with this intent. Should any provision of the Plan or this Agreement be found not to be exempt from, or not to comply with, the provisions of Section 409A of the Code, it may be modified and given effect, in the sole discretion of the Administrator and without requiring your consent, in such manner as the Administrator determines to be necessary or appropriate to be exempt from, or to comply with, Section 409A of the Code. The foregoing, however, shall not be construed as a guarantee or warranty by the Company of any particular tax effect to you. In no event shall the Company have any liability to you for any taxes, penalties or interest that you may incur as a result of the application of Code Section 409A to your Restricted Stock Units or this Agreement.
18.Electronic Delivery of Documents. By your signing the Notice, you (i) consent to the electronic delivery of this Agreement, all information with respect to the Plan and the Restricted Stock Units, and any reports of the Company provided generally to the Company’s stockholders; (ii) acknowledge that you may receive from the Company a paper copy of any documents delivered electronically at no cost to you by contacting the Company by telephone or in writing; (iii) further acknowledge that you may revoke your consent to the electronic delivery of documents at any time by notifying the Company of such revoked consent by telephone, postal service or electronic mail; and (iv) further acknowledge that you understand that you are not required to consent to electronic delivery of documents.
19.No Future Entitlement. By execution of the Agreement, you acknowledge and agree that: (i) the grant of the Restricted Stock Units is a one-time benefit which does not create any contractual or other right to receive future grants of restricted stock units or other equity incentive awards, or compensation in lieu of equity incentive awards, even if equity incentive awards have been granted repeatedly in the past; (ii) all determinations with respect to any such future grants, including, but not limited to, the times when awards shall be granted or shall become exercisable, the maximum number of shares subject to each award, and the purchase price, if applicable, will be at the sole discretion of the Administrator; (iii) the value of these Restricted Stock Units is an extraordinary item of compensation which is outside the scope of your employment contract, if any; (iv) the value of these Restricted Stock Units is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any termination, severance,
resignation, redundancy, end of service payments or similar payments, or bonuses, long-service awards, pension or retirement benefits; (v) the vesting of these Restricted Stock Units ceases upon termination of employment with the Company or transfer of employment from the Company, or other cessation of eligibility for any reason, except as may otherwise be explicitly provided in this Agreement.
20.Personal Data. For the purpose of implementing, administering and managing these Restricted Stock Units, you, by execution of the Agreement, consent to the collection, receipt, use, retention and transfer, in electronic or other form, of your personal data by and among the Company and its third party vendors or any potential party to any Change in Control transaction or capital raising transaction involving the Company. You understand that personal data (including but not limited to, name, home address, telephone number, employee number, employment status, social security number, tax identification number, date of birth, nationality, job and payroll location, data for tax withholding purposes and shares awarded, cancelled, exercised, vested and unvested) may be transferred to third parties assisting in the implementation, administration and management of these Restricted Stock Units and the Plan and you expressly authorize such transfer as well as the retention, use, and the subsequent transfer of the data by the recipient(s). You understand that these recipients may be located in your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that data will be held only as long as is necessary to implement, administer and manage these Restricted Stock Units. You understand that you may, at any time, request a list with the names and addresses of any potential recipients of the personal data, view data, request additional information about the storage and processing of data, require any necessary amendments to data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Company’s Secretary. You understand, however, that refusing or withdrawing your consent may affect your ability to accept an equity incentive award.
21.Governing Law. The validity, construction and effect of this Agreement, and of any determinations or decisions made by the Administrator relating to this Agreement, and the rights of any and all persons having or claiming to have any interest under this Agreement, shall be determined exclusively in accordance with the laws of the State of Delaware, without regard to its provisions concerning the applicability of laws of other jurisdictions. As a condition of this Agreement, you agree that you will not bring any action arising under, as a result of, pursuant to or relating to, this Agreement in any court other than a federal or state court in the districts which include Delaware, and you hereby agree and submit to the personal jurisdiction of any federal court located in the district which includes Delaware or any state court in Delaware. You further agree that you will not deny or attempt to defeat such personal jurisdiction or object to venue by motion or other request for leave from any such court.
22.Resolution of Disputes. Any dispute or disagreement which shall arise under, or as a result of, or pursuant to or relating to, this Agreement shall be determined by the Administrator in good faith in its absolute and uncontrolled discretion, and any such determination or any other determination by the Administrator under or pursuant to this Agreement and any interpretation by the Administrator of the terms of this Agreement, will be final, binding and conclusive on all persons affected thereby. You agree that before you may bring any legal action arising under, as a result of, pursuant to or relating to, this Agreement you will first exhaust your administrative remedies before the Administrator. You further agree that in the event that the Administrator does not resolve any dispute or disagreement arising under, as a result of, pursuant to or relating to, this Agreement to your satisfaction, no legal action may be commenced or maintained relating to this Agreement more than twenty-four (24) months after the Administrator’s decision.
23.Headings. The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
{Glossary begins on next page}
GLOSSARY
(a)“Cause” has the meaning ascribed to such term or words of similar import in your written employment or service contract with the Company as in effect at the time at issue and, in the absence of such agreement or definition, means your (i) conviction of, or plea of nolo contendere to, a felony or crime involving moral turpitude; (ii) fraud on or misappropriation of any funds or property of the Company, any affiliate, customer or vendor; (iii) personal dishonesty, incompetence, willful misconduct, willful violation of any law, rule or regulation (other than minor traffic violations or similar offenses) or breach of fiduciary duty which involves personal profit; (iv) willful misconduct in connection with your duties or willful failure to perform your responsibilities in the best interests of the Company; (v) illegal use or distribution of drugs; (vi) violation of any Company rule, regulation, procedure or policy; or (vii) breach of any provision of any employment, non-disclosure, non-competition, non-solicitation or other similar agreement executed by you for the benefit of the Company, all as determined by the Administrator, which determination will be conclusive.
(b)“Initial Public Offering” means the closing of the Company’s first public offering of Common Stock pursuant to an effective registration statement filed under the Securities Act of 1933, as amended.
(c)“Restricted Stock Unit Notice” means the written notice evidencing the award of the Restricted Stock Units that correlates with and makes up a part of this Agreement.
(d)“Service” means your employment or other service relationship with the Company and its Affiliates. Your Service will be considered to have ceased with the Company and its Affiliates if, immediately after a sale, merger or other corporate transaction, the trade, business or entity with which you are employed or otherwise have a service relationship is not the Company or its successor or an Affiliate of the Company or its successor.
(e)“Total and Permanent Disability” means the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. The Administrator may require such proof of Total and Permanent Disability as the Administrator in its sole discretion deems appropriate and the Administrator’s good faith determination as to whether you are totally and permanently disabled will be final and binding on all parties concerned.
(f)“You” or “Your” means the recipient of the award of Restricted Stock Units as reflected on the Restricted Stock Unit Notice. Whenever the Agreement refers to “you” under circumstances where the provision should logically be construed, as determined by the Administrator, to apply to your estate, personal representative, or beneficiary to whom the Restricted Stock Units may be transferred by will or by the laws of descent and distribution, the word “you” shall be deemed to include such person.
FIRST AMENDMENT
TO THE HAWKEYE 360, INC.
2015 STOCK INCENTIVE PLAN
This First Amendment (this “Amendment”) to the HawkEye 360, Inc. 2015 Stock Incentive Plan (the “Plan”) shall be effective as of the date this Amendment is adopted by the Board of Directors of the Company (the “Board”) and the Company’s stockholders (such date, the “Effective Date”).
WHEREAS, HawkEye 360, Inc., a Delaware corporation (the “Company”), originally adopted the Plan on September 16, 2015
WHEREAS, the Board may, at any time, amend the Plan or any portion thereof.
WHEREAS, the Board finds it desirable and in the best interests of the Company and its stockholders to amend the Plan as set forth herein.
NOW, THEREFORE, the Plan is hereby amended, effective as of the Effective Date, as follows:
1. The first sentence of Section 4 is hereby deleted in its entirety and replaced with the foregoing:
“Subject to adjustments as provided in Section 7(d) of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 3,783,073 shares of Common Stock.”
2. Except as expressly set forth in this Amendment, all other terms and conditions set forth in the Plan shall remain in full force and effect. Capitalized terms used but not herein defined shall have the respective meanings set forth in the Plan.
AMENDMENT APPROVAL
Date Approved by the Board: November 22, 2016
Date Approved by the Stockholders: November 22, 2016
SECOND AMENDMENT
TO THE HAWKEYE 360, INC.
2015 STOCK INCENTIVE PLAN
This Second Amendment (this “Amendment”) to the HawkEye 360, Inc. 2015 Stock Incentive Plan (as amended, the “Plan”) shall be effective as of the date this Amendment is adopted by the Board of Directors of the Company (the “Board”) and the Company’s stockholders (such date, the “Effective Date”).
WHEREAS, HawkEye 360, Inc., a Delaware corporation (the “Company”), originally adopted the Plan on September 16, 2015, and adopted the First Amendment to the Plan on November 22, 2016.
WHEREAS, the Board may, at any time, amend the Plan or any portion thereof.
WHEREAS, the Board finds it desirable and in the best interests of the Company to amend the Plan as set forth herein.
NOW, THEREFORE, the Plan is hereby amended, effective as of the Effective Date, as follows:
1. The first sentence of Section 4 is hereby deleted in its entirety and replaced with the foregoing:
“Subject to adjustments as provided in Section 7(d) of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 4,320,381 shares of Common Stock.”
2. Except as expressly set forth in this Amendment, all other terms and conditions set forth in the Plan shall remain in full force and effect. Capitalized terms used but not herein defined shall have the respective meanings set forth in the Plan.
AMENDMENT APPROVAL
Date Approved by the Board: August 10, 2018
Date Approved by the Stockholders: August 10, 2018
THIRD AMENDMENT
TO THE HAWKEYE 360, INC.
2015 STOCK INCENTIVE PLAN
THIS THIRD AMENDMENT (this “Third Amendment”) to the HawkEye 360, Inc. 2015 Stock Incentive Plan (as amended, the “Plan”) shall be effective as of the date of this Amendment is adopted by the Board of Directors of the Company (the “Board”) and the Company’s stockholders (such date, the “Effective Date”).
RECITALS
WHEREAS, Hawkeye 360, Inc. a Delaware corporation (the “Company”), originally adopted the Plan on September 16, 2015, adopted the First Amendment to the Plan on November 22, 2016, and adopted the Second Amendment to the Plan on August 10, 2019.
WHEREAS, the Board may, at any time, amend the Plan or any portion thereof.
WHEREAS, the Board finds it desirable and in the best interests of the Company and its stockholders to amend the Plan as set forth herein.
NOW, THEREFORE, the Plan is hereby amended, effective as of the Effective Date, as follows:
1. The first sentence of Section 4 is hereby amended, effective as of the Effective Date as follows:
“Subject to adjustments as provided in Section 7(d) of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 6,696,874 shares of Common Stock.”
2. Except as expressly set forth in this Amendment, all other terms and conditions set forth in the Plan shall remain in full force and effect. Capitalized terms used but not herein defined shall have the respective meanings set forth in the Plan.
AMENDMENT APPROVAL
Date Approved by the Board: August 5, 2019
Date Approved by the Stockholders: August 5, 2019
FOURTH AMENDMENT
TO THE HAWKEYE 360, INC.
2015 STOCK INCENTIVE PLAN
This Fourth Amendment (this “Fourth Amendment”) to the HawkEye 360, Inc. 2015 Stock Incentive Plan (as amended, the “Plan”) shall be effective as of the date this Amendment is adopted by the Board of Directors of the Company (the “Board”)
RECITALS
WHEREAS, HawkEye 360, Inc. a Delaware corporation (the “Company”), originally adopted the Plan on September 16, 2015, adopted the First Amendment to the Plan on November 22, 2016, adopted the Second Amendment to the Plan on August 10, 2018, and adopted the Third Amendment to the Plan on August 5, 2019.
WHEREAS, the Board may, at any time, amend the Plan or any portion thereof.
WHEREAS, the Board finds it desirable and in the best interests of the Company to amend the Plan as set forth herein.
NOW, THEREFORE, the Plan is hereby amended, effective as of the Effective Date, as follows:
1. The first sentence of Section 4 of the Plan is hereby removed and replaced with the following language:
“Subject to adjustments as provided in Section 7(d) of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 6,946,874 shares of Common Stock.”
2. Except as expressly set forth in this Amendment, all other terms and conditions set forth in the Plan shall remain in full force and effect. Capitalized terms used but not herein defined shall have the respective meanings set forth in the Plan.
AMENDMENT APPROVAL
Date Approved by the Board: January 26, 2021 (via resolution at Board Meeting)
FIFTH AMENDMENT
TO THE HAWKEYE 360, INC.
2015 STOCK INCENTIVE PLAN
THIS FIFTH AMENDMENT (this “Fifth Amendment”) to the HawkEye 360, Inc. 2015 Stock Incentive Plan (as amended, the “Plan”) shall be effective as of the date (the “Effective Date”) this Fifth Amendment is adopted by the Board of Directors of HawkEye 360, Inc., a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the Company originally adopted the Plan on September 16, 2015, adopted the First Amendment to the Plan on November 22, 2016, adopted the Second Amendment to the Plan on August 10, 2018, adopted the Third Amendment to the Plan on August 5, 2019, and adopted the Fourth Amendment to the Plan on January 26, 2021.
WHEREAS, the Board may, at any time, amend the Plan or any portion thereof.
WHEREAS, the Board finds it desirable and in the best interests of the Company and its stockholders to amend the Plan as set forth herein.
NOW, THEREFORE, the Plan is hereby amended, effective as of the Effective Date, as follows:
1. The first sentence of Section 4 of the Plan is hereby deleted in its entirety and replaced with the foregoing:
“Subject to adjustments as provided in Section 7(d) of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 10,056,916 shares of Common Stock.”
2. Except as expressly set forth in this Amendment, all other terms and conditions set forth in the Plan shall remain in full force and effect. Capitalized terms used but not herein defined shall have the respective meanings set forth in the Plan.
AMENDMENT APPROVAL
| | | | | |
| Approved by the Company’s Board of Directors: | April 9, 2021 |
| Adopted by the Company’s Stockholders: | April 9, 2021 |
SIXTH AMENDMENT
TO THE HAWKEYE 360, INC.
2015 STOCK INCENTIVE PLAN
THIS SIXTH AMENDMENT (this “Sixth Amendment”) to the HawkEye 360, Inc. 2015 Stock Incentive Plan (as amended, the “Plan”) shall be effective as of the date (the “Effective Date”) this Sixth Amendment is adopted by the Board of Directors of HawkEye 360, Inc., a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the Company originally adopted the Plan on September 16, 2015, adopted the First Amendment to the Plan on November 22, 2016, adopted the Second Amendment to the Plan on August 10, 2018, adopted the Third Amendment to the Plan on August 5, 2019, adopted the Fourth Amendment to the Plan on January 26, 2021, adopted the Fifth Amendment to the Plan on April 9, 2021 and adopted the Sixth Amendment to the Plan on November 5, 2021.
WHEREAS, the Board may, at any time, amend the Plan or any portion thereof.
WHEREAS, the Board finds it desirable and in the best interests of the Company and its stockholders to amend the Plan as set forth herein.
NOW, THEREFORE, the Plan is hereby amended, effective as of the Effective Date, as follows:
1. The first sentence of Section 4 of the Plan is hereby deleted in its entirety and replaced with the foregoing:
“Subject to adjustments as provided in Section 7(d) of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 12,626,842 shares of Common Stock.”
2. Except as expressly set forth in this Amendment, all other terms and conditions set forth in the Plan shall remain in full force and effect. Capitalized terms used but not herein defined shall have the respective meanings set forth in the Plan.
AMENDMENT APPROVAL
| | | | | |
| Approved by the Company’s Board of Directors: | November 5, 2021 |
| Adopted by the Company’s Stockholders: | November 5, 2021 |
SEVENTH AMENDMENT
TO THE HAWKEYE 360, INC.
2015 STOCK INCENTIVE PLAN
THIS SECOND AMENDMENT (this “Seventh Amendment”) to the HawkEye 360, Inc. 2015 Stock Incentive Plan (as amended, the “Plan”) shall be effective as of the date (the “Effective Date”) this Seventh Amendment is adopted by the Board of Directors of HawkEye 360, Inc., a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the Company originally adopted the Plan on September 16, 2015, adopted the First Amendment to the Plan on November 22, 2016, adopted the Second Amendment to the Plan on August 10, 2018, adopted the Third Amendment to the Plan on August 5, 2019, adopted the Fourth Amendment to the Plan on January 26, 2021, adopted the Fifth Amendment to the Plan on April 9, 2021 and adopted the Sixth Amendment to the Plan on November 5, 2021.
WHEREAS, the Board may, at any time, amend the Plan or any portion thereof.
WHEREAS, the Board finds it desirable and in the best interests of the Company and its stockholders to amend the Plan as set forth herein.
NOW, THEREFORE, the Plan is hereby amended, effective as of the Effective Date, as follows:
1. The first sentence of Section 4 of the Plan is hereby deleted in its entirety and replaced with the foregoing:
“Subject to adjustments as provided in Section 7(d) of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 16,408,600 shares of Common Stock.”
2. Except as expressly set forth in this Seventh Amendment, all other terms and conditions set forth in the Plan shall remain in full force and effect. Capitalized terms used but not herein defined shall have the respective meanings set forth in the Plan.
AMENDMENT APPROVAL
| | | | | |
| Approved by the Company’s Board of Directors: | July 7, 2023 |
| Adopted by the Company’s Stockholders: | July 7, 2023 |
EIGHTH AMENDMENT
TO THE HAWKEYE 360, INC.
2015 STOCK INCENTIVE PLAN
THIS EIGHTH AMENDMENT (this “Eighth Amendment”) to the HawkEye 360, Inc. 2015 Stock Incentive Plan (as amended, the “Plan”) shall be effective as of the date (the “Effective Date”) this Eighth Amendment is adopted by the Board of Directors of Hawkeye 360, Inc., a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the Company originally adopted the Plan on September 16, 2015, adopted the First Amendment to the Plan on November 22, 2016, adopted the Second Amendment to the Plan on August 10, 2018, adopted the Third Amendment to the Plan on August 5, 2019, adopted the Fourth Amendment to the Plan on January 26, 2021, adopted the Fifth Amendment to the Plan on April 9, 2021, adopted the Sixth Amendment to the Plan on November 5, 2021, and adopted the Seventh Amendment to the Plan (the “Seventh Amendment”) on July 7, 2023 (the “Seventh Amendment Effective Date”).
WHEREAS, by operation of the Seventh Amendment, the Plan was deemed re-adopted by the Board and the security holders of the Company and as such, the termination date of the Plan was extended to July 7, 2033, which is 10 years from the Seventh Amendment Effective Date.
WHEREAS, the Board may, at any time, amend the Plan or any portion thereof.
WHEREAS, the Board finds it desirable and in the best interests of the Company and its stockholders to amend the Plan as set forth herein.
NOW, THEREFORE, the Plan is hereby amended, effective as of the Effective Date, as follows:
1. The first sentence of Section 4 of the Plan is hereby deleted in its entirety and replaced with the foregoing:
“Subject to adjustments as provided in Section 7(d) of the Plan, the shares of Common Stock that may be issued with respect to Awards granted under the Plan shall not exceed an aggregate of 19,908,600 shares of Common Stock.”
2. Except as expressly set forth in this Eighth Amendment, all other terms and conditions set forth in the Plan shall remain in full force and effect until July 7, 2033. Capitalized terms used but not herein defined shall have the respective meanings set forth in the Plan.
EIGHTH AMENDMENT APPROVAL
| | | | | |
| Approved by the Company’s Board of Directors: | December 18, 2025 |
| Adopted by the Company’s Stockholders: | December 18, 2025 |
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is dated as of _________, 2026 (this “Agreement”) and is between HawkEye 360, Inc., a Delaware public benefit corporation (the “Company”), and [Name] (“Indemnitee”).
Background
The Company believes that in order to attract and retain highly competent persons to serve as directors or in other capacities, including as officers, it must provide such persons with adequate protection through indemnification against the risks of claims and actions against them arising out of their services to and activities on behalf of the Company.
The Company desires and has requested Indemnitee to serve as a director and/or officer of the Company and, in order to induce the Indemnitee to serve in such capacity, the Company is willing to grant the Indemnitee the indemnification provided for herein. Indemnitee is willing to so serve on the basis that such indemnification be provided.
The parties by this Agreement desire to set forth their agreement regarding indemnification and the advancement of expenses.
In consideration of Indemnitee’s service to the Company, the covenants and agreements set forth below and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Indemnification.
To the fullest extent permitted by the General Corporation Law of the State of Delaware (the “DGCL”):
(a) The Company shall indemnify Indemnitee if Indemnitee was or is made or is threatened to be made a party to, or is otherwise involved in, as a witness or otherwise, any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative, regulatory or investigative and whether formal or informal, including appeals, by reason of the fact that Indemnitee is or was or has agreed to serve as a director and/or officer of the Company, or, while serving in such capacity, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement or advancement of expenses can be provided under this Agreement.
(b) The indemnification provided by this Section 1 shall be from and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by or on behalf of Indemnitee in connection with such action, suit or proceeding, including any appeals.
(c) If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of any expenses, losses, liabilities, judgments, fines and amounts paid in
settlement incurred by Indemnitee, but not for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for such portion.
Section 2. Advance Payment of Expenses. To the fullest extent permitted by the DGCL, expenses (including attorneys’ fees) incurred by Indemnitee in appearing at, participating in or defending any action, suit or proceeding or in connection with an enforcement action as contemplated by Section 3(e), shall be paid by the Company in advance of the final disposition of such action, suit or proceeding within 30 days after receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances (including any invoices received by Indemnitee, which invoices may be redacted as necessary to avoid the waiver of any privilege accorded by applicable law) from time to time. The Indemnitee hereby undertakes to repay any amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled under this Agreement to be indemnified by the Company in respect thereof. Such repayment obligation shall be unsecured and shall not bear interest. The Company shall not impose on Indemnitee additional conditions to advancement or require from Indemnitee additional undertakings regarding repayment other than the execution of this Agreement. The Company agrees that for the purposes of any advancement of expenses for which Indemnitee has made a written demand in accordance with this Agreement, all expenses included in such demand that are certified by affidavit of Indemnitee’s counsel as being reasonable shall be presumed conclusively to be reasonable. This Section 2 shall be subject to Section 3(b) and shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 7 and Section 8.
Section 3. Procedure for Indemnification; Notification and Defense of Claim.
(a) Promptly after receipt by Indemnitee of notice of the commencement of any action, suit or proceeding, Indemnitee shall, if a claim in respect thereof is to be made against the Company hereunder, notify the Company in writing of the commencement thereof. The failure to promptly notify the Company of the commencement of the action, suit or proceeding, or of Indemnitee’s request for indemnification, will not relieve the Company from any liability that it may have to Indemnitee hereunder, except to the extent the Company is actually and materially prejudiced in its defense of such action, suit or proceeding as a result of such failure. To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request therefor including such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to enable the Company to determine whether and to what extent Indemnitee is entitled to indemnification.
(b) With respect to any action, suit or proceeding of which the Company is so notified as provided in this Agreement, the Company shall, subject to the last two sentences of this paragraph, be entitled to assume the defense of such action, suit or proceeding, with counsel reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any subsequently-incurred fees of separate counsel engaged by Indemnitee with respect to the same action, suit or proceeding unless the employment of separate counsel by Indemnitee has been previously authorized in writing by the Company. Notwithstanding the foregoing, if Indemnitee, based on the advice of his or her counsel, shall have reasonably concluded (with written notice being given to the Company setting forth the basis for such conclusion) that, in the conduct of any such defense, there is or is reasonably likely to be a conflict of interest or position between the Company and Indemnitee with respect to a significant issue, then the Company will not be entitled, without the written consent of Indemnitee, to assume such defense. In addition, the Company will not be entitled, without the written consent of Indemnitee, to assume the defense of any claim brought by or in the right of the Company.
(c) To the fullest extent permitted by the DGCL, the Company’s assumption of the defense of an action, suit or proceeding in accordance with paragraph 3(b) will constitute an irrevocable acknowledgement by the Company that any loss and liability suffered by Indemnitee and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement by or for the account of Indemnitee incurred in connection therewith are indemnifiable by the Company under Section 1 of this Agreement.
(d) The determination whether to grant Indemnitee’s indemnification request shall be made promptly and in any event within 30 days following the Company’s receipt of a request for indemnification in accordance with Section 3(a). If the Company determines that Indemnitee is entitled to such indemnification or, as contemplated by paragraph 3(c) the Company has acknowledged such entitlement, the Company will make payment to Indemnitee of the indemnifiable amount within such 30 day period. If the Company is not deemed to have so acknowledged such entitlement or the Company’s determination of whether to grant Indemnitee’s indemnification request shall not have been made within such 30 day period, the requisite determination of entitlement to indemnification shall, subject to Section 7, nonetheless be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under the DGCL.
(e) In the event that (i) the Company determines in accordance with this Section 3 that Indemnitee is not entitled to indemnification, in whole or in part, under this Agreement, (ii) the Company fails to respond or make a determination of entitlement to indemnification within 30 days following receipt of a request for indemnification as described above, (iii) payment of indemnification is not made within such 30 day period, (iv) advancement of expenses is not timely made in accordance with Section 2, or (v) the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication in any court of competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses. Indemnitee’s expenses (including attorneys’ fees) incurred in connection with successfully establishing Indemnitee’s right to indemnification or advancement of expenses, in whole or in part, in any such proceeding or otherwise shall also be indemnified by the Company to the fullest extent permitted by the DGCL.
(f) Indemnitee shall be presumed to be entitled to indemnification and advancement of expenses under this Agreement upon submission of a request therefor in accordance with Section 2 or Section 3 of this Agreement, as the case may be. The Company shall have the burden of proof in overcoming such presumption, and such presumption shall be used as a basis for a determination of entitlement to indemnification and advancement of expenses unless the Company overcomes such presumption by clear and convincing evidence.
(g) Determination of “Good Faith” and “Best Interests of the Company.” In the absence of a conflict of interest, no failure to satisfy the balancing requirement described in Subchapter XV of the DGCL shall, for the purposes of this Agreement, constitute an act or omission not in good faith or in a manner not reasonably believed to be in or opposed to the best interests of the Company. An Indemnitee’s ownership of or other interest in the stock of the Company shall not alone, for the purposes of this Agreement, create a conflict of interest on the part of the Indemnitee with respect to the Indemnitee’s decision implicating the balancing requirement in Subchapter XV of the DGCL, except to the extent that such ownership or interest would create a conflict of interest if the Company was not a public benefit corporation..
Section 4. Change in Control.
(a) The Company agrees that if there is a change in control of the Company, then with respect to all matters thereafter arising concerning the rights of Indemnitee to indemnification and advancement of expenses under this Agreement, any other agreement or the Company’s certificate of incorporation or by-laws now or hereafter in effect, the Company shall seek legal advice only from independent counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld). In addition, upon written request by Indemnitee for indemnification pursuant to Section 3(a), a determination, if required by the DGCL, with respect to Indemnitee's entitlement thereto shall be made by such independent counsel in a written opinion to the Board of Directors of the Company, a copy of which shall be delivered to Indemnitee. The Company agrees to pay the reasonable and documented fees of the independent counsel referred to above.
(b) For purposes of this Section 4, the following definitions shall apply:
(i) A “change in control” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following: (A) any person (as defined below) becomes the beneficial owner (as defined below), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the combined voting power of the Company's then outstanding securities, (B) during any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board of Directors of the Company, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 4(b)(i)(A), 4(b)(i)(C) or 4(b)(i)(D) or a director whose initial nomination for, or assumption of office as, a member of the Board of Directors of the Company occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the Board of Directors of the Company) whose election by the Board of the Directors of the Company or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board of Directors of the Company, (C) the effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity, and (D) the approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets.
For purposes of Section 4(b)(i), the following terms shall have the following meanings:
(I) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
(II) “person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that person shall exclude (a) the Company, (b) any trustee or other fiduciary holding securities under an employee benefit plan of the
Company, and (c) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.
(III) “beneficial owner” shall have the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that beneficial owner shall exclude any person otherwise becoming a beneficial owner by reason of the stockholders of the Company approving a merger of the Company with another entity.
(ii) The term “independent counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (A) the Company or Indemnitee in any matter material to either such party, or (B) any other party to the action, suit or proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “independent counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee's rights under this Agreement.
Section 5. Insurance and Subrogation.
(a) The Company may purchase and maintain a policy or policies of insurance, providing Indemnitee with coverage for any liability asserted against, and incurred by, Indemnitee or on Indemnitee’s behalf by reason of the fact that Indemnitee is or was or has agreed to serve as a director and/or officer of the Company, or, while serving in such capacity, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, fiduciary, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or arising out of Indemnitee’s status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement. If the Company has such insurance in effect at the time the Company receives from Indemnitee any notice of the commencement of an action, suit or proceeding, the Company shall give prompt notice of the commencement of such action, suit or proceeding to the insurers in accordance with the procedures set forth in the policy. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policy.
(b) [Subject to Section 5(d), i][I]n the event of any payment by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee with respect to any insurance policy. Indemnitee shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights in accordance with the terms of such insurance policy. The Company shall pay or reimburse all expenses actually and reasonably incurred by Indemnitee in connection with such subrogation.
(c) [Subject to Section 5(d),t][T]he Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder (including, but not limited to, judgments, fines and amounts paid in settlement) if and to the extent that Indemnitee has otherwise actually received such payment under this Agreement or any insurance policy, contract, agreement or otherwise.
[(d) Jointly Indemnifiable Claims. Given that certain jointly indemnifiable claims may arise due to the service of the Indemnitee as a director and/or officer of the Company at the request of the Indemnitee-related entities, the Company acknowledges and agrees that the Company shall be fully and primarily responsible for the payment to the Indemnitee in respect of indemnification or advancement of expenses in connection with any such jointly indemnifiable claim, pursuant to and in accordance with the terms of this Agreement, irrespective of any right of recovery the Indemnitee may have from the Indemnitee-related entities. Under no circumstance shall the Company be entitled to any right of subrogation against or contribution by the Indemnitee-related entities and no right of advancement, indemnification or recovery the Indemnitee may have from the Indemnitee-related entities shall reduce or otherwise alter the rights of the Indemnitee or the obligations of the Company hereunder. In the event that any of the Indemnitee-related entities shall make any payment to the Indemnitee in respect of indemnification or advancement of expenses with respect to any jointly indemnifiable claim, the Indemnitee-related entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee against the Company, and Indemnitee shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the Indemnitee-related entities effectively to bring suit to enforce such rights. The Company and Indemnitee agree that each of the Indemnitee-related entities shall be third-party beneficiaries with respect to this Section 5(d), entitled to enforce this Section 5(d) as though each such Indemnitee-related entity were a party to this Agreement.
For purposes of this Section 5(d), the following terms shall have the following meanings:
(i) The term “Indemnitee-related entities” means any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the Company or any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise Indemnitee has agreed, on behalf of the Company or at the Company’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described in this Agreement) from whom an Indemnitee may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the Company may also have an indemnification or advancement obligation (other than as a result of obligations under an insurance policy).
(ii) The term “jointly indemnifiable claims” shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which the Indemnitee shall be entitled to indemnification or advancement of expenses from both the Indemnitee-related entities and the Company pursuant to the DGCL, any agreement or the certificate of incorporation, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Company or the Indemnitee-related entities, as applicable.]1
Section 6. Certain Definitions. For purposes of this Agreement, the following definitions shall apply:
(a) The term “action, suit or proceeding” shall be broadly construed and shall include, without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed claim, action, suit, arbitration, alternative dispute mechanism or proceeding, whether civil, criminal, administrative or investigative.
1Included for fund directors only.
(b) The term “by reason of the fact that Indemnitee is or was or has agreed to serve as a director and/or officer of the Company, or, while serving in such capacity, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise” shall be broadly construed and shall include, without limitation, any actual or alleged act or omission to act.
(c) The term “expenses” shall be broadly construed and shall include, without limitation, all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees and related disbursements, appeal bonds, other out-of-pocket costs and reasonable compensation for time spent by Indemnitee for which Indemnitee is not otherwise compensated by the Company or any third party), actually and reasonably incurred by Indemnitee in connection with either the investigation, defense or appeal of an action, suit or proceeding or establishing or enforcing a right to indemnification under this Agreement or otherwise incurred in connection with a claim that is indemnifiable hereunder.
(d) The term “judgments, fines and amounts paid in settlement” shall be broadly construed and shall include, without limitation, all direct and indirect payments of any type or nature whatsoever, as well as any penalties or excise taxes assessed on a person with respect to an employee benefit plan).
Section 7. Limitation on Indemnification. Notwithstanding any other provision herein to the contrary, the Company shall not be obligated pursuant to this Agreement:
(a) Claims Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee with respect to an action, suit or proceeding (or part thereof) initiated by Indemnitee, except with respect to any compulsory counterclaim brought by Indemnitee or an action, suit or proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Agreement (which shall be governed by the provisions of Section 7(b) of this Agreement), unless such action, suit or proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Company (the “Board”).
(b) Action for Indemnification. To indemnify Indemnitee for any expenses incurred by Indemnitee with respect to any action, suit or proceeding instituted by Indemnitee to enforce or interpret this Agreement, unless Indemnitee is successful in such action, suit or proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by the DGCL), or unless and to the extent that the court in such action, suit or proceeding shall determine that, despite Indemnitee’s failure to establish their right to indemnification, Indemnitee is entitled to indemnification for such expenses; provided, however, that nothing in this Section 7(b) is intended to limit the Company’s obligations with respect to the advancement of expenses to Indemnitee in connection with any such action, suit or proceeding instituted by Indemnitee to enforce or interpret this Agreement, as provided in Section 2 hereof.
(c) Certain Exchange Act Claims. To indemnify Indemnitee in connection with any action, suit or proceeding made against Indemnitee for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or similar provisions of state statutory law or common law, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized
by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act.
(d) Fraud or Willful Misconduct. To indemnify Indemnitee on account of conduct by Indemnitee where such conduct has been determined by a final (not interlocutory) judgment or other adjudication of a court or arbitration or administrative body of competent jurisdiction as to which there is no further right or option of appeal or the time within which an appeal must be filed has expired without such filing to have been knowingly fraudulent or constitute willful misconduct.
(e) Prohibited by Law. To indemnify Indemnitee in any circumstance where such indemnification has been determined by a final (not interlocutory) judgment or other adjudication of a court or arbitration or administrative body of competent jurisdiction as to which there is no further right or option of appeal, or the time within which an appeal must be filed has expired without such filing having been made, to be prohibited by law.
Section 8. Certain Settlement Provisions. The Company shall have no obligation to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action, suit or proceeding without the Company’s prior written consent. The Company shall not settle any action, suit or proceeding in any manner that would impose any fine or other obligation on Indemnitee without Indemnitee’s prior written consent. Neither the Company nor Indemnitee will unreasonably withhold his, her, its or their consent to any proposed settlement.
Section 9. Savings Clause. If any provision or provisions (or portion thereof) of this Agreement shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify Indemnitee if Indemnitee was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit or proceeding (brought in the right of the Company or otherwise), whether civil, criminal, administrative or investigative and whether formal or informal, including appeals, by reason of the fact that Indemnitee is or was or has agreed to serve as a director and/or officer of the Company, or, while serving in such capacity, is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent (which, for purposes hereof, shall include a trustee, partner or manager or similar capacity) of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, from and against all loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred by or on behalf of Indemnitee in connection with such action, suit or proceeding, including any appeals, to the fullest extent permitted by any applicable portion of this Agreement that shall not have been invalidated.
Section 10. Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for herein is held by a court of competent jurisdiction to be unavailable to Indemnitee in whole or in part, it is agreed that, in such event, the Company shall, to the fullest extent permitted by law, contribute to the payment of all of Indemnitee’s loss and liability suffered and expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement reasonably incurred by or on behalf of Indemnitee in connection with any action, suit or proceeding, including any appeals, in an amount that is just and equitable in the circumstances; provided that, without limiting the generality of the foregoing, such contribution shall not be required where such holding by the court is due to any limitation on indemnification set forth in Section 5(c), 7 (other than clause (e)) or 8 hereof.
Section 11. Form and Delivery of Communications. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand, upon receipt by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier, one day after deposit with such courier and with written verification of receipt, or (d) sent by email or facsimile transmission, with receipt of oral confirmation that such transmission has been received. Notice to the Company shall be directed to HawkEye 360, Inc., 450 Springpark Place, Suite 500, Herndon, VA 20170 Attention: Legal Department/Corporate Secretary, email: legal@he360.com. Notice to Indemnitee shall be directed to [•], email: [•].
Section 12. Nonexclusivity. The provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other rights which Indemnitee may have under any provision of law, in any court in which a proceeding is brought, the Company’s certificate of incorporation or by-laws, other agreements or otherwise, and Indemnitee’s rights hereunder shall inure to the benefit of the heirs, executors and administrators of Indemnitee. No amendment or alteration of the Company’s certificate of incorporation or by-laws or any other agreement shall adversely affect the rights provided to Indemnitee under this Agreement.
Section 13. No Construction as Employment Agreement. Nothing contained herein shall be construed as giving Indemnitee any right to be retained as a director of the Company or in the employ of the Company. For the avoidance of doubt, the indemnification and advancement of expenses provided under this Agreement shall continue as to the Indemnitee even though Indemnitee may have ceased to be a director or officer of the Company.
Section 14. Interpretation of Agreement. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide indemnification to Indemnitee to the fullest extent now or hereafter permitted by the DGCL.
Section 15. Entire Agreement. This Agreement and the documents expressly referred to herein constitute the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect to the matters covered hereby are expressly superseded by this Agreement.
Section 16. Modification and Waiver. No supplement, modification, waiver or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver. For the avoidance of doubt, this Agreement may not be terminated by the Company without Indemnitee’s prior written consent.
Section 17. Successor and Assigns. All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors, assigns, heirs, executors, administrators and legal representatives. The Company
shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by written agreement in form and substance reasonably satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
Section 18. Service of Process and Venue. The Company and Indemnitee hereby irrevocably and unconditionally (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware (the “Delaware Court”), and not in any other state or federal court in the United States of America or any court in any other country, (b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (c) appoint, to the extent such party is not otherwise subject to service of process in the State of Delaware, irrevocably The Corporation Trust Company, at Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, 19801, as its agent in the State of Delaware as such party’s agent for acceptance of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served upon such party personally within the State of Delaware, (d) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court, and (e) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
Section 19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. If a court of competent jurisdiction shall make a final determination that the provisions of the law of any state other than Delaware govern indemnification by the Company of Indemnitee, then the indemnification provided under this Agreement shall in all instances be enforceable to the fullest extent permitted under such law, notwithstanding any provision of this Agreement to the contrary.
Section 20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument, notwithstanding that both parties are not signatories to the original or same counterpart.
Section 21. Headings and Section References. The section and subsection headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Section references are to this Agreement unless otherwise specified.
This Indemnification Agreement has been duly executed and delivered to be effective as of the date stated above.
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| HAWKEYE 360, INC. |
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| By | |
| Name: | Michael Turner |
| Title: | Chief Legal Officer |
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| |
| |
| INDEMNITEE: |
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| Name: | |
HAWKEYE360, INC.
_______, 2026
John Serafini
Via Email
Re: Confirmatory Offer Letter
Dear John,
You are currently employed by Hawkeye 360, Inc. (the “Company” or “Hawkeye”) as Chief Executive Officer. As discussed, this confirmatory offer letter (this “Agreement”) confirms the existing terms and conditions of your employment in that role and establishes your eligibility for severance benefits and is intended to replace and supersede any previously executed agreement covering the subject matter herein, including but not limited to your Offer Letter dated November 21, 2016 (the “Prior Agreement”). This Agreement will be contingent upon the execution of the underwriting agreement between the Company and the underwriter(s) managing the initial public offering of the Company’s common stock, pursuant to which the common stock is priced for the initial public offering (the “IPO”), and will be effective upon the pricing of the IPO (the “Effective Date”).
1.Position. You will continue to serve in a full-time capacity, reporting to the Company’s Board of Directors (the “Board”). You will continue to work from your primary work location as of the date of this Agreement, with business travel as reasonably requested by the Company. You will continue to serve as a director on the Board, provided that upon the termination of your employment for any reason, you will be deemed to have automatically resigned from your position on the Board (including any committee thereof). The Company may change your position, duties, and work location from time to time in its discretion.
2.Cash Compensation and Benefits.
As of the Effective Date, your salary will be increased to the rate of USD $750,000 on an annualized basis (“Base Salary”), which will be paid in accordance with the Company's normal payroll procedures and subject to applicable payroll withholdings and deductions. Your Base Salary is subject to review and adjustment by the Company in its sole discretion.
As of the Effective Date, you will be eligible to earn an annual discretionary bonus (the “Annual Bonus”) with a target of one hundred percent (100%) of your base salary (the “Target Amount”). The amount of this Annual Bonus, if any, will be determined in the sole discretion of the Board and will be based on the Board’s assessment of the achievement of management and Board-approved corporate and personal performance objectives (“MBOs”) for the applicable calendar year, as well as any other criteria the Board deems relevant. The Annual Bonus may be more or less than the Target Amount and may be zero. Except as otherwise explicitly set forth in the Severance Plan (as defined below), you must be employed by the Company on the Annual Bonus payment date in order to earn the Annual Bonus and no pro-rated amount will be paid if your employment terminates for any reason prior to such payment date.
As a full-time, regular employee of Hawkeye, you will remain eligible for Company benefits in accordance with the Company’s applicable benefit plans and policies for similarly-situated
employees, subject to plan terms, generally-applicable Company policies, and any applicable waiting periods.
3.Equity. You have previously been granted one or more equity awards by the Company, which shall continue to be governed in all respects by the terms of the applicable equity agreements, grant notices, and equity plans, subject to terms of the Severance Plan.
4.Company Policies. You will continue to be expected to abide by Company policies and procedures, as in effect from time to time.
5.Outside Activities. You will not, while employed by the Company, undertake or engage in any other employment, occupation or business enterprise that would interfere with your responsibilities and the performance of your duties hereunder, except for (i) reasonable time devoted to volunteer services for or on behalf of such religious, educational, non-profit and/or other charitable organization as you may wish to serve, (ii) reasonable time devoted to activities in the non-profit and business communities consistent with your duties, (iii) engagement as an investment partner at Shield Capital or its equivalent investment entity, (iv) U.S. military reserves service and (v) such other activities as may be specifically approved in writing by the Board. This restriction shall not, however, preclude you (a) from owning less than one percent (1%) of the total outstanding shares of a publicly-traded company, or (b) from employment or service in any capacity with any affiliates of the Company.
6.Confidential Information Agreement. As a condition of continued employment under the terms of this Agreement, you are required to timely execute and comply with the enclosed Employee Confidential Information and Inventions Assignment Agreement, which will supersede and replace any previously executed agreement concerning the subject matter therein (the “Confidential Information Agreement”).
7.At-Will Employment. Your employment with the Company is for no specified period and constitutes at-will employment. Accordingly, you may terminate your employment with the Company at any time simply by notifying the Company, and the Company may terminate your employment at any time for any reason, with or without advance notice.
8.Severance. As of the Effective Date, you will be eligible to participate in the Hawkeye 360, Inc. Severance Plan (the “Severance Plan”), which has been designed to enhance your severance eligibility, including severance eligiblity set forth in your Prior Agreement (if any). In order to participate in the Severance Plan, you will be required to timely execute and return to the Company this Agreement, the Confidential Information Agreement, and the enclosed Participation Agreement hereto.
9.No Prior Conflicts and Duty of Loyalty. You confirm that you are able to carry out your duties without breaching any legal restrictions imposed by a current or former employer or other third party to whom you have contractual obligations. You also agree that, during the term of your continued employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with the performance of your duties hereunder or present a conflict of interest with the Company.
10.Arbitration. To aid the rapid and economical resolution of disputes that may arise in connection with your employment with the Company, and in exchange for the mutual promises contained in this offer letter, you and the Company agree that any and all disputes, claims, or causes of action, in law or equity, including but not limited to statutory claims, including, but not limited to, the Massachusetts Antidiscrimination Act, Mass. Gen. Laws ch.151B and the Massachusetts Wage Act, Mass. Gen. Laws ch. 149), arising from or relating to the enforcement, breach, performance, or interpretation of this Agreement, your employment with the Company, or the termination of your employment, shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration conducted by JAMS, Inc. (“JAMS”) or its successor, under JAMS’ then applicable rules and procedures appropriate to the relief being sought (available upon request and also currently available at the following web address: (i) https://www.jamsadr.com/rules-employment-arbitration/) and (ii) https://www.jamsadr.com/rules-comprehensive-arbitration/) at a location closest to where you last worked for the Company or another mutually agreeable location. Notwithstanding the foregoing, if JAMS is unavailable due to location or otherwise, or if the parties mutually agree, then the arbitration shall be conducted by the American Arbitration Association (“AAA”) or its successor, under AAA’s then applicable rules and procedures appropriate to the relief being sought (available upon request and also currently available at the following web address: https://www.adr.org/sites/default/files/EmploymentRules-Web.pdf), at a location closest to where you last worked for the Company or another mutually agreeable location. You acknowledge that by agreeing to this arbitration procedure, both you and the Company waive the right to resolve any such dispute through a trial by jury or judge. The Federal Arbitration Act, 9 U.S.C. § 1 et seq., will, to the fullest extent permitted by law, govern the interpretation and enforcement of this arbitration agreement and any arbitration proceedings. This provision shall not be mandatory for any claim or cause of action to the extent applicable law prohibits subjecting such claim or cause of action to mandatory arbitration and such applicable law is not preempted by the Federal Arbitration Act or otherwise invalid (collectively, the “Excluded Claims”), such as non-individual claims that cannot be waived under applicable law, claims or causes of action alleging sexual harassment or a nonconsensual sexual act or sexual contact, or unemployment or workers’ compensation claims brought before the applicable state governmental agency. In the event you or the Company intend to bring multiple claims, including one of the Excluded Claims listed above, the Excluded Claims may be filed with a court, while any other claims will remain subject to mandatory arbitration. Nothing herein prevents you from filing and pursuing proceedings before a federal or state governmental agency, although if you choose to pursue a claim following the exhaustion of any applicable administrative remedies, that claim would be subject to this provision. In addition, with the exception of Excluded Claims arising out of 9 U.S.C. § 401 et seq., all claims, disputes, or causes of action under this section, whether by you or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class, representative, or collective proceeding, nor joined or consolidated with the claims of any other person or entity. You acknowledge that by agreeing to this arbitration procedure, both you and the Company waive all rights to have any dispute be brought, heard, administered, resolved, or arbitrated on a class, representative, or collective action basis. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. If a court finds, by means of a final decision, not subject to any further appeal or recourse, that the preceding sentences regarding class, representative, or collective claims or proceedings violate applicable law or are otherwise found unenforceable as to a particular claim or request for relief, the parties agree that any such claim(s) or request(s) for relief be severed from the arbitration and may proceed in a court of law rather than by arbitration. All other claims or
requests for relief shall be arbitrated. You will have the right to be represented by legal counsel at any arbitration proceeding. Questions of whether a claim is subject to arbitration and procedural questions which grow out of the dispute and bear on the final disposition are matters for the arbitrator to decide, provided however, that if required by applicable law, a court and not the arbitrator may determine the enforceability of this paragraph with respect to Excluded Claims. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a written statement signed by the arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and conclusions on which the award is based. The arbitrator shall be authorized to award all relief that you or the Company would be entitled to seek in a court of law. You and the Company shall equally share all arbitration administrative fees, or such fees shall be paid in such other manner to the extent required by, and in accordance with, applicable law or rules to effectuate your and the Company’s agreement to arbitrate. To the extent the arbitration service does not collect or you otherwise do not pay an equal share of all arbitration administrative fees, and the Company pays your share, you acknowledge and agree that the Company shall be entitled to recover from you in a federal or state court of competent jurisdiction half of the arbitration fees invoiced to the parties (less any amounts you paid to the arbitration service). Each party is responsible for its own attorneys’ fees, except as may be expressly set forth in your Confidential Information Agreement or as otherwise provided under applicable law. Nothing in this Agreement is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction.
You acknowledge and agree that upon your execution of this Agreement, you will no longer be eligible for, nor entitled to, any compensation or benefits (including without limitation, any severance or change in control benefits) under any prior employment terms, offer letter or employment agreement you may have entered into or discussed with the Company, including but not limited to your Prior Agreement. This Agreement, together with your Confidential Information Agreement, equity agreements, the Severance Plan and other agreements referenced herein, forms the complete and exclusive agreement regarding the subject matter hereof. It supersedes any other representations, promises, or agreements, whether written or oral, including the Prior Agreement. Modifications or amendments to this Agreement, other than those changes expressly reserved to the Company’s discretion herein, must be made in a written agreement signed by you and an officer of the Company (other than you).
If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of this Agreement and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law. This letter may be delivered and executed via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and shall be deemed to have been duly and validly delivered and executed and be valid and effective for all purposes.
Please sign below and return this letter to me no later than _______, 2026 to indicate your agreement with its terms.
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| Very truly yours, |
| | | |
| | | |
| By: | | |
| [Name] | |
| [Title] | |
| Hawkeye 360, Inc. | |
I have read and accept these terms of employment.
HAWKEYE360, INC.
_______, 2026
Todd Probert
Via Email
Re: Confirmatory Offer Letter
Dear Todd,
You are currently employed by Hawkeye 360, Inc. (the “Company” or “Hawkeye”) as Chief Operating Officer. As discussed, this confirmatory offer letter (this “Agreement”) confirms the existing terms and conditions of your employment in that role and establishes your eligibility for severance benefits and is intended to replace and supersede any previously executed agreement covering the subject matter herein, including but not limited to your offer letter dated February 3, 2025 (if any, the “Prior Agreement”). This Agreement will be contingent upon the execution of the underwriting agreement between the Company and the underwriter(s) managing the initial public offering of the Company’s common stock, pursuant to which the common stock is priced for the initial public offering (the “IPO”), and will be effective upon the pricing of the IPO (the “Effective Date”).
1.Position. You will continue to serve in a full-time capacity, reporting to the Company’s Chief Executive Officer (the “CEO”). You will continue to work from your primary work location as of the date of this Agreement, with business travel as reasonably requested by the Company. The Company may change your position, duties, and work location from time to time in its discretion.
2.Cash Compensation and Benefits.
As of the Effective Date, your salary will be increased to the rate of USD $650,000 on an annualized basis (“Base Salary”), which will be paid in accordance with the Company's normal payroll procedures and subject to applicable payroll withholdings and deductions. Your Base Salary is subject to review and adjustment by the Company in its sole discretion.
As of the Effective Date, you will be eligible to earn an annual discretionary bonus (the “Annual Bonus”) with a target of fifty (50%) of your base salary (the “Target Amount”). The amount of this Annual Bonus, if any, will be determined in the sole discretion of the Board and will be based on the Board’s assessment of the achievement of management and Board-approved corporate and personal performance objectives (“MBOs”) for the applicable calendar year, as well as any other criteria the Board deems relevant. The Annual Bonus may be more or less than the Target Amount and may be zero. Except as otherwise explicitly set forth in the Severance Plan (as defined below), you must be employed by the Company on the Annual Bonus payment date in order to earn the Annual Bonus and no pro-rated amount will be paid if your employment terminates for any reason prior to such payment date.
You will also continue to be eligible to earn commissions tied to achievement of revenue goals pursuant to your applicable commission and incentive plan (the “Commission Plan”). The details of your eligibility for commissions, including but not limited to payment timing, conditions for earning commissions, and treatment of commissions upon termination of
employment may vary from year to year and will be detailed in the Commission Plan and any corresponding addendum provided by the Company.
For avoidance of doubt, the Company anticipates that as of the Effective Date your target total cash compensation, inclusive of your Base Salary, Annual Bonus, and commissions, will be $1,300,000 on an annualized basis.
As a full-time, regular employee of Hawkeye, you will remain eligible for Company benefits in accordance with the Company’s applicable benefit plans and policies for similarly-situated employees, subject to plan terms, generally-applicable Company policies, and any applicable waiting periods.
3.Equity. You have previously been granted one or more equity awards by the Company, which shall continue to be governed in all respects by the terms of the applicable equity agreements, grant notices, and equity plans, subject to terms of the Severance Plan.
4.Company Policies. You will continue to be expected to abide by Company policies and procedures, as in effect from time to time.
5.Outside Activities. You will not, while employed by the Company, undertake or engage in any other employment, occupation or business enterprise that would interfere with your responsibilities and the performance of your duties hereunder, except for (i) reasonable time devoted to volunteer services for or on behalf of such religious, educational, non-profit and/or other charitable organization as you may wish to serve, (ii) reasonable time devoted to activities in the non-profit and business communities consistent with your duties, and (iii) such other activities as may be specifically approved in writing by the Board. This restriction shall not, however, preclude you (a) from owning less than one percent (1%) of the total outstanding shares of a publicly-traded company, or (b) from employment or service in any capacity with any affiliates of the Company.
6.Confidential Information Agreement. As a condition of continued employment under the terms of this Agreement, you are required to timely execute and comply with the enclosed Employee Confidential Information and Inventions Assignment Agreement, which will supersede and replace any previously executed agreement concerning the subject matter therein (the “Confidential Information Agreement”).
7.At-Will Employment. Your employment with the Company is for no specified period and constitutes at-will employment. Accordingly, you may terminate your employment with the Company at any time simply by notifying the Company, and the Company may terminate your employment at any time for any reason, with or without advance notice.
8.Severance. As of the Effective Date, you will be eligible to participate in the Hawkeye 360, Inc. Severance Plan (the “Severance Plan”), which has been designed to enhance your severance eligibility, including severance eligiblity set forth in your Prior Agreement (if any). In order to participate in the Severance Plan, you will be required to timely execute and return to the Company this Agreement, the Confidential Information Agreement, and the enclosed Participation Agreement hereto.
9.No Prior Conflicts and Duty of Loyalty. You confirm that you are able to carry out your duties without breaching any legal restrictions imposed by a current or former employer or other third
party to whom you have contractual obligations. You also agree that, during the term of your continued employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with the performance of your duties hereunder or present a conflict of interest with the Company.
10.Arbitration. To aid the rapid and economical resolution of disputes that may arise in connection with your employment with the Company, and in exchange for the mutual promises contained in this offer letter, you and the Company agree that any and all disputes, claims, or causes of action, in law or equity, including but not limited to statutory claims, arising from or relating to the enforcement, breach, performance, or interpretation of this Agreement, your employment with the Company, or the termination of your employment, shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration conducted by JAMS, Inc. (“JAMS”) or its successor, under JAMS’ then applicable rules and procedures appropriate to the relief being sought (available upon request and also currently available at the following web address: (i) https://www.jamsadr.com/rules-employment-arbitration/) and (ii) https://www.jamsadr.com/rules-comprehensive-arbitration/) at a location closest to where you last worked for the Company or another mutually agreeable location. Notwithstanding the foregoing, if JAMS is unavailable due to location or otherwise, or if the parties mutually agree, then the arbitration shall be conducted by the American Arbitration Association (“AAA”) or its successor, under AAA’s then applicable rules and procedures appropriate to the relief being sought (available upon request and also currently available at the following web address: https://www.adr.org/sites/default/files/EmploymentRules-Web.pdf), at a location closest to where you last worked for the Company or another mutually agreeable location. You acknowledge that by agreeing to this arbitration procedure, both you and the Company waive the right to resolve any such dispute through a trial by jury or judge. The Federal Arbitration Act, 9 U.S.C. § 1 et seq., will, to the fullest extent permitted by law, govern the interpretation and enforcement of this arbitration agreement and any arbitration proceedings. This provision shall not be mandatory for any claim or cause of action to the extent applicable law prohibits subjecting such claim or cause of action to mandatory arbitration and such applicable law is not preempted by the Federal Arbitration Act or otherwise invalid (collectively, the “Excluded Claims”), such as non-individual claims that cannot be waived under applicable law, claims or causes of action alleging sexual harassment or a nonconsensual sexual act or sexual contact, or unemployment or workers’ compensation claims brought before the applicable state governmental agency. In the event you or the Company intend to bring multiple claims, including one of the Excluded Claims listed above, the Excluded Claims may be filed with a court, while any other claims will remain subject to mandatory arbitration. Nothing herein prevents you from filing and pursuing proceedings before a federal or state governmental agency, although if you choose to pursue a claim following the exhaustion of any applicable administrative remedies, that claim would be subject to this provision. In addition, with the exception of Excluded Claims arising out of 9 U.S.C. § 401 et seq., all claims, disputes, or causes of action under this section, whether by you or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class, representative, or collective proceeding, nor joined or consolidated with the claims of any other person or entity. You acknowledge that by agreeing to this arbitration procedure, both you and the Company waive all rights to have any dispute be brought, heard, administered, resolved, or arbitrated on a class, representative, or collective action basis. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any
form of representative or class proceeding. If a court finds, by means of a final decision, not subject to any further appeal or recourse, that the preceding sentences regarding class, representative, or collective claims or proceedings violate applicable law or are otherwise found unenforceable as to a particular claim or request for relief, the parties agree that any such claim(s) or request(s) for relief be severed from the arbitration and may proceed in a court of law rather than by arbitration. All other claims or requests for relief shall be arbitrated. You will have the right to be represented by legal counsel at any arbitration proceeding. Questions of whether a claim is subject to arbitration and procedural questions which grow out of the dispute and bear on the final disposition are matters for the arbitrator to decide, provided however, that if required by applicable law, a court and not the arbitrator may determine the enforceability of this paragraph with respect to Excluded Claims. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a written statement signed by the arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and conclusions on which the award is based. The arbitrator shall be authorized to award all relief that you or the Company would be entitled to seek in a court of law. You and the Company shall equally share all arbitration administrative fees, or such fees shall be paid in such other manner to the extent required by, and in accordance with, applicable law or rules to effectuate your and the Company’s agreement to arbitrate. To the extent the arbitration service does not collect or you otherwise do not pay an equal share of all arbitration administrative fees, and the Company pays your share, you acknowledge and agree that the Company shall be entitled to recover from you in a federal or state court of competent jurisdiction half of the arbitration fees invoiced to the parties (less any amounts you paid to the arbitration service). Each party is responsible for its own attorneys’ fees, except as may be expressly set forth in your Confidential Information Agreement or as otherwise provided under applicable law. Nothing in this Agreement is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction.
You acknowledge and agree that upon your execution of this Agreement, you will no longer be eligible for, nor entitled to, any compensation or benefits (including without limitation, any severance or change in control benefits) under any prior employment terms, offer letter or employment agreement you may have entered into or discussed with the Company, including but not limited to your Prior Agreement. This Agreement, together with your Confidential Information Agreement, equity agreements, the Severance Plan and other agreements referenced herein, forms the complete and exclusive agreement regarding the subject matter hereof. It supersedes any other representations, promises, or agreements, whether written or oral, including the Prior Agreement. Modifications or amendments to this Agreement, other than those changes expressly reserved to the Company’s discretion herein, must be made in a written agreement signed by you and an officer of the Company (other than you).
If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of this Agreement and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law. This letter may be delivered and executed via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and
shall be deemed to have been duly and validly delivered and executed and be valid and effective for all purposes.
Please sign below and return this letter to me no later than _______, 2026 to indicate your agreement with its terms.
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| Very truly yours, |
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| | | |
| By: | | |
| John Serafini | |
| CEO | |
| Hawkeye 360, Inc. | |
I have read and accept these terms of employment.
HAWKEYE360, INC.
_______, 2026
Craig Searle
Via Email
Re: Confirmatory Offer Letter
Dear Craig,
You are currently employed by Hawkeye 360, Inc. (the “Company” or “Hawkeye”) as Chief Financial Officer. As discussed, this confirmatory offer letter (this “Agreement”) confirms the existing terms and conditions of your employment in that role and establishes your eligibility for severance benefits and is intended to replace and supersede any previously executed agreement covering the subject matter herein, including but not limited to your Offer Letter dated October 2, 2023, as amended (the “Prior Agreement”). This Agreement will be contingent upon the execution of the underwriting agreement between the Company and the underwriter(s) managing the initial public offering of the Company’s common stock, pursuant to which the common stock is priced for the initial public offering (the “IPO”), and will be effective upon the pricing of the IPO (the “Effective Date”).
1. Position. You will continue to serve in a full-time capacity, reporting to the Company’s Chief Executive Officer (the “CEO”). You will continue to work from your primary work location as of the date of this Agreement, with business travel as reasonably requested by the Company. The Company may change your position, duties, and work location from time to time in its discretion.
2. Cash Compensation and Benefits.
As of the Effective Date, your salary will be increased to the rate of USD $400,000 on an annualized basis (“Base Salary”), which will be paid in accordance with the Company's normal payroll procedures and subject to applicable payroll withholdings and deductions. Your Base Salary is subject to review and adjustment by the Company in its sole discretion.
As of the Effective Date, you will be eligible to earn an annual discretionary bonus (the “Annual Bonus”) with a target of fifty (50%) of your base salary (the “Target Amount”). The amount of this Annual Bonus, if any, will be determined in the sole discretion of the Board and will be based on the Board’s assessment of the achievement of management and Board-approved corporate and personal performance objectives (“MBOs”) for the applicable calendar year, as well as any other criteria the Board deems relevant. The Annual Bonus may be more or less than the Target Amount and may be zero. Except as otherwise explicitly set forth in the Severance Plan (as defined below), you must be employed by the Company on the Annual Bonus payment date in order to earn the Annual Bonus and no pro-rated amount will be paid if your employment terminates for any reason prior to such payment date.
As a full-time, regular employee of Hawkeye, you will remain eligible for Company benefits in accordance with the Company’s applicable benefit plans and policies for similarly-situated employees, subject to plan terms, generally-applicable Company policies, and any applicable waiting periods.
3. Equity. You have previously been granted one or more equity awards by the Company, which shall continue to be governed in all respects by the terms of the applicable equity agreements, grant notices, and equity plans, subject to terms of the Severance Plan.
4. Company Policies. You will continue to be expected to abide by Company policies and procedures, as in effect from time to time.
5. Outside Activities. You will not, while employed by the Company, undertake or engage in any other employment, occupation or business enterprise that would interfere with your responsibilities and the performance of your duties hereunder, except for (i) reasonable time devoted to volunteer services for or on behalf of such religious, educational, non-profit and/or other charitable organization as you may wish to serve, (ii) reasonable time devoted to activities in the non-profit and business communities consistent with your duties, and (iii) such other activities as may be specifically approved in writing by the Board. This restriction shall not, however, preclude you (a) from owning less than one percent (1%) of the total outstanding shares of a publicly-traded company, or (b) from employment or service in any capacity with any affiliates of the Company.
6. Confidential Information Agreement. As a condition of receipt of the new compensation and benefits set forth in this Agreement, you are required to timely execute and comply with the enclosed Employee Confidential Information and Inventions Assignment Agreement, which will supersede and replace any previously executed agreement concerning the subject matter therein (the “Confidential Information Agreement”).
7. At-Will Employment. Your employment with the Company is for no specified period and constitutes at-will employment. Accordingly, you may terminate your employment with the Company at any time simply by notifying the Company, and the Company may terminate your employment at any time for any reason, with or without advance notice.
8. Severance. As of the Effective Date, you will be eligible to participate in the Hawkeye 360, Inc. Severance Plan (the “Severance Plan”), which has been designed to enhance your severance eligibility, including severance eligiblity set forth in your Prior Agreement (if any). In order to participate in the Severance Plan, you will be required to timely execute and return to the Company this Agreement, the Confidential Information Agreement, and the enclosed Participation Agreement hereto.
9. No Prior Conflicts and Duty of Loyalty. You confirm that you are able to carry out your duties without breaching any legal restrictions imposed by a current or former employer or other third party to whom you have contractual obligations. You also agree that, during the term of your continued employment with the Company, you will not engage in any other employment, occupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during the term of your employment, nor will you engage in any other activities that conflict with the performance of your duties hereunder or present a conflict of interest with the Company.
10. Arbitration. To aid the rapid and economical resolution of disputes that may arise in connection with your employment with the Company, and in exchange for the mutual promises contained in this offer letter, you and the Company agree that any and all disputes, claims, or causes of action, in law or equity, including but not limited to statutory claims, arising from or relating to the enforcement, breach, performance, or interpretation of this Agreement, your employment
with the Company, or the termination of your employment, shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration conducted by JAMS, Inc. (“JAMS”) or its successor, under JAMS’ then applicable rules and procedures appropriate to the relief being sought (available upon request and also currently available at the following web address: (i) https://www.jamsadr.com/rules-employment-arbitration/) and (ii) https://www.jamsadr.com/rules-comprehensive-arbitration/) at a location closest to where you last worked for the Company or another mutually agreeable location. Notwithstanding the foregoing, if JAMS is unavailable due to location or otherwise, or if the parties mutually agree, then the arbitration shall be conducted by the American Arbitration Association (“AAA”) or its successor, under AAA’s then applicable rules and procedures appropriate to the relief being sought (available upon request and also currently available at the following web address: https://www.adr.org/sites/default/files/EmploymentRules-Web.pdf), at a location closest to where you last worked for the Company or another mutually agreeable location. You acknowledge that by agreeing to this arbitration procedure, both you and the Company waive the right to resolve any such dispute through a trial by jury or judge. The Federal Arbitration Act, 9 U.S.C. § 1 et seq., will, to the fullest extent permitted by law, govern the interpretation and enforcement of this arbitration agreement and any arbitration proceedings. This provision shall not be mandatory for any claim or cause of action to the extent applicable law prohibits subjecting such claim or cause of action to mandatory arbitration and such applicable law is not preempted by the Federal Arbitration Act or otherwise invalid (collectively, the “Excluded Claims”), such as non-individual claims that cannot be waived under applicable law, claims or causes of action alleging sexual harassment or a nonconsensual sexual act or sexual contact, or unemployment or workers’ compensation claims brought before the applicable state governmental agency. In the event you or the Company intend to bring multiple claims, including one of the Excluded Claims listed above, the Excluded Claims may be filed with a court, while any other claims will remain subject to mandatory arbitration. Nothing herein prevents you from filing and pursuing proceedings before a federal or state governmental agency, although if you choose to pursue a claim following the exhaustion of any applicable administrative remedies, that claim would be subject to this provision. In addition, with the exception of Excluded Claims arising out of 9 U.S.C. § 401 et seq., all claims, disputes, or causes of action under this section, whether by you or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class, representative, or collective proceeding, nor joined or consolidated with the claims of any other person or entity. You acknowledge that by agreeing to this arbitration procedure, both you and the Company waive all rights to have any dispute be brought, heard, administered, resolved, or arbitrated on a class, representative, or collective action basis. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. If a court finds, by means of a final decision, not subject to any further appeal or recourse, that the preceding sentences regarding class, representative, or collective claims or proceedings violate applicable law or are otherwise found unenforceable as to a particular claim or request for relief, the parties agree that any such claim(s) or request(s) for relief be severed from the arbitration and may proceed in a court of law rather than by arbitration. All other claims or requests for relief shall be arbitrated. You will have the right to be represented by legal counsel at any arbitration proceeding. Questions of whether a claim is subject to arbitration and procedural questions which grow out of the dispute and bear on the final disposition are matters for the arbitrator to decide, provided however, that if required by applicable law, a court and not the arbitrator may determine the enforceability of this paragraph with respect to Excluded Claims. The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would
otherwise be permitted by law; and (b) issue a written statement signed by the arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and conclusions on which the award is based. The arbitrator shall be authorized to award all relief that you or the Company would be entitled to seek in a court of law. You and the Company shall equally share all arbitration administrative fees, or such fees shall be paid in such other manner to the extent required by, and in accordance with, applicable law or rules to effectuate your and the Company’s agreement to arbitrate. To the extent the arbitration service does not collect or you otherwise do not pay an equal share of all arbitration administrative fees, and the Company pays your share, you acknowledge and agree that the Company shall be entitled to recover from you in a federal or state court of competent jurisdiction half of the arbitration fees invoiced to the parties (less any amounts you paid to the arbitration service). Each party is responsible for its own attorneys’ fees, except as may be expressly set forth in your Confidential Information Agreement or as otherwise provided under applicable law. Nothing in this Agreement is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction.
You acknowledge and agree that upon your execution of this Agreement, you will no longer be eligible for, nor entitled to, any compensation or benefits (including without limitation, any severance or change in control benefits) under any prior employment terms, offer letter or employment agreement you may have entered into or discussed with the Company, including but not limited to your Prior Agreement. This Agreement, together with your Confidential Information Agreement, equity agreements, the Severance Plan and other agreements referenced herein, forms the complete and exclusive agreement regarding the subject matter hereof. It supersedes any other representations, promises, or agreements, whether written or oral, including the Prior Agreement. Modifications or amendments to this Agreement, other than those changes expressly reserved to the Company’s discretion herein, must be made in a written agreement signed by you and an officer of the Company (other than you).
If any provision of this Agreement is determined to be invalid or unenforceable, in whole or in part, this determination shall not affect any other provision of this Agreement and the provision in question shall be modified so as to be rendered enforceable in a manner consistent with the intent of the parties insofar as possible under applicable law. This letter may be delivered and executed via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and shall be deemed to have been duly and validly delivered and executed and be valid and effective for all purposes.
Please sign below and return this letter to me no later than _______, 2026 to indicate your agreement with its terms.
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| | Very truly yours, |
| | | |
| | | |
| | By:_____________________________ |
| | John Serafini CEO Hawkeye 360, Inc. |
| | | |
| | | |
| | | |
I have read and accept these terms of employment. | | |
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| | | |
| | | |
| ____________________________ | | _______________________ |
| Craig Searle | | | DATE |
HAWKEYE 360, INC.
SEVERANCE PLAN
AND
SUMMARY PLAN DESCRIPTION
APPROVED BY THE BOARD OF DIRECTORS: April 1, 2026
1. Introduction. The purpose of this HawkEye 360, Inc. Severance Plan (the “Plan”) is to provide specified severance benefits to eligible employees of the Company (as defined below) whose employment is terminated by the Company or a successor under certain circumstances. This Plan is an “employee welfare benefit plan,” as defined in Section 3(1) of ERISA (as defined below). This Plan shall supersede any individual agreement between the Company and any Covered Employee (as defined below) and any other plan, policy or practice, whether written or unwritten, maintained by the Company with respect to a Covered Employee, in each case to the extent that such agreement, plan, policy or practice provides for equity acceleration or severance benefits upon the Covered Employee’s separation from the Company. This document constitutes both the written instrument under which the Plan is maintained and the required summary plan description for the Plan.
2. Definitions. For purposes of the Plan, the terms below are defined as follows:
2.1. “Administrator” means the Board or Compensation Committee prior to a Change in Control (as defined below); or, after a Change in Control, one or more members of the successor Board or Compensation Committee or other persons designated by the Company’s Board or Compensation Committee prior to such Change in Control.
2.2. “Board” means the Board of Directors of the Company.
2.3. “Cause” means with respect to such Covered Employees that the Company has determined in its sole discretion that the Covered Employee has engaged in any one or more of the following: (i) the Covered Employee’s conviction or indictment of, or plea of no contest to, any felony; (ii) any material act or omission of the Covered Employee constituting dishonesty, fraud, immoral, or disreputable conduct that has caused, or is reasonably likely to cause, material harm to the Company; (iii) the Covered Employee’s material violation of Company policy that has caused, or is reasonably likely to cause, material harm to the Company; (iv) the Covered Employee’s material breach of any written agreement between the Covered Employee and the Company which, if curable, remains uncured for thirty (30) days after notice; or (v) the Covered Employee’s material breach of fiduciary duty or other statutory or common law duty owed to the Company.
2.4. “Change in Control” has the meaning ascribed to such term in the Equity Plan.
2.5. “Change in Control Period” means the period beginning three (3) months prior to and ending twelve (12) months following the effective date of a Change in Control.
2.6. “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
2.7. “Code” means the Internal Revenue Code of 1986, as amended, including any applicable regulations and guidance thereunder.
2.8. “Company” means HawkEye 360, Inc. and any successor.
2.9. “Compensation Committee” means the Compensation Committee of the Board.
2.10. “Covered Employee” means an employee of the Company who (i) is the Company’s Chief Executive Officer or has been designated by the Administrator to participate in the Plan, (ii) has timely and properly executed and delivered a Participation Agreement to the Company, and (iii) in connection with or promptly following the employee’s execution of a Participation Agreement, has executed the Company’s standard confidentiality and inventions assignment agreement, in a form presented by the Company.
2.11. “Covered Termination” means a Covered Employee’s termination of employment by the Company (or any parent or subsidiary of the Company) without Cause or as a result of a Covered Employee’s resignation for Good Reason; provided, that, in either case, such termination is not due to the Covered Employee’s death or disability.
2.12. “Effective Date” means the date of the underwriting agreement between the Company and the underwriter(s) managing the initial public offering of the Company’s common stock, pursuant to which the Company’s common stock is priced for the initial public offering.
2.13. “Equity Plan” means the Company’s 2026 Equity Incentive Plan, as amended from time to time, or any successor thereto.
2.14. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
2.15. “Good Reason” means with respect to such Covered Employee, any of the following conditions or actions taken by the Company without Cause and without such Covered Employee’s consent: (i) a material breach by the Company of an agreement between a Covered Employee and the Company; (ii) the Company materially reducing the Covered Employee’s base salary or annual cash incentive compensation opportunity, other than in connection with a comparable reduction affecting similarly situated employees; (iii) the Company significantly reducing the Covered Employee’s duties, authority or responsibilities relative to the Covered Employee’s duties, authority or responsibilities in effect immediately prior to such reduction; or (iv) the relocation of the Covered Employee’s principal place of employment by fifty (50) or more miles from the Covered Employee’s then-current principal place of employment; provided, further, that in each case above, in order for the Covered Employee’s resignation to be deemed to have been for Good Reason, the Covered Employee must first give the Company written notice of the action or omission giving rise to “Good Reason” within thirty (30) days after the first occurrence thereof; the Company must fail to reasonably cure such action or omission within thirty (30) days after receipt of such notice (the “Cure Period”); and the Covered Employee’s resignation must be effective not later than thirty (30) days after the expiration of such Cure Period.
2.16. “Participation Agreement” means an agreement between a Covered Employee and the Company in substantially the form of Appendix A attached hereto, and which may include such other terms as the Administrator deems necessary or advisable in the administration of the Plan.
2.17. “Severance Benefits” means, as the context requires, the Standard Severance Benefits and/or the CIC Severance Benefits the Covered Employee will be provided pursuant to Section 4.
2.18. “Termination Date” means the Covered Employee’s last day of employment with the Company.
3. Eligibility for Severance Benefits. An individual is eligible for Severance Benefits under the Plan, in the amounts set forth in Section 4, only if such individual is a Covered Employee on the date such individual experiences a Covered Termination.
4. Severance Benefits.
4.1. Covered Termination Outside the Change in Control Period. If, at any time outside of the Change in Control Period, a Covered Employee experiences a Covered Termination, then, subject to the Covered Employee’s compliance with Section 5 and the conditions set forth in this Plan, the Covered Employee shall receive the following Severance Benefits from the Company (the “Standard Severance Benefits”):
4.1.1. Cash Severance Benefits. The Covered Employee shall receive cash severance in an amount equal to the Covered Employee’s base salary (as in effect immediately prior to any reduction giving rise to Good Reason, if applicable) for the applicable number of months set forth in the Covered Employee’s Participation Agreement (such cash amount, the “Cash Severance,” and such number of months, the “Standard Severance Period”). The Cash Severance shall be paid, less applicable tax withholdings, in equal installments on the Company’s regular payroll schedule over the Standard Severance Period, provided, that no payment of Cash Severance shall be made prior to the first payroll date following the effective date of the Release (the “Initial Payment Date”). On the Initial Payment Date, the Company shall pay the Covered Employee in a lump sum the portion of the Cash Severance that the Covered Employee would have received on or prior to the Initial Payment Date under the original schedule but for the delay while waiting for the Initial Payment Date in compliance with Section 409A (as defined below) and the effectiveness of the Release (as defined below), with the balance of the Cash Severance being paid as originally scheduled. Notwithstanding the foregoing, the Company may, in its sole discretion, pay the Cash Severance in the form of a lump sum, which amount will be paid on the Initial Payment Date, but such lump sum payment of the Cash Severance shall be made only if the Company, in consultation with its advisors, determines that such payment will not result in adverse taxation under Section 409A.
4.1.2. Prorated Target Annual Bonus Entitlement. The Covered Employee will additionally receive a prorated portion of such Covered Employee’s target annual bonus, as established by the Board for the year in which the Covered Termination occurs. Such payment for which the Covered Employee is eligible under this Section 4.1.2 will be calculated (i) assuming all articulated performance goals for such bonus (including, but not limited to, corporate and individual performance, if applicable) for the year of the Covered Termination were achieved at 100% of target levels, (ii) by reference to the number of days that elapsed in the year of the Covered Employee’s Covered Termination between the first day of such year and the date of the Covered Termination, divided by 365, and (iii) ignoring any reduction in the Covered Employee’s base salary that would give rise to their resignation for Good Reason (such bonus, the “Prorated Target Bonus”). Such payment of the Prorated Target Bonus shall be made, less applicable tax withholdings, in equal installments on the Company’s regular payroll schedule over the Standard Severance Period, provided, that no payment of the Prorated Target Bonus shall be made prior to the Initial Payment Date. On the Initial Payment Date, the Company shall pay the Covered Employee in a lump sum the portion of the Prorated Target Bonus that the Covered Employee would have received on or prior to the Initial Payment Date under the original schedule but for the delay while waiting for the Initial Payment Date in compliance with Section 409A and the effectiveness of the Release, with the balance of the Prorated Target Bonus being paid as originally scheduled. Notwithstanding the foregoing, the Company may, in its sole discretion, pay the Prorated Target Bonus in the form of a lump sum, which amount will be paid on the Initial Payment Date, but such lump sum
payment of the Prorated Target Bonus shall be made only if the Company, in consultation with its advisors, determines that such payment will not result in adverse taxation under Section 409A.
4.1.3. COBRA Premiums. Provided that the Covered Employee is eligible for and timely makes the necessary elections for continuation coverage pursuant to COBRA the Company shall pay the applicable premiums (inclusive of premiums for the Covered Employee’s dependents) for such coverage following the date of the Covered Employee’s Covered Termination for the Standard Severance Period (such period of months, the “Standard COBRA Payment Period”) (but in no event after such time as the Covered Employee is eligible for coverage under a health, dental or vision insurance plan of a subsequent employer or as the Covered Employee and the Covered Employee’s dependents are no longer eligible for COBRA coverage). The Covered Employee shall notify the Company immediately if the Covered Employee becomes covered by a health, dental, or vision insurance plan of a subsequent employer or if the Covered Employee’s dependents are no longer eligible for COBRA coverage. Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot provide the COBRA premium benefits without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then in lieu of paying COBRA premiums on the Covered Employee’s behalf, the Company will instead pay such Covered Employee on the last day of each remaining month of the Standard COBRA Payment Period a fully taxable cash payment equal to the COBRA premium for that month, subject to applicable tax withholding (such amount, the “Special Severance Payment”), such Special Severance Payment to be made without regard to the Covered Employee’s election of COBRA coverage or payment of COBRA premiums and without regard to such Covered Employee’s continued eligibility for COBRA coverage during the Standard COBRA Payment Period. Such Special Severance Payment shall end upon expiration of the Standard COBRA Payment Period.
4.2. Covered Termination During the Change in Control Period. If, at any time during the Change in Control Period, a Covered Employee experiences a Covered Termination, then, subject to the Covered Employee’s compliance with Section 5 and the conditions set forth in this Plan, the Covered Employee shall receive the following Severance Benefits from the Company (the “CIC Severance Benefits”):
4.2.1. Cash Severance Benefits. The Covered Employee shall receive cash severance in an amount equal to the Covered Employee’s base salary (as in effect immediately prior to any reduction giving rise to Good Reason, if applicable) for the applicable number of months set forth in the Covered Employee’s Participation Agreement (such cash amount, the “CIC Cash Severance,” and such number of months, the “CIC Severance Period”). The CIC Cash Severance shall be paid, less applicable tax withholdings, in a lump sum on the later of (i) the Initial Payment Date or (ii) the first payroll date following the Change in Control.
4.2.2. Target Annual Bonus Entitlement. The Covered Employee will additionally receive a multiple of such Covered Employee’s target annual bonus, as established by the Board for the year in which the Covered Termination occurs and as set forth in the Covered Employee’s Participation Agreement (the “CIC Target Bonus”). Such payment of the CIC Target Bonus shall be made, less applicable tax withholdings, in a lump sum on the later of (i) the Initial Payment Date or (ii) the first payroll date following the Change in Control.
4.2.3. Prorated Target Bonus. The Covered Employee will additionally receive the Prorated Target Bonus. Such payment of the Prorated Target Bonus shall be made, less applicable tax withholdings, in a lump sum on the Initial Payment Date.
4.2.4. COBRA Premiums. Provided that the Covered Employee is eligible for and timely makes the necessary elections for continuation coverage pursuant to COBRA, the Company shall pay the applicable premiums (inclusive of premiums for the Covered Employee’s dependents) for such coverage following the date of the Covered Employee’s Covered Termination for up to the CIC Severance Period (such period of months, the “CIC COBRA Payment Period”) (but in no event after such time as the Covered Employee is eligible for coverage under a health, dental or vision insurance plan of a subsequent employer or as the Covered Employee and the Covered Employee’s dependents are no longer eligible for COBRA coverage). The Covered Employee shall notify the Company immediately if the Covered Employee becomes covered by a health, dental, or vision insurance plan of a subsequent employer or if the Covered Employee’s dependents are no longer eligible for COBRA coverage. Notwithstanding the foregoing, if at any time the Company determines, in its sole discretion, that it cannot provide the COBRA premium benefits without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then in lieu of paying COBRA premiums on the Covered Employee’s behalf, the Company will instead pay such Covered Employee on the last day of each remaining month of the CIC COBRA Payment Period a Special Severance Payment to be made without regard to the Covered Employee’s election of COBRA coverage or payment of COBRA premiums and without regard to such Covered Employee’s continued eligibility for COBRA coverage during the CIC COBRA Payment Period. Such Special Severance Payment shall end upon expiration of the CIC COBRA Payment Period.
4.2.5. Equity Vesting. Each of the Covered Employee’s then-outstanding equity awards that are subject solely to time-based vesting shall accelerate and become vested and exercisable, as to the applicable percentage set forth in the Covered Employee’s Participation Agreement, of the unvested shares subject to the equity award, with the exception of any award granted after the Effective Date that explicitly overrides this provision in writing. Any awards that vest upon the satisfaction of performance criteria shall be subject to the vesting and acceleration terms, if any, as set forth in the individual agreement governing such award. Subject to Section 5, the accelerated vesting described in this section shall be effective as of the Termination Date. Notwithstanding anything herein to the contrary, nothing in the Plan shall limit the Company’s ability to accelerate vesting and/or exercisability of outstanding equity awards pursuant to the terms of the applicable equity incentive plan of the Company. In order to give effect to the intent of the foregoing provision, notwithstanding anything to the contrary set forth in the applicable equity incentive plan of the Company or the applicable equity award agreements that provide that any then-unvested portion of the Covered Employee’s award will immediately expire upon such Covered Employee’s termination of service, such Covered Employee’s equity awards shall remain outstanding following such Covered Employee’s Covered Termination to give effect to such acceleration as necessary.
5. Conditions to Receipt of Severance.
5.1. Release Agreement. As a condition to receiving any Severance Benefits described in Section 4 herein, a Covered Employee must sign a separation agreement containing among other provisions, a release of all claims in favor of the Company and its subsidiaries and affiliates (the “Release”) in such form as may be provided by the Company. The Release must become effective in accordance with its terms, which must occur in no event more than sixty (60) days following the date of the applicable Covered Termination. In no event shall payment of any benefits under the Plan be made prior to a Covered Employee’s Termination Date or prior to the effective date of the Release. If the Company determines that any payments or benefits provided under the Plan constitute “deferred compensation” under Section 409A, and the Covered Employee’s Termination Date occurs at a time during the calendar year when the Release could become effective in the calendar year following the
calendar year in which the Covered Employee’s “separation from service” within the meaning of Section 409A of the Code and the final regulations and any guidance promulgated thereunder (“Section 409A”) occurs, then regardless of when the Release is returned to the Company and becomes effective, the Release will not be deemed effective any earlier than the latest permitted effective date; provided, that except to the extent that payments may be delayed in accordance with Section 8, on the first regular payroll date following the effective date of a Covered Employee’s Release, the Company shall (i) pay the Covered Employee a lump sum amount equal to the sum of the appliable Severance Benefits that the Covered Employee would otherwise have received through such payroll date but for the delay in payment related to the effectiveness of the Release and (ii) commence paying the balance, if any, of the Severance Benefits in accordance with the applicable payment schedule.
5.2. Other Requirements. A Covered Employee’s receipt of Severance Benefits pursuant to Section 4 will be subject to such Covered Employee’s continued material compliance with the terms of the Release, the Participation Agreement, the non-disparagement provisions of a separation agreement provided by the Company, and any confidential information agreement, proprietary information and inventions agreement and any other agreement between the Covered Employee and the Company. Severance Benefits under this Plan shall terminate immediately for a Covered Employee, and any previously paid Severance Benefits shall be subject to recoupment by the Company, if such Covered Employee is in material violation, at any time, of any legal or contractual obligation owed to the Company.
5.3. Section 280G. Any provision of the Plan to the contrary notwithstanding, if any payment or benefit a Covered Employee would receive from the Company and its subsidiaries or an acquiror pursuant to the Plan or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment will be equal to the Higher Amount. The “Higher Amount” will be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Covered Employee’s receipt, on an after-tax basis, of the greater economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” within the meaning of Section 280G of the Code is necessary so that the Payment equals the Higher Amount, reduction will occur in the manner that results in the greatest economic benefit for a Covered Employee and, to the extent applicable, complies with Section 409A. In no event will the Company, any subsidiary or any stockholder be liable to any Covered Employee for any amounts not paid as a result of the operation of this Section 5.3. The Company will use commercially reasonable efforts to cause the accounting, law or valuation firm engaged to make the determinations hereunder to provide its calculations, together with detailed supporting documentation, to a Covered Employee and the Company within fifteen (15) calendar days after the date on which such Covered Employee’s right to a Payment is triggered (if requested at that time by such Covered Employee or the Company) or such other time as requested by such Covered Employee or the Company.
6. Non-Duplication of Benefits. The Severance Benefits provided to a Covered Employee are intended to be and are exclusive and in lieu of any other change in control severance benefits or payments to which such Covered Employee may otherwise be eligible, either at law, tort, or contract, in equity, or under the Plan, in the event of any termination of such Covered Employee’s employment. The Covered Employee will not be eligible to receive change in control severance benefits or payments upon a
termination of employment that constitutes a Covered Termination other than those benefits expressly set forth herein and those benefits required to be provided by applicable law or as negotiated in accordance with applicable law (including any severance benefits that may be included in a severance agreement, employment agreement or similar contract between the Company or a subsidiary of the Company and the Covered Employee). Notwithstanding the foregoing, if a Covered Employee is eligible to any benefits other than the benefits under the Plan by operation of applicable law or as negotiated in accordance with applicable law, such Covered Employee’s benefits under the Plan shall be provided only to the extent more favorable than such other arrangement. The Administrator, in its sole discretion, shall have the authority to reduce or otherwise adjust a Covered Employee’s benefits under the Plan, in whole or in part, by any other severance benefits, pay and benefits in lieu of notice, or other similar benefits payable to such Covered Employee under the Plan that become payable in connection with the Covered Employee’s termination of employment pursuant to (i) any applicable legal requirement, including the Worker Adjustment and Retraining Notification Act (the “WARN Act”), or any other similar state law, or (ii) any policy or practice of the Company providing for the Covered Employee to remain on payroll for a limited period of time after being given notice of termination. The benefits provided under the Plan are intended to satisfy, in whole or in part, any and all statutory obligations of the Company that may arise out of a Covered Employee’s termination of employment, and the Administrator shall so construe and implement the terms of the Plan. In no event shall a Covered Employee receive both Standard Severance Benefits and CIC Severance Benefits hereunder.
7. Clawback; Recovery. All payments and Severance Benefits provided under the Plan will be subject to recoupment in accordance with any clawback policy that the Company is required to adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law. In addition, the Administrator may impose such other clawback, recovery or recoupment provisions as the Administrator determines necessary or appropriate, including but not limited to a reacquisition right in respect of previously acquired shares of common stock of the Company or other cash or property upon the occurrence of a termination of employment for Cause. No recovery of compensation under such a clawback policy will be an event giving rise to a right to resign for Good Reason, constructive termination, or any similar term under any plan of or agreement with the Company.
8. Section 409A. Notwithstanding anything to the contrary in the Plan, no severance payments or benefits will become payable until the Covered Employee has a “separation from service” within the meaning of Section 409A. Further, if some or all of the Covered Employee’s Severance Benefits are subject to Section 409A and such Covered Employee is a “specified employee” within the meaning of Section 409A at the time of such Covered Employee’s separation from service (other than due to death), then such Severance Benefits otherwise due to such Covered Employee on or within the six-month period following such Covered Employee’s separation from service will accrue during such six-month period and will become payable in a lump sum payment (less applicable withholding taxes) on the date six months and one day following the date of the Covered Employee’s separation from service if necessary to avoid adverse taxation under Section 409A. All subsequent payments, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit. Notwithstanding anything herein to the contrary, if the Covered Employee dies following such Covered Employee’s separation from service but prior to the six-month anniversary of such Covered Employee’s date of separation, then any payments delayed in accordance with this paragraph will be payable in a lump sum (less applicable withholding taxes) to the Covered Employee’s estate as soon as administratively practicable after the date of such Covered Employee’s death and all other benefits will be payable in accordance with the payment schedule applicable to each payment or benefit. Each payment and benefit
payable under the Plan is intended to constitute a separate payment for purposes of Section 409A. It is the intent of this Plan to comply with or be exempt from the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under the Plan comply with Section 409A, and in no event shall the Company or any of its representatives be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Covered Employee on account of non-compliance with Section 409A.
9. Withholding. The Company will withhold from any Severance Benefits all federal, state, local and other taxes required to be withheld therefrom and any other required payroll deductions.
10. Administration. The Plan will be administered and interpreted by the Administrator (in the Administrator’s sole discretion). The Administrator is the “named fiduciary” of the Plan for purposes of ERISA and will be subject to the fiduciary standards of ERISA when acting in such capacity. Any decision made or other action taken by the Administrator with respect to the Plan, and any interpretation by the Administrator of any term or condition of the Plan, or any related document, will be conclusive and binding on all persons and be given the maximum possible deference allowed by law. Any decision made or other action taken by the Administrator with respect to the Plan, and any interpretation by the Administrator of any term or condition of the Plan, or any related document that (i) does not affect the benefits payable under the Plan shall not be subject to review unless found to be arbitrary and capricious or (ii) does affect the benefits payable under the Plan shall not be subject to review unless found to be unreasonable or not to have been made in good faith.
11. Amendment or Termination. The Company, by action of the Administrator, reserves the right to amend or terminate the Plan at any time, without advance notice to any Covered Employee and without regard to the effect of the amendment or termination on any Covered Employee or on any other individual. Any amendment or termination of the Plan will be in writing. Notwithstanding the foregoing, a Covered Employee’s rights to receive payments and benefits pursuant to this Plan under an effective Participation Agreement may not be adversely affected, without the Covered Employee’s written consent, by an amendment or termination of this Plan.
12. Claims Procedure. Claims for benefits under the Plan shall be administered in accordance with Section 503 of ERISA and the Department of Labor Regulations thereunder. Any employee or other person who believes they are entitled to any payment under the Plan (a “claimant”) may submit a claim in writing to the Administrator within ninety (90) days of the earlier of (i) the date the claimant learned the amount of such claimant’s Severance Benefits under the Plan or (ii) the date the claimant learned that they will not be eligible to any benefits under the Plan. In determining claims for benefits, the Administrator or its delegate has the authority to interpret the Plan, to resolve ambiguities, to make factual determinations, and to resolve questions relating to eligibility for and amount of benefits. If the claim is denied (in full or in part), the claimant will be provided a written notice explaining the specific reasons for the denial and referring to the provisions of the Plan on which the denial is based. The notice will also describe any additional information or material that the Administrator needs to complete the review and an explanation of why such information or material is necessary and the Plan’s procedures for appealing the denial (including a statement of the applicant’s right to bring a civil action under Section 502(a) of ERISA following a denial on review of the claim, as described below). The denial notice will be provided within ninety (90) days after the claim is received. If special circumstances require an extension of time (up to 90 days), written notice of the extension will be given to the claimant (or representative) within the initial 90-day period. This notice of extension will indicate the special
circumstances requiring the extension of time and the date by which the Administrator expects to render its decision on the claim. If the extension is provided due to a claimant’s failure to provide sufficient information, the time frame for rendering the decision will be tolled from the date the notification is sent to the claimant about the failure to the date on which the claimant responds to the request for additional information. The Administrator has delegated the claims review responsibility to the Company’s Chief Financial Officer or such other individual designated by the Administrator, except in the case of a claim filed by or on behalf of the Company’s Chief Financial Officer or such other individual designated by the Administrator, in which case, the claim will be reviewed by the Company’s Chief Executive Officer.
13. Appeal Procedure. If the claimant’s claim is denied, the claimant (or such claimant’s authorized representative) may apply in writing to an appeals official appointed by the Administrator (which may be a person, committee or other entity) for a review of the decision denying the claim. Review must be requested within sixty (60) days following the date the claimant received the written notice of a claim denial or else the claimant will lose the right to such review. A request for review must set forth all the grounds on which such request is based, all facts in support of the request, and any other matters that the claimant feels are pertinent. In connection with the request for review, the claimant (or representative) has the right to review and obtain copies of all documents and other information relevant to the claim, upon request and at no charge, and to submit written comments, documents, records and other information relating to such claimant’s claim. The review shall take into account all comments, documents, records and other information submitted by the claimant (or representative) relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. The appeals official will provide written notice of its decision on review within 60 days after it receives a review request. If special circumstances require an extension of time (up to 60 days), written notice of the extension will be given to the claimant (or representative) within the initial 60-day period. This notice of extension will indicate the special circumstances requiring the extension of time and the date by which the appeals official expects to render its decision. If the extension is provided due to a claimant’s failure to provide sufficient information, the time frame for rendering the decision on review is tolled from the date the notification is sent to the claimant about the failure to the date on which the claimant responds to the request for additional information. If the claim is denied (in full or in part) upon review, the claimant will be provided a written notice explaining the specific reasons for the denial and referring to the provisions of the Plan on which the denial is based. The notice shall also include a statement that the claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents and other information relevant to the claim and a statement regarding the claimant’s right to bring an action under Section 502(a) of ERISA. The Administrator has delegated the appeals review responsibility to the Company’s Chief Financial Officer, except in the case of an appeal filed by or on behalf of the Company’s Chief Financial Officer, in which case, the appeal will be reviewed by the Company’s Chief Executive Officer.
14. Arbitration. No arbitration proceeding shall be brought to recover benefits under the Plan until the claims procedures described in Sections 12 and 13 have been exhausted and the Plan benefits requested have been denied in whole or in part. Notwithstanding any other provision of the Plan, to ensure the timely and economical resolution of disputes, all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance or interpretation of this Plan, and any related Participation Agreement, will be resolved to the fullest extent permitted by law by final, binding and confidential arbitration, by a single arbitrator, in Northern Virginia conducted by JAMS, Inc. (“JAMS”) under the then-applicable JAMS rules (currently available at the following web address: https://www.jamsadr.com/rules-employment). By agreeing to this arbitration procedure, each Covered Employee and the Company waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. Covered Employees will have the right to be represented by legal counsel at
any arbitration proceeding. In addition, all claims, disputes, or causes of action under this Section, whether by a Covered Employee or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences regarding class claims or proceedings are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration. This paragraph shall not apply to any action or claim that cannot be subject to mandatory arbitration as a matter of law or any claims alleging sexual harassment or a nonconsensual sexual action or sexual contact, to the extent such claims are not permitted by applicable law(s) to be submitted to mandatory arbitration and the applicable law(s) are not preempted by the Federal Arbitration Act or otherwise invalid (collectively, the “Excluded Claims”). The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. The arbitrator shall be authorized to award any or all remedies that a Covered Employee or the Company would be eligible to seek in a court of law. The Company shall pay all JAMS’ arbitration fees in excess of the amount of court fees that would be required of a Covered Employee if the dispute were decided in a court of law. Nothing in this paragraph is intended to prevent either a Covered Employee or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction. Any arbitration must be commenced within one year after the Covered Employee’s receipt of notification that their appeal was denied. The foregoing provisions shall apply to the extent consistent with and permitted by ERISA.
15. Source of Payments. All Severance Benefits will be paid in cash from the general funds of the Company; no separate fund will be established under the Plan; and the Plan will have no assets. No right of any person to receive any payment under the Plan will be any greater than the right of any other general unsecured creditor of the Company.
16. Inalienability. In no event may any current or former employee of the Company or any of its subsidiaries or affiliates sell, transfer, anticipate, assign or otherwise dispose of any right or interest under the Plan. At no time will any such right or interest be subject to the claims of creditors nor liable to attachment, execution or other legal process.
17. No Enlargement of Employment Rights. Neither the establishment nor maintenance of the Plan, any amendment of the Plan, nor the making of any benefit payment hereunder, will be construed to confer upon any individual any right to be continued as an employee of the Company. The Company expressly reserves the right to discharge any of its employees at any time, with or without Cause. However, as described in the Plan, a Covered Employee may be eligible to benefits under the Plan depending upon the circumstances of such Covered Employee’s termination of employment.
18. Successors. Any successor to the Company of all or substantially all of the Company’s business or assets (whether direct or indirect and whether by purchase, merger, consolidation, liquidation or otherwise) will assume the obligations under the Plan and agree expressly to perform the obligations under the Plan in the same manner and to the same extent as the Company would be required to perform such obligations in the absence of a succession. For all purposes under the Plan, the term “Company”
will include any successor to the Company’s business or assets which become bound by the terms of the Plan by operation of law, or otherwise.
19. Applicable Law. The provisions of the Plan will be construed, administered and enforced in accordance with ERISA and, to the extent applicable, the internal substantive laws of the Commonwealth of Virginia (except its conflict of laws provisions).
20. Severability. If any provision of the Plan is held invalid or unenforceable, its invalidity or unenforceability will not affect any other provision of the Plan, and the Plan will be construed and enforced as if such provision had not been included.
21. Headings. Headings in this Plan document are for purposes of reference only and will not limit or otherwise affect the meaning hereof.
22. Additional Information.
| | | | | | | | |
| Plan Name: | HawkEye 360, Inc. Severance Plan |
| | |
| Plan Sponsor: | HawkEye 360, Inc. |
| | |
| Identification
Numbers: | EIN: [__]
Plan Number: [__]1 |
| | |
| Plan Year: | Fiscal year ending December 31 |
| | |
| Plan Administrator: | HawkEye 360, Inc. |
| | Attention: Administrator of the HawkEye 360, Inc. Severance Plan |
| | |
| Agent for Service of | HawkEye 360, Inc. |
| Legal Process: | Attention: Administrator of the HawkEye 360, Inc. Severance Plan |
| | |
| | Service of process may also be made upon the Administrator. |
| | |
| Type of Plan: | Severance Plan/Employee Welfare Benefit Plan |
| | |
| Plan Costs: | The cost of the Plan is paid by the Company. |
23. Statement of ERISA Rights.
As a Covered Employee under the Plan, you have certain rights and protections under ERISA:
(a) You may examine (without charge) all Plan documents, including any amendments and copies of all documents filed with the U.S. Department of Labor. These documents are available for your review in the office of the Company’s Chief Financial Officer.
(b) You may obtain copies of all Plan documents and other Plan information upon written request to the Administrator. A reasonable charge may be made for such copies.
In addition to creating rights for Covered Employees, ERISA imposes duties upon the people who are responsible for the operation of the Plan. The people who operate the Plan (called “fiduciaries”) have a duty to do so prudently and in the interests of you and the other Covered Employees. No one,
1 To be chosen by Company based on next available number after taking into account numbers already used for existing welfare plans.
including the Company or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a benefit under the Plan or exercising your rights under ERISA. If your claim for a severance benefit is denied, in whole or in part, you have a right to know why it was denied, to obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules. The claim review procedure is explained in Sections 12 and 13, above.
Under ERISA, there are steps you can take to enforce the above rights. For instance, if you request a copy of Plan documents and do not receive them within thirty (30) days, you may file suit in a federal court. In such a case, the court may require the Administrator to provide the materials and to pay you up to $110 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Administrator. If you have a claim which is denied or ignored, in whole or in part, you may file suit in a federal court. If it should happen that you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a federal court. The court will decide who should pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees, for example, if it finds your claim is frivolous.
If you have any questions regarding the Plan, please contact the Administrator. If you have any questions about this statement or about your rights under ERISA, you may contact the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor (listed in your telephone directory) or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210. You may also obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration at 1-866-444-3272.
APPENDIX A
HAWKEYE 360, INC.
SEVERANCE PLAN
Participation Agreement
LEASE
BY AND BETWEEN
SPRINGPARK PLACE LLC
(AS LANDLORD)
AND
HAWKEYE 360, INC.
(AS TENANT)
450 & 485 Spring Park Place
Herndon, Virginia 20170
TOC
EXHIBIT A-1 -- Plan Showing the 450 Premises
EHHIBIT A-2 -- Plan Showing the 485 Premises
EXHIBIT B -- Work Agreement
EXHIBIT C -- Rules and Regulations
EXHIBIT D -- Form of Certificate
EXHIBIT E -- Rules for Contractors
EXHIBIT F -- Form of Letter of Credit
EXHIBIT G -- Parking Facilities
EXHIBIT H -- Form of SNDA
EXHIBIT I -- Premises HVAC Units
LEASE
THIS LEASE (this “Lease”) is dated as of the 12th day of June, 2023 (the “Effective Date”), by and between SPRINGPARK PLACE LLC, a Delaware limited liability company (“Landlord”), and HAWKEYE 360, INC. a Delaware corporation (“Tenant”).
ARTICLE I
DEFINITIONS
1.1 Buildings: (i) a two (2) story building containing approximately sixty-three thousand six hundred and ninety-seven (63,697) square feet of total rentable area of office space and located at 450 Springpark Place, Herndon, Virginia (the “450 Building”) and (ii) a one (1) story building containing approximately forty-two thousand six-hundred and thirty-six (42,636) square feet of total rentable area of office space and located at 485 Springpark Place, Herndon, Virginia (the “485 Building”). The 450 Building and 485 Building are collectively referred to as the “Buildings” and sometimes individually referred to each as a “Building.” As of the Effective Date, the Buildings are part of the Spring Park office complex (the “Office Park”).
1.2 Premises: Approximately 33,376 rentable square feet of space consisting of the following: (i) approximately 12,678 rentable square feet comprising a portion of the first (1st) floor of the 450 Building, shaded and outlined on Exhibit A-1 attached hereto, and known as Suite 500 (the “450 Premises”); and (ii) approximately 20,698 rentable square feet comprising a portion of the first (1st) floor of the 485 Building, shaded and outlined on Exhibit A-2 attached hereto, and known as Suites 300 and 400 (the “485 Premises”). Such measurements have been determined based upon Modified BOMA Industrial 2012 (“BOMA”). All references to the rentable area of the Premises or Building mean measurements done pursuant to BOMA. The 450 Premises and 485 Premises are collectively referred to in this Lease as the “Premises.”
1.3 Lease Term: The period commencing on the 450 Lease Commencement Date and ending on February 28, 2030 (i.e., the last day of the sixty-seventh (67th) full calendar month from the 485 Lease Commencement Date), subject to the Extension Option set forth in Article XXV hereof.
1.4 Lease Commencement Date: (i) with respect to the 450 Premises, the date (the “450 Lease Commencement Date”) which is the earlier to occur of (a) substantial completion of the Improvement Work for the 450 Premises or (b) October 1, 2023; and (ii) with respect to the 485 Premises, August 1, 2024 (the “485 Lease Commencement Date”).
1.5 Intentionally Omitted.
1.6 Lease Expiration Date: February 28, 2030 (i.e., the last day of the sixty-seventh (67th) full calendar month from the 485 Lease Commencement Date).
1.7 Lease Year: Each period of twelve (12) consecutive months commencing on the 450 Lease Commencement Date, and each successive twelve (12) month period thereafter;
provided, however, that if the 450 Lease Commencement Date is not the first day of a month, then the first Lease Year shall end on the last day of the twelfth (12) full calendar month following the 450 Lease Commencement Date.
1.8 Base Rent:
(a) The initial base rent for the 450 Premises (the “450 Premises Base Rent”) shall be Twenty-Six and 88/100 Dollars ($26.88) per square foot of rentable area of the 450 Premises; and on the first day of each Lease Year thereafter the 450 Premises Base Rent in effect for the immediately preceding Lease Year shall be increased by 2.75% of such 450 Premises Base Rent.
(b) The initial base rent for the 485 Premises (the “485 Premises Base Rent”, and together with the 450 Premises Base Rent, the “Base Rent”) shall be determined as of the 485 Lease Commencement Date which shall be the same Annual Base Rent per Square Foot rate then applicable for the 450 Premises Base Rent, and shall escalate at the same time and at the same rate as the 450 Premises Base Rent.
(c) The schedule of Base Rent is set forth below:
| | | | | | | | | | | | | | | | | | | | | | | |
| Lease Year | Annual Base Rent per Square Foot | 450 Premises | 485 Premises | Total Base Rent |
| Annual Base Rent* | Monthly Base Rent | Annual Base Rent* | Monthly Base Rent | Total Annual Base Rent* | Total Monthly Base Rent |
| 1 | $26.88 | $340,784.64 | $28,398.72 | $556,362.24 | $46,363.52 | $897,146.88 | $74,762.24 |
| 2 | $27.62 | $350,166.36 | $29,180.53 | $571,678.76 | $47,639.90 | $921,845.12 | $76,820.43 |
| 3 | $28.38 | $359,801.64 | $29,983.47 | $587,409.24 | $48,950.77 | $947,210.88 | $78,934.24 |
| 4 | $29.16 | $369,690.48 | $30,807.54 | $603,553.68 | $50,296.14 | $973,244.16 | $81,103.68 |
| 5 | $29.96 | $379,832.88 | $31,652.74 | $620,112.08 | $51,676.01 | $999,944.96 | $83,328.75 |
| 6 | $30.78 | $390,228.84 | $32,519.07 | $637,084.44 | $53,090.37 | $1,027,313.28 | $85,609.44 |
| 7 | $31.63 | $401,005.14 | $33,417.10 | $654,677.74 | $54,556.48 | $1,055,682.88 | $87,973.57 |
*Annualized and subject to the abatement set forth in Section 4.4 hereof.
§ Applicable from and after the 485 Lease Commencement Date.
1.9 Base Year: 2024.
1.10 Tenant’s Proportionate Share: 19.90% with respect to the 450 Premises; 48.55% with respect to the 485 Premises, subject to Section 5.4.
1.11 Intentionally Omitted.
1.12 Security Deposit Amount: Eight Hundred Ninety-Seven Thousand One Hundred Forty-Six and 88/100 Dollars ($ 897,146.88), subject to Section 11.4 of this Lease.
1.13 Broker(s): Cushman & Wakefield of Virginia, LLC (“Tenant’s Broker”) and Avison Young (“Landlord’s Broker”) (collectively, the “Brokers”).
1.14 Tenant Notice Address: 485 Springpark Place, Suite 400, Herndon, VA 20170, until Tenant has commenced beneficial use of the 450 Premises, and the 450 Premises after Tenant has commenced beneficial use of the 450 Premises.
1.15 Landlord Notice Address: c/o Penzance DC Real Estate Fund Properties, LLC, 1680 Wisconsin Avenue, Suite 300, Washington, DC 20007, Attention: Property Manager, with a required copy to Penzance DC Real Estate Fund Properties, LLC, 1680 Wisconsin Avenue, Suite 300, Washington, DC 20007, Attention: General Counsel.
1.16 Building Hours: 8:00 a.m. to 6:00 p.m. on Monday through Friday (excluding legal public holidays) and 9:00 a.m. to 1:00 p.m. on Saturday (excluding legal public holidays), and such other hours, if any, as Landlord from time to time determines.
1.17 Guarantor: N/A.
1.18 Landlord Payment Address: Springpark Place LLC (470), P.O. Box 821364, Philadelphia, PA 19182-1364.
ARTICLE II
PREMISES
2.1 Landlord hereby conveys, bargains, grants and leases a leasehold interest in the Premises to Tenant, and Tenant hereby leases a leasehold interest in the Premises from Landlord, for the Lease Term and upon the terms and conditions hereinafter provided. Tenant shall finish the Premises in accordance with, and subject to the provisions set forth in the Work Agreement attached hereto as Exhibit B (the “Work Agreement”). It is understood and agreed that Landlord will not make, and is under no obligation to make, any structural or other alterations, decorations, additions or improvements in or to the Premises from its “as is” condition. Tenant’s taking possession of the Premises shall be conclusive evidence that the Premises were in good order and satisfactory condition when Tenant took possession. No representation regarding the condition of the Premises, the Land (hereinafter defined) or either Building, have been made by or on behalf of Landlord or relied upon by Tenant. Notwithstanding the foregoing, if the common areas of either Building or any base Building systems or structure are in violation of any applicable Law (hereinafter defined), and such violation would have a material adverse effect on Tenant’s use of the Premises, then Landlord shall, promptly after Tenant provides to Landlord written notice of such violation, cure such violation. No easement for light and air is incorporated in the Premises. Tenant acknowledges and agrees that, prior to the execution of this Lease by Tenant, Tenant has been given the opportunity to measure the space comprising the Premises and confirm the rentable area thereof. The rentable area of the Premises set forth in Section 1.2 (as such 450 Premises and 485 Premises are depicted on Exhibit A-1 and Exhibit A-2, respectively) shall conclusively be deemed to be the rentable area of the Premises for purposes of this Lease.
2.2 Tenant will have the non-exclusive right to use the common and public areas of the 450 Building and 485 Building. The “common areas” of each Building and Land (hereinafter defined) shall mean, as applicable, any lobby area, stairs and public restrooms of such Building,
parking areas, walkways, landscaped areas, loading and service areas on the Land and other areas of such Building and Land designated by Landlord for non-exclusive and common use or benefit of occupants of the Building and others as Landlord may determine. Except as may otherwise be expressly provided in this Lease, the lease of the Premises does not include the right to use the roof, mechanical rooms, electrical closets, janitorial closets, telephone rooms, parking areas or other non-common or non-public areas of either Building.
2.3 Intentionally Omitted.
2.4 Provided Tenant has delivered to Landlord evidence reasonably satisfactory to Landlord that all insurance required to be carried by Tenant and its contractor hereunder is effective, Tenant shall have access to the 450 Premises and 485 Premises upon delivery of possession of such 450 Premises and 485 Premises, as applicable, by Landlord to Tenant; provided, however, Tenant shall not be entitled to make any alterations or improvements to the Premises until the Plans (as defined in Exhibit B) have been finally approved by Landlord in accordance with Exhibit B. Except for purposes of constructing the Improvement Work (as defined in Exhibit B) in accordance with Exhibit B, Tenant shall not be permitted to occupy the Premises for purposes of conducting its business therein or for any other purpose, unless and until Tenant delivers to Landlord a certificate of occupancy and any other approvals required for Tenant’s occupancy of the Premises from any governmental authorities having jurisdiction over the Premises, all of which shall be obtained by Tenant at Tenant’s sole cost and expense. If Tenant is not permitted to take possession of the Premises because Tenant has failed to deliver to Landlord evidence reasonably satisfactory to Landlord that all insurance required hereunder to be carried by Tenant and its contractor is effective, then (i) Landlord shall be deemed to have tendered possession of the Premises to Tenant as of the date this Lease has been fully executed and delivered, (ii) neither the 450 Lease Commencement Date nor the 485 Lease Commencement Date shall be delayed as a result thereof, and (iii) Tenant shall be entitled to access the Premises when such evidence of insurance has been delivered to Landlord.
ARTICLE III
TERM
3.1 All of the provisions of this Lease shall be in full force and effect from and after the Effective Date. The Lease Term shall commence on the 450 Lease Commencement Date and expire at midnight on the Lease Expiration Date. The Lease Term shall also include any properly exercised renewal or extension of the term of this Lease pursuant to and in accordance with Article XXV hereof.
3.2 Promptly after the 450 Lease Commencement Date and 485 Lease Commencement Date are ascertained, Tenant shall execute the certificate confirming such dates and the expiration date of this Lease (the “Lease Expiration Date”) attached to this Lease as Exhibit D (the “Certificate”) within five (5) days after Landlord prepares and provides such Certificate to Tenant. Tenant’s failure to execute the Certificate shall not affect either the 450 Lease Commencement Date, 485 Lease Commencement Date or the Lease Expiration Date, as each are determined by the terms of this Lease.
ARTICLE IV
BASE RENT
4.1 From and after the 450 Lease Commencement Date, Tenant shall pay the 450 Base Rent in equal monthly installments (the “450 Monthly Base Rent”) and from and after the 485 Lease Commencement Date, Tenant shall pay the 485 Base Rent in equal monthly installments (the “485 Monthly Base Rent,” together with the 450 Monthly Base Rent, the “Monthly Base Rent”), each in advance on the first day of each month during a Lease Year as more particularly set forth in Section 1.8.
4.2 Concurrently with Tenant’s execution of this Lease, Tenant shall pay an amount equal to the sum of (x) $32,897.19 (the “450 Advance Rent”) and (y) $47,231.46 (the “485 Advance Rent”), which 450 Advance Rent and 485 Advance Rent amounts shall be credited toward the monthly installment(s) of the Base Rent payable for the first full calendar month(s) of the 450 Monthly Base Rent and 485 Monthly Base Rent due and owing following the 450 Lease Commencement Date and 485 Lease Commencement Date, respectively, subject to the terms of Section 4.4, below. If either of the 450 Lease Commencement Date or 485 Lease Commencement Date is not the first day of a month, then from the 450 Lease Commencement Date or 485 Lease Commencement Date, as applicable, until the first day of the following month, the 450 Monthly Base Rent or 485 Monthly Base Rent, as applicable, shall be prorated on a per diem basis at the rate of one-thirtieth (1/30th) of such installment of the Monthly Base Rent payable, and Tenant shall pay such prorated installment of the Monthly Base Rent on the applicable Lease Commencement Date.
4.3 All sums payable by Tenant under this Lease, whether or not stated to be Base Rent, Additional Rent or otherwise, shall be paid to Landlord in legal tender of the United States, without setoff, deduction or demand, at the Landlord Payment Address, or to such other party or such other address as Landlord may designate in writing. Landlord’s acceptance of rent after it shall have become due and payable shall not excuse a delay upon any subsequent occasion or constitute a waiver of any of Landlord’s rights hereunder. If any sum payable by Tenant under this Lease is paid by check which is returned due to insufficient funds, stop payment order, or otherwise, then: (a) such event shall be treated as a failure to pay such sum when due; and (b) in addition to all other rights and remedies of Landlord hereunder, Landlord shall be entitled (i) to impose, as Additional Rent, a returned check charge of Fifty Dollars ($50.00) to cover Landlord’s administrative expenses and overhead for processing, and (ii) to require that all future payments be remitted by wire transfer, money order, or cashier’s or certified check.
4.4 (a) Notwithstanding anything contained in this Lease to the contrary, Tenant’s obligation to pay (i) the first seven (7) full monthly installments of the 450 Monthly Base Rent shall be abated (the “450 Rent Abatement”) and (ii) the first seven (7) full monthly installments of the 485 Monthly Base Rent shall be abated (the “485 Rent Abatement”) (the 450 Rent Abatement and 485 Rent Abatement are collectively referred to herein as the “Rent Abatement”). During such period that any portion of the Base Rent is abated, Tenant shall remain obligated to perform all of Tenant’s other obligations under this Lease. In the event Tenant shall be in default beyond the expiration of any applicable notice and cure period prior to
the application of entire amount of the Rent Abatement, Tenant shall not be entitled to any further abatement of Base Rent hereunder and the Rent Abatement provided in this Section 4.4 shall be of no force or effect and any Rent Abatement which has not previously been applied to Monthly Base Rent shall be forfeited. The foregoing provisions shall neither be deemed to be a limitation of nor an alternative to the provisions of Article XVIII of this Lease and the remedies therein provided, but shall be deemed to be an additional remedy.
(a) Provided there exists no default of Tenant beyond any applicable notice and cure period provided under this Lease, Tenant may elect by delivery of written notice to Landlord on or before the 485 Lease Commencement Date to convert any remaining 450 Rent Abatement into additional 485 Rent Abatement (on a dollar-for-dollar basis), and vice-versa.
ARTICLE V
CAM CHARGES AND REAL ESTATE TAXES
5.1 (a) Tenant’s Proportionate Share as of the Effective Date shall be as provided in Section 1.10. “Tenant’s Proportionate Share” with respect to the 450 Premises shall equal a fraction, the numerator of which is the number of square feet of rentable area in the 450 Premises, and the denominator of which is the number of square feet of office rentable area from time to time in the 450 Building (excluding storage and roof space). “Tenant’s Proportionate Share” with respect to the 485 Premises shall equal a fraction, the numerator of which is the number of square feet of rentable area in the 485 Premises, and the denominator of which is the number of square feet of office rentable area from time to time in the 485 Building (excluding storage and roof space). Tenant’s Proportionate Share with respect to the 450 Premises and the 485 Premises shall be calculated separately (but in the same manner) as provided above.
(a) For the purposes of this Article V, the term “ Building” shall be deemed to include one or both the 450 Building and 485 Building, as context may require, and the sites upon which each of the 450 Building and 485 Building are constructed ( each of which site is sometimes referred to herein as the “Land”). If the Buildings are operated as a part of a complex of buildings or in conjunction with other buildings or parcels of land, then Landlord shall allocate the common expenses and costs with respect to each such building or parcel of land in the Office Park in such manner as Landlord, in its sole but not arbitrary judgment, shall determine. If the tax lot upon which either Building is located includes other buildings, then Landlord shall allocate the real estate taxes and real estate tax related costs with respect to each such building in such manner as Landlord, in its sole but not arbitrary judgment, shall determine.
5.2 (a) From and after January 1, 2025, Tenant shall pay as Additional Rent Tenant’s Proportionate Share of the amount by which CAM Charges (as defined in Section 5.2(b)) for each calendar year falling entirely or partly within the Lease Term exceed a base amount (the “CAM Charges Base Amount”) equal to the CAM Charges incurred during the Base Year. Notwithstanding anything to the contrary herein, for purposes of calculating the amount due from Tenant under this Article, (i) the CAM Charges Base Amount shall not include market-wide cost increases due to extraordinary circumstances including, but not limited to, force majeure events or conditions, terrorist acts or acts of war, boycotts, strikes, conservation surcharges, embargoes or other shortages, or amortized costs relating to capital improvements,
and (ii) in no event shall any component of CAM Charges for any Lease Year relating to utility, services, security or insurance costs be less than such component in the CAM Charges Base Amount. Tenant’s responsibility for Tenant’s Proportionate Share of increases in CAM Charges over the CAM Charges Base Amount with respect to the 450 Premises and the 485 Premises shall be calculated separately (but in the same manner), such that (i) Tenant’s Proportionate Share of CAM Charges with respect to the 450 Premises shall be based on the amount by which the CAM Charges attributable or allocated to the 450 Building exceed the CAM Charges Base Amount attributable or allocated to the 450 Building in the Base Year; and (ii) Tenant’s Proportionate Share of CAM Charges with respect to the 485 Premises shall an amount equal to the amount by which the CAM Charges attributable or allocated to the 485 Building exceed the CAM Charges Base Amount attributable or allocated to the 485 Building in the Base Year.
(b) “CAM Charges” shall mean the sum of all expenses incurred by Landlord in the ownership, operation, maintenance, repair and cleaning of the Building (including the parking facilities serving the Building), including, but not limited to, the following: (1) electricity, gas, water, HVAC, sewer and other utility charges of every type and nature; (2) premiums and other charges for insurance and deductibles under such insurance policies; (3) management fees and personnel costs of the Building; (4) costs of service and maintenance contracts relating to the Building as a whole; (5) maintenance, repair and replacement expenses and supplies which are deducted by Landlord in computing its federal income tax liability; (6) capital expenditures made by Landlord to reduce operating expenses or to comply with legal or insurance requirements applicable to the Building which first become effective after the date hereof or to replace existing equipment or machinery used in connection with the operation or maintenance of the Building, such capital costs to be amortized over such reasonable period as Landlord shall determine in accordance with generally accepted accounting principles, together with interest at the rate paid by Landlord on any funds borrowed for such expenditures not to exceed eight percent (8%) (“Permitted Capital Expenditures”); (7) charges for janitorial, trash removal and cleaning services and supplies furnished to the Building (including, without limitation day-porter expenses for services provided to the Building, including the common areas and Premises); (8) any business, professional and occupational license tax payable by Landlord with respect to the Building; (9) reasonable reserves for replacements, repairs and contingencies; (10) costs of snow removal; (11) Landlord’s share of the operating costs of the office park of which the Building is a part, including without limitation those amounts payable by Landlord in accordance with any agreements by and among the owners of the parcels comprising such office park; and (12) any other expense incurred by Landlord in maintaining, repairing, operating or cleaning the Building. CAM Charges shall not include: (i) intentionally omitted; (ii) principal or interest payments on any Mortgages (as defined in Section 21.1); (iii) leasing commissions or legal fees with respect to the negotiation of leases; (iv) capital expenditures, except as specified above; (v) the costs of special services and utilities separately paid by particular tenants of the Building; (vi) costs which are reimbursed to Landlord by insurers or by governmental authorities in eminent domain proceedings; (vii) advertising for vacant space in the Building; (viii) the cost of tenant improvements; and (ix) costs and expenses directly and solely relating to the management, operation, cleaning, repairing and maintenance of the parking lot.
(c) If the average occupancy rate for the Building during any calendar year (including the Base Year) is less than ninety-five percent (95%), or if any tenant is separately paying for (or does not require) electricity or janitorial services furnished to its premises, then CAM Charges for such year shall be deemed to include all additional expenses, as reasonably estimated by Landlord, which would have been incurred during such year if such average occupancy rate had been ninety-five percent (95%) and if Landlord paid for electricity and janitorial services furnished to such premises.
(d) From and after January 1, 2025, Tenant shall make estimated monthly payments to Landlord on account of the amount by which CAM Charges that are expected to be incurred during each calendar year (or portion thereof) would exceed the CAM Charges Base Amount. At the beginning of the Lease Term and at the beginning of each calendar year thereafter, Landlord may submit a statement setting forth Landlord’s reasonable estimate of such excess and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of each such share (estimated on an annual basis without proration pursuant to Section 5.4). From time to time during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within approximately one hundred fifty (150) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a statement (each an “Annual Reconciliation Statement”) showing (1) Tenant’s Proportionate Share of the amount by which CAM Charges incurred during the preceding calendar year exceeded the CAM Charges Base Amount, and (2) the aggregate amount of Tenant’s estimated payments made on account of CAM Charges during such year; however, any delay in submitting, or failure to submit, such statement shall not affect Tenant’s obligations with respect to CAM Charges. If such statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next estimated payment(s) pursuant to this Section. If such statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as Additional Rent.
(e) Commencing January 1, 2024, for purposes of determining Tenant’s responsibility for its Proportionate Share of CAM Charges, Landlord shall not include in CAM Charges for any calendar year during the Term that portion of Controllable CAM Charges (hereinafter defined) for such calendar year which is in excess of the Controllable CAM Charges Cap (defined below) for such calendar year. For the calendar year beginning January 1, 2025, and for each calendar year thereafter during the Term, the “Controllable CAM Charges Cap” shall be the Controllable CAM Charges for the prior calendar year times 1.06. Notwithstanding the foregoing, Landlord may carry over any Controllable CAM Charges for any calendar year in excess of the Controllable CAM Charges Cap for such calendar year and add such excess to CAM Charges in future years of the Term until recovered, subject to the Controllable CAM Charges Cap for such future years. For purposes of this Section 5.2(e), Controllable CAM Charges (for both the subject subsequent year and the immediately-preceding year) shall be subject to adjustment pursuant to the gross-up provisions of Section 5.2(c), above. The term “Controllable CAM Charges” shall mean all CAM Charges, except (1) Real Estate Taxes, (2)
the costs of utilities, insurance, gas, repairs, maintenance and security services, (3) Permitted Capital Expenditures and costs to comply with any law, order or regulation of any governmental, quasi-governmental, public or other authority, (4) compensation of any person where the compensation of such person is established by a collective bargaining or similar agreement or where any increase in such compensation is legally mandated (e.g. an increase in the minimum hourly wage), (5) costs of providing services not previously provided in the Building (which will be subject to the Controllable CAM Charges Cap the year after inception of such services), and (6) cost of snow and ice removal.
(f) Tenant shall be entitled to the following audit right with respect to the CAM Charges. Such audit right shall be exercisable by Tenant providing Landlord with a written notice of its exercise of such audit right within ninety (90) days after Tenant’s receipt of an Annual Reconciliation Statement (the “Current Reconciliation Statement”). If, within thirty (30) days after Landlord’s receipt of Tenant’s written notice, Landlord and Tenant are unable to resolve Tenant’s objections, then not later than fifteen (15) days after the expiration of such thirty (30)- day period, Tenant shall notify Landlord that it wishes to employ an independent certified public accounting firm reasonably acceptable to Landlord to inspect and audit Landlord’s books and records relating to the Current Reconciliation Statement. If Tenant elects to employ such accounting firm as set forth above, then Tenant shall deliver to Landlord a confidentiality and nondisclosure agreement reasonably satisfactory to Landlord executed by such accounting firm, and provide Landlord not less than thirty (30) days’ notice of the date on which the accounting firm desires to examine Landlord’s books and records during regular business hours; provided, however, that such date shall be between thirty (30) and ninety (90) days after such fifteen (15)- day notice period. The firm engaged by Tenant to conduct such audit cannot be compensated on a “contingency” or “success fee” basis. Such audit shall be limited to a determination of whether Landlord calculated CAM Charges allocable to Tenant and the Current Reconciliation Statement in accordance with the terms and conditions of this Lease. All costs and expenses of any such audit shall be paid by Tenant. If, upon a final resolution of any dispute between Landlord and Tenant regarding a Current Reconciliation Statement (it being understood that the results of Tenant’s audit shall not be dispositive or binding on Landlord), it is determined that an error was made in the audited Current Reconciliation Statement and as a result of such error the amount Tenant paid to Landlord with respect to CAM Charges and/or Real Estate Taxes for the calendar year relating to the Current Reconciliation Statement under audit was in excess of the amount to which Landlord was entitled pursuant to the terms hereof, then Landlord shall pay the amount of such excess to Tenant within thirty (30) days of such final resolution and if as a result of such error the amount Tenant paid to Landlord with respect to CAM Charges and Real Estate Taxes for the calendar year relating to the Current Reconciliation Statement under audit was overstated in the Current Reconciliation Statement by more than five percent (5%), then, Landlord shall reimburse Tenant for the reasonable out-of-pocket costs and expenses incurred in connection with the audit of such Current Reconciliation Statement, but in no event more than Ten Thousand Dollars ($10,00.00), within thirty (30) days after Landlord’s receipt of a reasonably detailed invoice therefor. If, after such final resolution, Tenant owes Landlord any amount of unpaid CAM Charges and/or Real Estate Taxes, Tenant shall pay same to Landlord within thirty (30) days after such final resolution. Tenant shall promptly supply Landlord with a copy of any audit conducted by or on behalf of Tenant.
(g) Notwithstanding the foregoing, (i) Tenant will be providing all cleaning and janitorial services to each of the 450 Premises and 485 Premises at its sole cost, and (ii) Tenant will be paying separately either to the utility company or to Landlord all electricity costs related to each of the 450 Premises and 485 Premises. Accordingly, for purposes of calculating Tenant’s responsibility for its Proportionate Share of CAM Charges with respect to each the 450 Premises and 485 Premises, (i) CAM Charges for both the 450 Building and 485 Building shall not include costs for janitorial and cleaning for the leasable area of the 450 Premises or 485 Premises (but may include day porter services furnished by Landlord in accordance with subsection (b), above), but CAM Charges for each Building will include the cost of janitorial and cleaning services provided by Landlord to the common areas of such Building or otherwise allocated to such Building in accordance with the terms herein, and (ii) CAM Charges for both the 450 Building and 485 Building shall not include electricity charges, provided that CAM Charges for each Building will include the cost of electricity incurred in connection with the base Building, the parking areas and other common areas, or as otherwise allocated to such Building in accordance with the terms herein, and the cost of any other utilities provided by Landlord to the applicable 450 Building and 485 Building that are not paid directly by Tenant.
5.3 (a) From and after January 1, 2025, Tenant shall pay as Additional Rent Tenant’s Proportionate Share of the amount by which Real Estate Taxes (as defined in Section 5.3(b)) for each calendar year falling entirely or partly within the Lease Term exceed a base amount (the “Real Estate Taxes Base Amount”) equal to the Real Estate Taxes incurred during the Base Year, as finally determined. Tenant’s responsibility for Tenant’s Proportionate Share of increases in Real Estate Taxes over the Real Estate Taxes Base Amount with respect to the 450 Premises and the 485 Premises shall be calculated separately (but in the same manner), such that (i) Tenant’s Proportionate Share of Real Estate Taxes with respect to the 450 Premises shall be based on the amount by which the Real Estate Taxes attributable or allocated to the 450 Building exceed the Real Estate Taxes Base Amount attributable or allocated to the 450 Building in the Base Year; and (ii) Tenant’s Proportionate Share of Real Estate Taxes with respect to the 485 Premises shall an amount equal to the amount by which the Real Estate Taxes attributable or allocated to the 485 Building exceed the Real Estate Taxes Base Amount attributable or allocated to the 485 Building in the Base Year.
(b) “Real Estate Taxes” shall mean (1) all real estate taxes, vault and/or public space rentals, business district or arena taxes, special user fees, rates, and assessments (including general and special assessments, if any), ordinary and extraordinary, foreseen and unforeseen, which are imposed upon Landlord or assessed against the Building or the Land or Landlord’s personal property used in connection therewith, (2) any other present or future taxes or governmental charges that are imposed upon Landlord or assessed against the Building or the Land which are in the nature of or in substitution for real estate taxes, including any tax levied on or measured by the rents payable by tenants of the Building, and (3) expenses (including, without limitation, attorneys’ and consultants’ fees and court costs) incurred in reviewing, protesting or seeking a reduction of real estate taxes, whether or not such protest or reduction is ultimately successful. Subject to the foregoing, Real Estate Taxes shall not include any inheritance, estate, gift, franchise, corporation, net income or net profits tax assessed against Landlord from the operation of the Building.
(c) If during any calendar year (including the Base Year) the Building is not fully assessed for tax purposes, then Real Estate Taxes for such year shall be deemed to include all additional taxes, as reasonably estimated by Landlord, which would have been incurred during such year if the Building had been fully assessed.
(d) From and after January 1, 2025, Tenant shall make estimated monthly payments to Landlord on account of the amount by which Real Estate Taxes that are expected to be incurred during each calendar year (or portion thereof) would exceed the Real Estate Taxes Base Amount. At the beginning of the Lease Term and at the beginning of each calendar year thereafter, Landlord may submit a statement setting forth Landlord’s reasonable estimate of such amount and Tenant’s Proportionate Share thereof. Tenant shall pay to Landlord on the first day of each month following receipt of such statement, until Tenant’s receipt of the succeeding annual statement, an amount equal to one-twelfth (1/12) of such share (estimated on an annual basis without proration pursuant to Section 5.4). From time to time during any calendar year, Landlord may revise Landlord’s estimate and adjust Tenant’s monthly payments to reflect Landlord’s revised estimate. Within approximately one hundred fifty (150) days after the end of each calendar year, or as soon thereafter as is feasible, Landlord shall submit a statement showing (1) Tenant’s Proportionate Share of the amount by which Real Estate Taxes incurred during the preceding calendar year exceeded the Real Estate Taxes Base Amount, and (2) the aggregate amount of Tenant’s estimated payments made during such year; however, any delay in submitting, or failure to submit, such statement shall not affect Tenant’s obligations with respect to Real Estate Taxes. If such statement indicates that the aggregate amount of such estimated payments exceeds Tenant’s actual liability, then Landlord shall credit the net overpayment toward Tenant’s next estimated payment(s) pursuant to this Section. If such statement indicates that Tenant’s actual liability exceeds the aggregate amount of such estimated payments, then Tenant shall pay the amount of such excess as Additional Rent.
5.4 If the Lease Term commences or expires on a day other than the first day or the last day of a calendar year, respectively, then Tenant’s liabilities pursuant to this Article for such calendar year shall be apportioned by multiplying the respective amount of Tenant’s proportionate share thereof for the full calendar year by a fraction, the numerator of which is the number of days during such calendar year falling within the Lease Term, and the denominator of which is three hundred sixty-five (365).
ARTICLE VI
USE OF PREMISES
6.1 Tenant shall use and occupy the 450 Premises solely for general (non-medical and non-governmental) office purposes compatible with comparable office buildings of similar size, age, quality and utilizing similar building systems as the 450 Building in the Herndon submarket of Fairfax County, Virginia (“450 Comparable Buildings”), and for no other use or purpose. Tenant shall use and occupy the 485 Premises solely for storage, warehouse, general business and office (non-medical and non-governmental) purposes, compatible with comparable office/flex buildings of similar size, age, quality and utilizing similar building systems as the 450 Building in the Herndon submarket of Fairfax County, Virginia (“485 Comparable Buildings”)
(the 450 Comparable Buildings and 485 Comparable Buildings are collectively referred to herein as the “Comparable Buildings”), and for no other use or purpose. Tenant shall not use or occupy the Premises for any unlawful purpose, or in any manner that will violate the certificate of occupancy for either of the Premises or either of the Buildings or that will constitute waste, nuisance or unreasonable annoyance to Landlord or any other tenant or user of either Building, or in any manner that will increase the number of parking spaces required for the Buildings or their full occupancy as required by law. Tenant shall comply with all present and future laws (including, without limitation, the Americans with Disabilities Act (the “ADA”) and the regulations promulgated thereunder, as the same may be amended from time to time), ordinances (including without limitation, zoning ordinances and land use requirements), regulations, orders and recommendations (including, without limitation, those made by any public or private agency having authority over insurance rates) (collectively, “Laws”) concerning the use, occupancy and condition of the Premises and all machinery, equipment, furnishings, fixtures and improvements therein, all of which shall be complied with in a timely manner at Tenant’s sole expense. If any such Law requires an occupancy or use permit or license for the Premises or the operation of the business conducted therein, then Tenant shall obtain and keep current such permit or license at Tenant’s expense and shall promptly deliver a copy thereof to Landlord. Use of the Premises is subject to all covenants, conditions and restrictions of record. Tenant shall not use any space in either Building or the Office Park for the sale of goods to the public at large or for the sale at auction of goods or property of any kind. Tenant shall not conduct any operations, sales, promotions, advertising or special events outside the Premises.
6.2 Throughout the Lease Term, Tenant shall (a) abide by and observe the rules and regulations specified in Section 16.1 and Exhibit C; (b) maintain the Premises in a clean, orderly and sanitary condition; (c) keep any garbage, trash, rubbish or other refuse within the interior of the Premises until removed; (d) subject to the terms of this Lease to the contrary, have such garbage, trash, rubbish and refuse removed on a daily basis in tightly fastened containers to an area designated by Landlord; and (e) keep all mechanical apparatus and equipment free of vibration and noise which may be transmitted beyond the Premises. In addition to and not in limitation of the other restrictions on use of the Premises set forth in this Section 6, Tenant hereby agrees that it shall not: (x) place or maintain any furniture, fixtures, equipment, trash, refuse or other articles in any vestibule or entry of the Premises, on the sidewalks or corridors adjacent thereto or elsewhere on the exterior of the Premises, so as to obstruct any driveway, corridor, footwalk, parking area, or any other common area; (y) cause or permit objectionable odors or noise in Landlord’s sole opinion to emanate or to be dispelled from the Premises; or (z) place a load upon any floor which exceeds the floor load which the floor was designed to carry.
6.3 Tenant shall pay before delinquency any business, rent or other taxes or fees that are now or hereafter levied, assessed or imposed upon Tenant’s use or occupancy of the Premises, the conduct of Tenant’s business at the Premises, or Tenant’s equipment, fixtures, furnishings, inventory or personal property. If any such tax or fee is enacted or altered so that such tax or fee is levied against Landlord or so that Landlord is responsible for collection or payment thereof, then Tenant shall pay as Additional Rent the amount of such tax or fee.
6.4 (a) Tenant shall not cause or permit any Hazardous Materials to be generated, used, released, stored or disposed of in or about either Building, provided that Tenant may use and store reasonable quantities of standard cleaning materials as may be reasonably necessary for Tenant to conduct normal business operations in the Premises provided the same are handled, stored and disposed of in accordance with all Laws. At the expiration or earlier termination of this Lease, Tenant shall surrender the Premises to Landlord free of Hazardous Materials and in compliance with all Environmental Laws. “Hazardous Materials” means (a) asbestos and any asbestos containing material and any substance that is then defined or listed in, or otherwise classified pursuant to, any Environmental Law or any other applicable Law as a “hazardous substance,” “hazardous material,” “hazardous waste,” “infectious waste,” “toxic substance,” “toxic pollutant” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic Leaching Procedure (TCLP) toxicity, (b) any petroleum and drilling fluids, produced waters, and other wastes associated with the exploration, development or production of crude oil, natural gas, or geothermal resources, and (c) any petroleum product, polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive material (including any source, special nuclear, or by-product material), medical waste, chlorofluorocarbon, lead or lead-based product, and any other substance whose presence could be detrimental to either Building or the Land or hazardous to health or the environment. “Environmental Law” means any present and future Law and any amendments (whether common law, statute, rule, order, regulation or otherwise), permits and other requirements or guidelines of governmental authorities applicable to either Building or the Land and relating to the environment and environmental conditions or to any Hazardous Material (including, without limitation, CERCLA, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. §1801 et seq., the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq., the Clean Air Act, 33 U.S.C. §7401 et seq., the Toxic Substances Control Act, 15 U.S.C. §2601 et seq., the Safe Drinking Water Act, 42 U.S.C. §300f et seq., the Emergency Planning and Community Right-To-Know Act, 42 U.S.C. §1101 et seq., the Occupational Safety and Health Act, 29 U.S.C. §651 et seq., and any so-called “Super Fund” or “Super Lien” law, any Law requiring the filing of reports and notices relating to hazardous substances, environmental laws administered by the Environmental Protection Agency, and any similar state and local Laws, all amendments thereto and all regulations, orders, decisions, and decrees now or hereafter promulgated thereunder concerning the environment, industrial hygiene or public health or safety).
(a) Notwithstanding any termination of this Lease, Tenant shall indemnify and hold Landlord, and its employees and agents (individually, a “Landlord Indemnified Party” and collectively, the “Landlord Indemnified Parties”) harmless from and against any damage, injury, loss, liability, charge, demand or claim based on or arising out of (i) the presence or removal of, or failure to remove, Hazardous Materials generated, used, released, stored or disposed of by Tenant or any Invitee (hereinafter defined) in or about either Building, whether before or after the Effective Date or (ii) any non-compliance with Environmental Laws to the extent the same is a result of the use or occupancy of the Premises or any action or inaction of Tenant or any Invitee. In addition, Tenant shall give Landlord immediate verbal and follow-up written notice of any actual or threatened Environmental Default, which Environmental Default
Tenant shall cure in accordance with all Environmental Laws and to the satisfaction of Landlord and only after Tenant has obtained Landlord’s prior written consent, which shall not be unreasonably withheld. An “Environmental Default” means any of the following by Tenant or any Invitee: a violation of an Environmental Law; a release, spill or discharge of a Hazardous Material on or from the Premises, the Land or either Building; an environmental condition requiring responsive action; or an emergency environmental condition. Upon any Environmental Default, in addition to all other rights available to Landlord under this Lease, at law or in equity, Landlord shall have the right but not the obligation to immediately enter the Premises, to supervise and approve any actions taken by Tenant to address the Environmental Default, and, if Tenant fails to immediately address same to Landlord’s satisfaction, to perform, at Tenant’s sole cost and expense, any lawful action necessary to address same. If any lender or governmental agency shall require testing to ascertain whether an Environmental Default is pending or threatened, then Tenant shall pay the reasonable costs therefor as Additional Rent. Promptly upon request, Tenant shall execute from time to time affidavits, representations and similar documents concerning Tenant’s best knowledge and belief regarding the presence of Hazardous Materials at or in either Building, the Land or the Premises.
6.5 Landlord at its expense (subject to reimbursement pursuant to Article V to the extent permitted thereby and subject to the following provisions of this paragraph) shall take steps necessary to comply with Title III of the ADA to the extent same applies directly to the common areas of either Building as a whole; provided, however, that to the extent any non-compliance is a result of the use or occupancy of the Premises or any action or inaction of Tenant or any Invitee, or if any improvements made by Landlord to comply with the ADA benefit solely either the 450 Premises and/or 485 Premises, then such compliance shall be at Tenant’s cost and Tenant shall reimburse Landlord for such costs upon demand by Landlord therefor. Moreover, if and to the extent that because of Tenant’s construction and/or activities within either the 450 Premises and/or the 485 Premises, one or more of the ADA-based Laws require Landlord to alter and/or improve the common areas or other part of the Office Park, then Tenant shall reimburse Landlord for the cost of such alterations and improvements. Tenant at its sole cost and expense shall be solely responsible for taking any and all measures which are required to comply with the ADA concerning the Premises (including means of ingress and egress thereto) and the business conducted therein. Any Alterations made or constructed by Tenant for the purpose of complying with the ADA or which otherwise require compliance with the ADA shall be done in accordance with this Lease; provided, that Landlord’s consent to such Alterations shall not constitute either Landlord’s assumption, in whole or in part, of Tenant’s responsibility for compliance with the ADA, or representation or confirmation by Landlord that such Alterations comply with the provisions of the ADA.
6.6 Notwithstanding anything contained in this Lease to the contrary, in no event may the Premises be used for a Prohibited Use (hereinafter defined). “Prohibited Use” shall mean (i) operation of a dry-cleaning business, except for a dry-cleaning business at which no on-site cleaning operations of any sort are undertaken (i.e., a so-called drop-off station); ( ii) operation of a gasoline station or automobile service or maintenance facility; (iii) operation of a car wash; (iv) operation of any other business that, in the ordinary course of operation, would be likely to result in the release of Hazardous Materials; ( v) the sale or display of obscene or pornographic
material (but only to the extent the applicable Tenant is primarily engaged in the business of such sale or display), the conduct of obscene, nude or semi-nude live performances, or similar purposes; and (vi) the operation of a cabaret, dance hall or similar venue.
6.7 Tenant, at its expense, shall install as part of the Improvement Work fire extinguishers and other fire protection devices as may be required from time to time by any agency having jurisdiction thereof and/or the underwriters insuring the 450 Building and/or 485 Building. If any bureau, department or official of the federal, Virginia or Fairfax County government requires or recommends the installation of any changes, modifications or alterations in the sprinkler system or additional sprinkler heads or other equipment (hereinafter collectively “sprinkler changes”) for any reason, or if any such sprinkler changes become necessary to prevent the imposition of a penalty or charge against the full allowance for a sprinkler system in the fire insurance rates set by any fire insurance company, Landlord, at Tenant’s expense, shall make such changes as required. If any sprinkler changes are required by applicable authorities due to the Improvement Work or as a result of the use or occupancy of the Premises by Tenant, such changes shall be made by Tenant, at Tenant’s expense. Tenant is responsible for the maintenance (including repairs and replacements) of (i) the sprinkler system in the 485 Premises and (ii) the sprinkler fixtures within the 450 Premises. Provided that the use of the 450 Premises is general office use, then Landlord shall maintain the sprinkler system of the 450 Premises (other than the sprinkler fixtures) as part of the Building Structure and Systems and in accordance with Section 8.2, hereof.
ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 Tenant shall not assign, transfer or otherwise encumber (collectively, “assign”) this Lease or all or any of Tenant’s rights hereunder or interest herein, or sublet or permit anyone to use or occupy (collectively, “sublet”) the Premises or any part thereof, without obtaining the prior written consent of Landlord, which consent may be withheld or granted in Landlord’s sole and absolute discretion. Notwithstanding the foregoing, provided that Tenant has not defaulted hereunder and subject to Landlord’s rights pursuant to Sections 7.4 and 7.5 hereinbelow, Landlord shall not unreasonably withhold its consent to any proposed assignment of the Lease or subletting of all or any portion of the 450 Premises or 485 Premises, provided that (i) the use of the Premises pursuant to such assignment or sublease is in compliance with Article VI hereof and not a Prohibited Activity (hereinafter defined); (ii) the proposed assignee or subtenant is of a type and quality consistent and compatible with a first class office building and with the applicable Building(s) and its tenants; (iii) the proposed transferee has a net worth, credit-worthiness and overall financial ability, as evidenced by a certified (by its chief financial officer) financial statement (and such other information regarding transferee as Landlord shall reasonably request) supplied to Landlord by such proposed transferee sufficient to (A) in the event of an assignment, undertake and perform the obligations of this Lease (including liquid assets sufficient to pay all Rent hereunder for at least one (1) year from the day of such assignment), taking into consideration all relevant circumstances at the time of the assignment or (B) in the event of a subletting, undertake and perform the obligations of the sublease (including liquid assets sufficient to pay all rent due in connection with the sublease for at least one (1) year from the day
of such sublease), taking into consideration all relevant circumstances at the time of the sublease; (iv) the proposed transferee is not otherwise a tenant of either Building or any buildings owned by Landlord or its affiliates in the Office Park; (v) the proposed transferee does not have diplomatic or sovereign immunity, and is not a federal, state or local governmental agency; and (vi) in the event of an assignment, the proposed assignee agrees directly with Landlord to be bound by all of the obligations of Tenant hereunder, including, without limitation, the obligations to pay the rent and other charges provided for under this Lease and the restrictions against further assignment (without Landlord’s consent); provided, however that the initial Tenant and any guarantor shall remain fully liable as a primary obligor for the payment of all rent and other charges hereunder and for the performance of all its other obligations hereunder. A “Prohibited Activity” for purposes of this provision shall include uses which, in Landlord’s sole judgment (exercised in good faith), (a) may introduce undue amounts of public traffic in the applicable Building (in excess of average traffic which Landlord reasonably believes is generated by Tenant prior to such assignment), (b) may place a strain on the existing plumbing, electrical and mechanical systems of the applicable Building, (c) conflicts with any exclusivity or other limitation that may be imposed upon Landlord for either of the Premises or Building at that time, or (d) are otherwise prohibited by the terms of this Lease. No assignment or right of occupancy hereunder may be effectuated by operation of law or otherwise without the prior written consent of Landlord (except for an assignment to a Qualified Tenant Affiliate in accordance with Section 7.7 below). Any attempted assignment, transfer or other encumbrance of this Lease or all or any of Tenant’s rights hereunder or interest herein, and any sublet or permission to use or occupy the Premises or any part thereof not in accordance with this Article VII shall be void and of no force or effect. Any assignment or subletting, Landlord’s consent thereto, or Landlord’s collection or acceptance of rent from any assignee or subtenant shall not be construed either as waiving or releasing Tenant from any of its liabilities or obligations under this Lease as a principal and not as a guarantor or surety, or as relieving Tenant or any assignee or subtenant from the obligation of obtaining Landlord’s prior written consent to any subsequent assignment or subletting. As security for this Lease, Tenant hereby assigns to Landlord the rent due from any assignee or subtenant of Tenant. For any period during which Tenant is in default hereunder, Tenant hereby authorizes each such assignee or subtenant to pay said rent directly to Landlord upon receipt of notice from Landlord specifying same. Landlord’s collection of such rent shall not be construed as an acceptance of such assignee or subtenant as a tenant. Tenant shall not mortgage, pledge, hypothecate or encumber (collectively “mortgage”) this Lease without Landlord’s prior written consent, which consent may be granted or withheld in Landlord’s sole and absolute discretion. Tenant shall pay to Landlord an administrative fee equal to one thousand five hundred dollars ($1,500) plus all other expenses (including attorneys’ fees and accounting costs) incurred by Landlord in connection with Tenant’s request for Landlord to give its consent to any assignment, subletting, or mortgage. Tenant shall notify Landlord prior to engaging a real estate broker in connection with any proposed assignment or sublease. Any sublease, assignment or mortgage shall, at Landlord’s option, be effected on forms approved by Landlord. Tenant shall deliver to Landlord a fully-executed copy of each agreement evidencing a sublease, assignment or mortgage within ten (10) days after Tenant’s execution thereof.
7.2 If Tenant is a partnership, then any event (whether voluntary, concurrent or related) resulting in a dissolution of Tenant, any withdrawal or change (whether voluntary,
involuntary or by operation of law) of partners owning a controlling interest in Tenant (including each general partner), or any structural or other change having the effect of limiting the liability of the partners shall be deemed a voluntary assignment of this Lease subject to the provisions of this Article. If Tenant is a corporation (or a partnership with a corporate general partner), then any event (whether voluntary, concurrent or related) resulting in a dissolution, merger, consolidation or other reorganization of Tenant (or such corporate general partner), or the sale or transfer or relinquishment of the interest of shareholders who, as of the date of this Lease, own a controlling interest of the capital stock of Tenant (or such corporate general partner), shall be deemed a voluntary assignment of this Lease subject to the provisions of this Article; provided, however, that the foregoing portion of this sentence shall not apply to corporations whose stock is traded through a national or regional exchange or over-the-counter market. If Tenant is a limited liability company, then any dissolution of Tenant or a withdrawal or change, whether voluntary, involuntary or by operation of law, of members owning a controlling interest in Tenant shall be deemed a voluntary assignment of this Lease. In addition, a transfer of all or substantially all of the assets of Tenant, either by merger, consolidation, or otherwise shall be deemed to be an assignment under this Article VII.
7.3 If at any time during the Lease Term Tenant desires to assign, sublet or mortgage all or part of this Lease or the Premises, then in connection with Tenant’s request to Landlord for Landlord’s consent thereto, Tenant shall give notice to Landlord in writing (“Tenant’s Request Notice”) containing: the identity of the proposed assignee, subtenant or other party and a description of its business; the terms of the proposed assignment, subletting or other transaction; the commencement date of the proposed assignment, subletting or other transaction (the “Proposed Sublease Commencement Date”); the area proposed to be assigned, sublet or otherwise encumbered (the “Proposed Sublet Space”); the most recent financial statement or other evidence of financial responsibility of such proposed assignee, subtenant or other party; and a certification executed by Tenant and such party stating whether or not any premium or other consideration is being paid for the assignment, sublease or other transaction.
7.4 If the Proposed Sublet Space together with any other space subject to a sublease by Tenant are both (i) for all or substantially all of the remainder of the Lease Term and (ii) any such space in the aggregate is equal to or greater than, in the aggregate, twenty-five percent (25%) of the square feet of rentable area of the Premises (i.e., 8,361.25 square feet), then, in such event, Landlord shall have the right in its sole and absolute discretion to terminate this Lease with respect to the Proposed Sublet Space (and any other space subject to a sublease by Tenant) (collectively, the “Recaptured Space”) by sending Tenant written notice of such termination within thirty (30) days after Landlord’s receipt of Tenant’s Request Notice. If the Recaptured Space does not constitute the entire Premises and Landlord exercises its option to terminate this Lease with respect to the Recaptured Space, then (a) Tenant shall tender the Recaptured Space to Landlord on the Proposed Sublease Commencement Date and any other such space shall thereafter be deleted from the Premises, and (b) as to that portion of the Premises which is not part of the Recaptured Space, this Lease shall remain in full force and effect except that Base Rent and Tenant’s Proportionate Share of excess CAM Charges and Real Estate Taxes shall be reduced pro rata. The cost of any construction required to permit the operation of the Recaptured Space separate from the balance of the Premises shall be paid by Tenant to Landlord as
Additional Rent hereunder. If the Recaptured Space constitutes the entire Premises and Landlord elects to terminate this Lease, then Tenant shall tender the Recaptured Space to Landlord, and this Lease shall terminate, on the Proposed Sublease Commencement Date.
7.5 If any sublease or assignment (whether by operation of law or otherwise, including without limitation an assignment pursuant to the provisions of the Bankruptcy Code or any other Insolvency Law) provides that the subtenant or assignee thereunder is to pay any amount in excess of the rental and other charges due under this Lease, then whether such excess be in the form of an increased monthly or annual rental, a lump sum payment, payment for the sale, transfer or lease of Tenant’s fixtures, leasehold improvements, furniture and other personal property, or any other form (and if the subleased or assigned space does not constitute the entire Premises, the existence of such excess shall be determined on a pro-rata basis), Tenant shall pay to Landlord fifty percent (50%) of any Profit (as defined below) derived by Tenant from such sublease or assignment, which 50% of the Profit shall be paid by Tenant to Landlord as Additional Rent upon such terms as shall be specified by Landlord and in no event later than ten (10) days after any receipt thereof by Tenant. “Profit” means any amount paid or payable by a subtenant or assignee to Tenant as consideration for such sublease or assignment, less any reasonable out-of-pocket costs incurred by Tenant in connection therewith (including advertising costs, brokerage commissions, legal fees and the cost of improvements to the Premises made by Tenant for such assignee). If an assignment is deemed to have occurred pursuant to Section 7.2, then for purposes of this Section the rent payable by the assignee shall be deemed to be increased to the then fair market rent for the Premises as reasonably determined by Landlord. Acceptance by Landlord of any payments due under this Section shall not be deemed to constitute approval by Landlord of any sublease or assignment, nor shall such acceptance waive any rights of Landlord hereunder. Landlord shall have the right to inspect and audit Tenant’s books and records relating to any sublease or assignment and to review sublease or assignment documents and information to confirm the accuracy of any profit-sharing calculations.
7.6 All restrictions and obligations imposed pursuant to this Lease on Tenant shall be deemed to extend to any subtenant, assignee, licensee, concessionaire or other occupant or transferee, and Tenant shall cause such person to comply with such restrictions and obligations. Any assignee shall be deemed to have assumed obligations as if such assignee had originally executed this Lease and at Landlord’s request shall execute promptly a document confirming such assumption. Each sublease is subject to the condition that if the Lease Term is terminated or Landlord succeeds to Tenant’s interest in the Premises by voluntary surrender or otherwise, at Landlord’s option the subtenant shall be bound to Landlord for the balance of the term of such sublease and shall attorn to and recognize Landlord as its landlord under the then executory terms of such sublease or, at Landlord’s sole option, the subtenant shall execute a direct lease with Landlord on Landlord’s then-current standard form.
7.7 Notwithstanding anything to the contrary contained in this Article VII, Tenant may upon at least thirty (30) days prior written notice to Landlord (or immediately following the transfer if legally such transfer may not be disclosed to Landlord in advance of the transfer) (the “Affiliate Notice”), but without Landlord’s prior written consent, assign this Lease, or sublet all or a portion of the 450 Premises and/or 485 Premises to a Qualified Tenant Affiliate (as defined
below), provided, that the use of the Premises by the Qualified Tenant Affiliate (which shall be disclosed in the Affiliate Notice) complies with Article VI hereof and is not a Prohibited Activity, and no Event of Default is then occurring. The provisions of Sections 7.3, 7.4 and 7.5 above shall not be applicable in connection with an assignment of this Lease or a sublet of all or a portion of the Premises to a Qualified Tenant Affiliate. A “Qualified Tenant Affiliate” shall mean a corporation or other entity which (i) shall control, be controlled by or be under common control with Tenant or which results from a merger or consolidation with Tenant or succeeds to all or substantially all of the business and assets of Tenant, (ii) is of a type and quality consistent and compatible with a first class office building and with the applicable Building and its tenants, (iii) has a net worth, credit-worthiness and overall financial ability, as evidenced by a certified (by its chief financial officer) financial statement (and such other information regarding transferee as Landlord shall reasonably request) supplied to Landlord by such proposed transferee, sufficient to undertake and perform the obligations of this Lease, taking into consideration all relevant circumstances at the time of the assignment, (iv) is not a party by whom any suit or action could be defended on the ground of sovereign immunity, and (v) in the case of a merger, acquisition, or consolidation, has a net worth and general creditworthiness immediately after such merger, acquisition, or consolidation at least equal to the net worth and general creditworthiness of Tenant as of the Effective Date, or immediately prior to such merger, acquisition, or consolidation, whichever is greater. For purposes of the immediately preceding sentence, “control” shall be deemed to be ownership of more than fifty percent (50%) of the legal and equitable interest of the controlled corporation or other business entity or the ability to direct or manage the decisions of such entity. In the event of any assignment to a Qualified Tenant Affiliate, Tenant and any guarantor shall remain fully liable to perform the obligations of Tenant under this Lease, such obligations to be joint and several with the obligations of the Qualified Tenant Affiliate as tenant under this Lease, and Tenant (and any Guarantor) shall execute such guaranty or other agreement as Landlord shall request to confirm such liability.
ARTICLE VIII
MAINTENANCE AND REPAIRS
8.1 Tenant, at Tenant’s sole cost and expense, shall promptly make all repairs, perform all maintenance, and make all replacements in and to the Premises that are necessary or desirable to keep the Premises in first class condition and repair, in a clean, safe and tenantable condition, and otherwise in accordance with all Laws and the requirements of this Lease. Tenant shall maintain all plate glass, fixtures, furnishings and equipment located in, or exclusively serving, the Premises in clean, safe and sanitary condition, shall take good care thereof and make all required repairs and replacements thereto. Tenant shall give Landlord prompt written notice of any defects or damage to the structure of, or equipment or fixtures in or servicing either Building or any part thereof. Tenant shall suffer no waste or injury to any part of the Premises, and shall, at the expiration or earlier termination of the Lease Term, surrender the Premises in an order and condition equal to or better than their order and condition on the Effective Date, except for ordinary wear and tear. Except as otherwise provided in Article XVII, all injury, breakage and damage to the Premises and to any other part of the Building or the Land caused by any act or omission of any invitee, agent, employee, subtenant, assignee, contractor, client, family member, licensee, customer or guest of Tenant (collectively, “Invitees”) or Tenant, shall be
repaired by and at Tenant’s expense, except that Landlord shall have the right at Landlord’s option to make any such repair and to charge Tenant for all costs and expenses incurred in connection therewith. Landlord shall provide and install replacement tubes for Building standard fluorescent light fixtures (subject to reimbursement pursuant to Article V); all other bulbs and tubes for the Premises shall be provided and installed at Tenant’s expense. Tenant is solely responsible, at Tenant’s sole cost and expense, for providing regular janitorial service and cleaning services to the 450 Premises and 485 Premises; the frequency of such cleaning shall be increased upon ten (10) days’ prior written notice from Landlord if Landlord reasonably determines that the same is necessary.
8.2 Except as otherwise provided in this Lease, Landlord shall (subject to reimbursement pursuant to Article V) keep the exterior and demising walls, load bearing elements, foundations, roof and common areas that form a part of each Building, and the building standard mechanical, electrical, HVAC and plumbing systems, pipes and conduits to the extent the same are provided by Landlord in the operation of the each Building (collectively, the “Building Structure and Systems”), clean and in good operating condition and, promptly after becoming aware of any item needing repair, will make repairs thereto. Notwithstanding any of the foregoing to the contrary: (a) maintenance and repair of special tenant areas, facilities, finishes and equipment (including, but not limited to, any special fire protection equipment, telecommunications and computer equipment, kitchen/galley equipment, air-conditioning equipment serving the Premises only and all other furniture, furnishings and equipment of Tenant and all Alterations) shall be the sole responsibility of Tenant and shall be deemed not to be a part of the Building Structure and Systems; and (b) Landlord shall have no obligation to make any repairs brought about by any act or neglect of Tenant or any Invitee.
ARTICLE IX
ALTERATIONS
9.1 Tenant shall accept the Premises in their “as is” condition as of the Effective Date. The initial improvements to the Premises shall be made by Tenant in accordance with Exhibit B. Landlord is under no obligation to make any structural or other alterations, decorations, additions, improvements or other changes (collectively, “Alterations”) in or to the Premises or either Building except as otherwise expressly provided in this Lease.
9.2 Tenant shall not make or permit anyone to make any Alterations in or to the Premises or either Building, without the prior written consent of Landlord, which consent may be withheld or granted in Landlord’s sole and absolute discretion. Any Alterations made by Tenant (including the Improvement Work made by or on behalf of Tenant) shall be made: (a) in a good, workmanlike, first-class and prompt manner; (b) using new materials only; (c) by a contractor, on days, at times and under the supervision of an architect, all as approved in writing by Landlord; (d) in accordance with plans and specifications prepared by an engineer or architect reasonably acceptable to Landlord, which plans and specifications shall be approved in writing by Landlord at Landlord’s standard charge; (e) in accordance with all Laws and the requirements of any insurance company insuring either Building or any portion thereof; (f) after having obtained any required consent of the holder of any Mortgage; (g) after obtaining public liability
and worker’s compensation insurance policies approved in writing by Landlord, which policies shall cover every person who will perform any work with respect to such Alterations; (h) intentionally omitted; (i) in accordance with any and all rules and regulations set forth in the Rules for Contractors attached hereto as Exhibit E and any and all other rules and regulations applicable to Alterations as may be promulgated by Landlord from time to time; and (j) upon request, after Tenant has delivered to Landlord documentation reasonably satisfactory to Landlord evidencing Tenant’s financial ability to complete the Alteration in accordance with the provisions of this Lease. Upon substantial completion of any Alterations, Tenant shall obtain and deliver to Landlord written, unconditional waivers of mechanics’ and materialmen’s liens against the Premises and both Buildings from all contractors, subcontractors, laborers and materials suppliers for all work, labor and services performed and materials furnished in connection with such Alterations. In addition, Tenant shall include verbatim in each and every contract with any contractor who performs any work in the Premises the language set forth in Section 16 of Exhibit E. If any lien (or a petition to establish or give notice of the intent to file such lien) is filed in connection with any Alterations, such lien (or petition) shall be discharged by Tenant within ten (10) days thereafter, at Tenant’s sole cost and expense, by the payment thereof or by the filing of a bond acceptable to Landlord. If Landlord gives its consent to the making of any Alterations, such consent shall not be deemed to be an agreement or consent by Landlord to subject its interest in the Premises or either Building to any liens which may be filed in connection therewith. All Alterations (including, without limitation, those involving structural, electrical, mechanical or plumbing work, fire and life safety systems, the roof of either Building, the heating, ventilation and air conditioning system of the Premises or either Building, and the roof of either Building) shall, at Landlord’s election, be performed by Landlord’s designated contractor or subcontractor at Tenant’s expense and Landlord’s property manager or other designee shall be paid a reasonable construction management fee (not to exceed five percent (5%) of the cost of such work). If Landlord elects not to so perform such work, then Landlord’s property manager or other designee shall be paid a reasonable construction supervision fee (not to exceed five percent ( 5%) of the cost of such work). Promptly after the completion of any Alterations, Tenant at its expense shall deliver to Landlord a digital set of accurate as-built drawings showing such Alterations in place.
9.3 If any Alterations are made without the prior written consent of Landlord, Landlord shall have the right at Tenant’s expense to remove and correct such Alterations and restore the Premises and such Building to their condition immediately prior thereto, or to require Tenant to do the same. All Alterations to the Premises or either Building made by or on behalf of Tenant, and all Improvement Work, shall immediately become the property of Landlord and shall remain upon and be surrendered with the Premises as a part thereof at the expiration or earlier termination of the Lease Term; provided, however, that (a) if Tenant is not in default under this Lease, then Tenant shall have the right to remove, prior to the expiration or earlier termination of the Lease Term, all movable furniture, furnishings and equipment installed in the Premises solely at the expense of Tenant, and (b) Tenant shall remove all Alterations (including any of the Improvement Work) and other items in the Premises or either Building (including, without limitation, any wiring, cabling and conduit located in the Premises or in risers outside the Premises) which Landlord designates in writing for removal. Movable furniture, furnishings and trade fixtures shall be deemed to exclude without limitation any item the removal of which might
cause damage to the Premises or either Building or which would normally be removed from the Premises with the assistance of any tool or machinery other than a dolly. Landlord shall have the right at Tenant’s expense to repair all damage and injury to the Premises or any Building caused by such removal or to require Tenant to do the same. If Tenant’s furniture, furnishings and equipment are not removed by Tenant prior to the expiration or earlier termination of the Lease Term, the same shall at Landlord’s option become the property of Landlord and shall be surrendered with the Premises as a part thereof; provided, however, that Landlord shall have the right at Tenant’s expense to remove from the Premises such furniture, furnishings and equipment and any Alteration which Landlord designates in writing for removal or to require Tenant to do the same. If Tenant fails to return the Premises to Landlord as required by this Section, then Tenant shall pay to Landlord, as Additional Rent, all costs (including a construction management fee) incurred by Landlord in effecting such return.
ARTICLE X
SIGNS
10.1 Landlord will list Tenant’s name in each Building directory, if any, and provide Building standard signage on one suite entry door. No other sign, advertisement or notice referring to Tenant shall be inscribed, painted, affixed or otherwise displayed on any part of the exterior or interior of either Building (including windows and doors) without the prior written approval of Landlord, which may be granted or withheld in Landlord’s sole and absolute discretion. If any such item that has not been approved by Landlord is so displayed, then Landlord shall have the right to remove such item at Tenant’s expense or to require Tenant to do the same. Landlord reserves the right to install and display signs, advertisements and notices on any part of the exterior or interior of either Building; provided, however that Landlord shall only affix, install, or display signs on the interior of the Premises which pertain to the management or operation of such Building.
10.2 (a) Notwithstanding Section 10.1, Tenant, at Tenant’s sole cost, shall have the right to install a single sign on the exterior of the 450 Building facing Spring Street (the “450 Building Signage”) and a single sign on the exterior of the 485 Building facing Springpark Place (the “485 Building Signage”, and together with the 450 Building Signage, the “Building Signage”) identifying Tenant in such locations as are mutually acceptable to Landlord and Tenant, provided that (i) the Building Signage is permitted under the laws, rules and regulations of Fairfax County, Virginia, the Town of Herndon and any other governmental or quasi-governmental authorities having appropriate jurisdiction over each Building, and under any covenants affecting such Building as of the date hereof, (ii) the Building Signage conforms to all such laws, rules, regulations and covenants, and to the terms and conditions hereinafter set forth, (iii) Tenant has obtained all permits, licenses and approvals that may be required in order to install the Building Signage and (iv) the Building Signage is not backlit. The exact size and dimensions (including without limitation, the size of the lettering thereof) of the Building Signage shall be determined by Landlord in consultation with Tenant, and Landlord will not unreasonably withhold its consent to the size of such Building Signage provided that, with respect to the 450 Building Signage, the size of such 450 Building Signage does not utilize more than the 450 Premises’ pro-rata share of the allowable building signage for the 450 Building, and
with respect to the 485 Building Signage, the size of the 485 Building Signage does not utilize more than the 485 Premises’ pro-rata share of the allowable building signage for the 485 Building. The design and style of the Building Signage shall be subject to Landlord’s prior written approval, which approval shall not be unreasonably withheld, conditioned or delayed. In order to obtain Landlord’s approval, Tenant must submit to Landlord for Landlord’s approval samples of materials to be used for the Building Signage (showing, among other things, the thickness thereof), samples of any colors used for the Building Signage, shop drawings of the Building Signage and plans and specifications for the actual attachment of the Building Signage. The Building Signage shall be installed by a contractor reasonably approved by Landlord and maintained at Tenant’s sole expense by a contractor reasonably acceptable to Landlord.
(a) At the earlier of the termination of the Lease Term or at such time that Tenant assigns this Lease (other than to a Qualified Tenant Affiliate), then Tenant shall have no further rights to either Building Signage and Tenant shall, at its expense, with a contractor reasonably approved by Landlord remove the Building Signage and repair each Building affected thereby to the condition such part of such Building was in prior to the time the Building Signage was installed. Tenant’s rights under this Section 10.2 are personal to HawkEye 360, Inc. and no assignee (other than a Qualified Tenant Affiliate) or sublessee thereof shall have any signage rights hereunder. Tenant will pay for all costs associated with the Building Signage, including without limitation all design, construction, installation and permitting costs as well as all ongoing maintenance, repair and removal costs and the source of funds for the payment of the foregoing may be from the Tenant Improvement Allowance.
ARTICLE XI
SECURITY DEPOSIT
11.1 Simultaneously with Tenant’s execution of this Lease, Tenant shall deposit with Landlord the amount of the security deposit required by Section 1.12, above, (the “Security Deposit Amount”) as a security deposit which shall be security for the performance by Tenant of all of Tenant’s obligations, covenants, conditions and agreements under this Lease. Landlord shall not be required to maintain such security deposit in a separate account. Except as may be required by law, Tenant shall not be entitled to interest on the security deposit. Within approximately thirty (30) days after the later of the expiration or earlier termination of the Lease Term or Tenant’s vacating the Premises, Landlord shall return such security deposit to Tenant, less such portion thereof as Landlord shall have appropriated to satisfy any of Tenant’s obligations, or any default by Tenant, under this Lease. If there shall be any default under this Lease by Tenant, then Landlord shall have the right, but shall not be obligated, to use, apply or retain all or any portion of the security deposit for the payment of any (a) Base Rent, Additional Rent or any other sum as to which Tenant is in default, or (b) amount Landlord may spend or become obligated to spend, or for the compensation of Landlord for any losses incurred, by reason of Tenant’s default (including, but not limited to, any damage or deficiency arising in connection with the reletting of the Premises). If any portion of the security deposit is so used or applied, then within three (3) business days after Landlord gives written notice to Tenant of such use or application, Tenant shall deposit with Landlord cash in an amount sufficient to restore the security deposit to the original Security Deposit Amount, and Tenant’s failure to do so shall
constitute an Event of Default under this Lease. Neither the application of the Security Deposit as set forth above nor the restoration by Tenant of such Security Deposit shall operate to cure such default or to estop Landlord from pursuing any remedy to which Landlord would otherwise be entitled.
11.2 If Landlord transfers the security deposit to any purchaser or other transferee of Landlord’s interest in either Building, then Tenant shall look only to such purchaser or transferee for the return of the security deposit, and Landlord shall be released from all liability to Tenant for the return of such security deposit. Tenant acknowledges that the holder of any Mortgage shall not be liable for the return of any security deposit made by Tenant hereunder unless such holder actually receives such security deposit. Tenant shall not pledge, mortgage, assign or transfer the Security Deposit or any interest therein.
11.3 (a) At Tenant’s election, the Security Deposit may be in the form of an unconditional, irrevocable letter of credit (the “Letter of Credit”) in substitution for the cash Security Deposit, subject to the following terms and conditions. If Landlord elects that the Security Deposit be in the form of a Letter of Credit, such letter of credit shall (i) be in the form attached hereto as Exhibit F and otherwise in form and substance satisfactory to Landlord in its sole discretion; (ii) be at all times in the amount of the security deposit, and shall permit multiple draws; (iii) be issued by a commercial bank located in the Washington, DC metropolitan area that has a credit rating with respect to certificates of deposit, short term deposits or commercial paper of at least P-2 (or equivalent) by Moody’s Investor Service, Inc., or at least A-2 (or equivalent) by Standard & Poor’s Corporation, and otherwise acceptable to Landlord in its sole and absolute discretion reasonably acceptable to Landlord from time to time and located in the Washington, DC metropolitan area; (iv) be made payable to, and expressly transferable and assignable at no charge by Landlord or the holder of any mortgage (which transfer/assignment shall be conditioned only upon the execution of a written document in connection therewith); ( v) be payable at sight to a local branch of the issuer of a simple sight draft; ( vi) be for a term not less than one year; and (vii) contain an “evergreen” provision which provides that it is automatically renewed on an annual basis unless the issuer delivers sixty (60) days’ prior written notice of cancellation to Landlord and Tenant. Tenant shall maintain the Letter of Credit in full force and effect throughout the entire the Lease Term and until one hundred twenty (120) days after the expiration or earlier termination of the Lease Term, and shall cause the Letter of Credit to be renewed or replaced not less than sixty (60) days prior to its expiration date.
(a) Landlord shall have the right to draw upon the Letter of Credit in whole or in part and apply the proceeds thereof as may be necessary to compensate Landlord for any default under this Lease on the part of Tenant, and Tenant, within three (3) business days after Landlord delivers written demand therefor to Tenant, shall forthwith restore the Letter of Credit to its original amount; provided, however, neither the application of the Security Deposit as set forth above nor the restoration by Tenant of such Security Deposit shall operate to cure such default or to estop Landlord from pursuing any remedy to which Landlord would otherwise be entitled. Should Landlord elect to draw the full amount of the Letter of Credit upon a default by Tenant, Tenant expressly waives any right it might otherwise have to prevent Landlord from drawing on the Letter of Credit and agrees that an action for damages and not injunctive or other
equitable relief shall be Tenant’s sole remedy in the event Tenant disputes Landlord’s claim to any such amounts.
(b) Notwithstanding anything in this Lease to the contrary, any cure or grace periods set forth in this Lease shall not apply to any of the foregoing, and, specifically, if Tenant fails to provide Landlord with any renewal or replacement Letter of Credit complying with the terms of this Lease at least sixty (60) days prior to expiration of the then-current Letter of Credit, then Landlord or its assignee shall have the right to immediately draw upon the letter of credit without notice to Tenant and apply the proceeds to the security deposit. In addition, if the issuer’s credit rating is reduced below P-2 (or equivalent) by Moody’s Investors Service, Inc. or below A-2 (or equivalent) by Standard & Poor’s Corporation, or if the financial condition of such issuer changes in any other materially adverse way, then Landlord or its assignee shall have the right to require that Tenant obtain from a different issuer a substitute letter of credit that complies in all respects with the requirements of this Section, and Tenant’s failure to obtain such substitute letter of credit within ten (10) days following Landlord’s or its assignee’s written demand therefor (with no other notice or cure or grace period being applicable thereto, notwithstanding anything in this Lease to the contrary) shall entitle Landlord or its assignee to immediately draw upon the then existing Letter of Credit in whole or in part, without notice to Tenant. Landlord or its assignee shall also be entitled to immediately draw upon the then existing Letter of Credit in whole or in part, without notice to Tenant, if Landlord or such assignee is precluded by applicable Law from giving any default or other notice to Tenant. In the event the issuer of any Letter of Credit held by Landlord or its assignee is placed into receivership or conservatorship by the Federal Deposit Insurance Corporation or any successor or similar entity, then, effective as of the date such receivership or conservatorship occurs, said Letter of Credit shall be deemed to not meet the requirements of this Section, and, within ten (10) days thereof, Tenant shall replace such Letter of Credit with other collateral acceptable to Landlord and/or the holder of any mortgage in its sole and absolute discretion (and Tenant’s failure to do so shall, notwithstanding anything in this Lease to the contrary, constitute an Event of Default for which there shall be no notice or grace or cure periods being applicable thereto other than the aforesaid ten (10) day period). Any failure or refusal of the issuer to honor the letter of credit shall be at Tenant’s sole risk and shall not relieve Tenant of its obligations hereunder with respect to the security deposit.
11.4 If as of the Reduction Date (defined below), Tenant is not in default (beyond any applicable cure period expressly set forth herein) and no event exists which event with notice and/or the passage of time would constitute a default hereunder if not cured within the applicable cure period, then the Security Deposit Amount then required hereunder to be maintained with Landlord shall be reduced to $74,762.24. If the security deposit is in the form of cash, the foregoing reduction shall be effectuated by Landlord applying to the monthly installments of Base Rent coming due after the Reduction Date the amount by which the security deposit is reduced pursuant to the foregoing provisions. If the security deposit is in the form of a Letter of Credit, then the foregoing reduction shall be effectuated by Tenant replacing the Letter of Credit then being held by Landlord with a new Letter of Credit (complying with the terms of this Lease) delivered to Landlord in the amount of the Letter of Credit then held by Landlord less the amount by which the security deposit is reduced pursuant to the foregoing provisions (or amending the
then existing Letter of Credit to the amount then required to be maintained with Landlord pursuant to the foregoing provisions). As used herein, the “Reduction Date” shall be the date on which Tenant has provided evidence to Landlord’s reasonable satisfaction, as evidenced in writing from Landlord to Tenant, that Tenant has completed a capital raise in an amount equal to or greater than Forty Million and 00/100 Dollars ($40,000,000.00).
ARTICLE XII
INSPECTION
12.1 At all times Tenant shall permit Landlord, its agents and representatives, and the holder of any Mortgage, to enter the Premises without charge therefor and without diminution of the rent payable by Tenant in order to examine, inspect or protect the 450 Premises and 485 Premises and the 450 Building and 485 Building, to make such alterations and/or repairs as in the sole and absolute judgment of Landlord may be deemed necessary or desirable, or to exhibit the same to brokers, prospective tenants, lenders, purchasers and others. Except in the event of an emergency, Landlord shall endeavor to minimize disruption to Tenant’s normal business operations in the Premises in connection with any such entry.
ARTICLE XIII
INSURANCE
13.1 Tenant shall not conduct or permit to be conducted any activity, or place or permit to be placed any equipment or other item in or about the 450 Premises or 485 Premises or the 450 Building or 485 Building, which will in any way increase the rate of fire insurance or other insurance on either Building. If any increase in the rate of fire insurance or other insurance is due to any activity, equipment or other item of Tenant, then (whether or not Landlord has consented to such activity, equipment or other item) Tenant shall pay as Additional Rent due hereunder the amount of such increase. The statement of any applicable insurance company or insurance rating organization (or other organization exercising similar functions in connection with the prevention of fire or the correction of hazardous conditions) that an increase is due to any such activity, equipment or other item shall be conclusive evidence thereof.
13.2 (a) Throughout the Lease Term, Tenant shall obtain and maintain (1) commercial general liability insurance (written on an occurrence basis) including contractual liability coverage insuring the obligations assumed by Tenant under this Lease (including those set forth in Sections 6.4 and 15.2), premises and operations coverage, products liability coverage, broad form property damage coverage and independent contractors coverage, and containing an endorsement for personal injury, (2) business interruption insurance, (3) all-risk property insurance, (4) comprehensive automobile liability insurance (covering automobiles owned by Tenant, if any), (5) worker’s compensation insurance, (6) employer’s liability insurance, and (7) signage insurance. Such commercial general liability insurance shall be in minimum amounts typically carried by prudent tenants engaged in similar operations, but in no event shall be in an amount less than Two Million Dollars ($2,000,000) combined single limit per occurrence with a Four Million Dollar ($4,000,000) annual aggregate. Such business interruption insurance shall be in minimum amounts typically carried by prudent tenants engaged in similar operations, but in no event shall be in an amount less than the Base Rent then in effect during any Lease Year.
Such property insurance shall be in an amount not less than that required to replace all of the original tenant improvements installed in the Premises pursuant to Exhibit B, all Alterations and all other contents of the Premises (including, without limitation, Tenant’s trade fixtures, decorations, furnishings, equipment and personal property). Such automobile liability insurance shall be in an amount not less than One Million Dollars ($1,000,000) for each accident. Such worker’s compensation insurance shall carry minimum limits as defined by the law of the jurisdiction in which each Building is located (as the same may be amended from time to time). Such employer’s liability insurance shall be in an amount not less than One Million Dollars ($1,000,000) for each accident, One Million Dollars ($1,000,000) disease-policy limit, and One Million Dollars ($1,000,000) disease-each employee. Such signage insurance shall insure the full cost of repairing and/or restoring all of Tenant’s exterior signs at the Premises.
(a) All such insurance shall: (1) be issued by a company that is licensed to do business in the jurisdiction in which the Buildings are located, that has been approved in advance by Landlord and that has a rating equal to or exceeding A:XI from Best’s Insurance Guide; (2) name Landlord, the managing agent of each Building and the holder of any Mortgage as additional insureds and/or loss payees (as applicable); (3) contain an endorsement that such policy shall remain in full force and effect notwithstanding that the insured may have waived its right of action against any party prior to the occurrence of a loss (Tenant hereby waiving its right of action and recovery against and releasing Landlord and its employees and agents from any and all liabilities, claims and losses for which they may otherwise be liable to the extent Tenant is covered by insurance carried or required to be carried under this Lease); (4) provide that the insurer thereunder waives all right of recovery by way of subrogation against Landlord, its partners, agents, employees, and representatives, in connection with any loss or damage covered by such policy; (5) be acceptable in form and content to Landlord; (6) be primary and non-contributory; (7) contain an endorsement for cross liability and severability of interests; and (8) contain an endorsement prohibiting cancellation, failure to renew, reduction of amount of insurance or change in coverage without the insurer first giving Landlord thirty (30) days’ prior written notice (by certified or registered mail, return receipt requested) of such proposed action. No such policy shall contain any deductible provision or retention amount except as otherwise approved in writing by Landlord, which approval shall not be unreasonably withheld. Landlord reserves the right from time to time to require Tenant to obtain higher minimum amounts or different types of insurance if it becomes customary for other landlords of Comparable Buildings to require tenants of a similar size, industry and/or use to carry insurance of such higher minimum amounts or of such different types of insurance. Tenant shall deliver a certificate (on Acord Form 27) of all such insurance and receipts evidencing payment therefor (and, upon request, copies of all required insurance policies, including endorsements and declarations) to Landlord concurrently with Tenant’s execution of this Lease and at least annually thereafter. Tenant shall give Landlord immediate notice in case of fire, theft or accident in the Premises, and in the case of fire, theft or accident in either Building if involving Tenant, its agents, employees or Invitees. Neither the issuance of any insurance policy required under this Lease nor the minimum limits specified herein shall be deemed to limit or restrict in any way Tenant’s liability arising under or out of this Lease.
13.3 Landlord agrees to carry and maintain all-risk property insurance (with replacement cost coverage) covering the 450 Building and 485 Building and Landlord’s property therein in an amount required by its insurance company to avoid the application of any coinsurance provision. Landlord hereby waives its right of recovery against Tenant and releases Tenant from any and all liabilities, claims and losses for which Tenant may otherwise be liable to the extent Landlord is covered by property insurance therefor. Landlord shall use reasonable efforts to secure a waiver of subrogation endorsement from its insurance carrier. Landlord also agrees to carry and maintain commercial general liability insurance in limits it reasonably deems appropriate (but in no event less than the limits required of Tenant pursuant to Section 13.2).
ARTICLE XIV
SERVICES AND UTILITIES
14.1 Subject to Tenant’s obligations specified in this Lease, Landlord will provide janitorial service to the common areas of each Building on Monday through Friday (or, at Landlord’s option, Sunday through Thursday) only (excluding legal public holidays), electricity to the common areas of each Building sufficient for lighting purposes and normal office use only, water for lavatory and drinking purposes, and exterior window-cleaning service. Landlord shall not be liable for any failure to maintain comfortable atmosphere conditions in all or any portion of the Premises due to excessive heat generated by any equipment or machinery installed by Tenant (with or without Landlord’s consent), due to any impact that Tenant’s furniture, equipment, machinery, millwork or layout of the Premises may have upon the delivery of HVAC to the Premises or due to the occupancy load. If Tenant requires air-conditioning or heat beyond the Building Hours, then Landlord will furnish the same, provided Tenant gives Landlord sufficient advance notice of such requirement. Tenant shall pay for such extra service in accordance with Landlord’s then-current schedule, which shall reflect Landlord’s cost of providing such service, including labor, cost of electricity and wear and tear on equipment. If the same after-hours service is also requested by other tenants on the same floor as Tenant, the charge therefor to each tenant requesting such after-hours service shall be a pro-rated amount based upon the square footage of the leased premises of all tenants on the same floor requesting such after-hours services. Notwithstanding anything above to the contrary, Tenant shall have access to each of the 450 Premises and 485 Premises twenty-four (24) hours per day each day of the year (except in the event of an emergency).
14.2 Tenant will pay for 100% of the cost of the electricity usage attributable to the 450 Premises and the 485 Premises and Tenant shall contract directly with the appropriate utility companies to provide services (i.e., electricity, internet, etc.) to the Premises. Tenant shall install, if required, in the 450 Premises and 485 Premises (at Tenant’s cost as part of the Improvement Work, in locations in the 450 Premises and 485 Premises approved by Landlord) meter(s) or submeter(s) to measure Tenant’s utility consumption for each of the 450 Premises and 485 Premises, respectively, and Tenant shall maintain in good order and repair (and replace, if necessary) such meters or submeters (which work shall be performed in accordance with Article IX hereof). If separate meters are installed for measuring Tenant’s use of any utilities, then charges for such utilities shall be paid directly by Tenant to the appropriate utility company as and when due. If submeters are installed for measuring Tenant’s consumption of any utilities,
Tenant shall pay the costs of the same to Landlord as Additional Rent, within fifteen (15) days of its receipt of a bill therefor based on such submeter readings.
14.3 Tenant shall reimburse Landlord for the cost of any excess water, sewer and chiller usage in the Premises. Excess usage shall mean the excess of the estimated usage in the 450 Premises or 485 Premises, as applicable, (per square foot of rentable area) during any billing period over the average usage (per square foot of rentable area) during the same period for the entire 450 Building or 485 Building, as applicable, as reasonably calculated by Landlord.
14.4 Landlord reserves the right to curtail or suspend any utility, service or any Building system when necessary or desirable in the reasonable judgment of Landlord, by reason of accident, emergency, repairs, alterations, replacements or improvements or any other reason whatsoever, until such cause has been removed or remedied. In the event of Landlord’s failure or inability to furnish any of the utilities or services required to be furnished by Landlord hereunder, Landlord shall not have any liability to Tenant and Tenant shall not be entitled to a rent abatement; provided, however, that Landlord shall use good faith efforts to restore such failure or inability so long as such failure or inability is within Landlord’s reasonable control.
14.5 During the Term, Tenant shall install, at Tenant’s sole cost, its own separate access system for the Premises, provided that (1) such system does not affect any Building structure or Building systems and does not require any changes thereto, (2) Tenant delivers to Landlord, at Tenant’s cost, a reasonable number of keys or access cards/fobs for system sufficient to enter all areas of the Premises, and (3) Landlord approves the detailed plans and specifications for such system. The separate security system installed by Tenant shall be located only in the Premises and shall not provide security or access control to the Building or to any other space within the Building. Tenant’s separate security system shall be maintained by Tenant during the Term and removed (at the end of the Term) by Tenant at Tenant’s sole cost and expense.
14.6 Tenant, at Tenant’s expense shall make its own arrangements for telephone service to the Premises as may be desired by Tenant. Tenant shall pay all charges, including, but not limited to, the cost of installation of necessary wiring, made by the company providing telephone service in connection with or relating to the providing of telephone service to the Premises.
14.7 Landlord may establish from time- to-time a common trash removal program for either Building (a “Common Trash Removal Program”). At such time times that a Common Trash Removal Program shall be in effect, Tenant shall join such program and pay its pro rata share of charges therefor in addition to any payments made on account of CAM Charges. In addition, if at any time that a Common Trash Removal Program is in effect, Landlord determines that Tenant’s use of the existing trash removal system (including the use of dumpsters) is excessive, then Tenant shall (a) pay to Landlord as Additional Rent all costs incurred with respect to such excess use (as such excess use is defined in Section 14.2, above), and (b) at Landlord’s request, provide an appropriate number of dumpsters to satisfy Tenant’s trash removal needs and pay all costs incurred with respect to such trash removal. At any time that a Common Trash Removal in not in effect, Tenant shall arrange for regular, prompt, and reliable
trash removal for all trash generated at or associated with the Premises, at Tenant’s sole expense, using containers and dumpsters approved by Landlord and at such times, in such manner, and in such locations, as Landlord may reasonably direct. Landlord shall provide Tenant with no less than thirty (30) days prior written notice prior to establishing or terminating a Common Trash Removal Program. Landlord intends to have a Common Trash Removal Program in effect as of the 450 Lease Commencement Date.
14.8 The Office Park is currently served by the following amenities which are intended to be for use of the tenants in the Office Park (“Office Park Amenities”): (a) a fitness center with locker rooms and showers, (b) a tenant lounge, (c) a conference facility and (d) a bike locker. Landlord shall permit Tenant and its employees employed at the Premises to the use the Office Park Amenities, subject to such rules and regulations as Landlord may promulgate from time to time with respect to the use of the Office Park Amenities. Tenant and Tenant’s employees using the fitness facility shall provide any certificates of waiver and/or indemnities, as Landlord may request from time to time, in connection with such use of the fitness facility. Tenant acknowledges and agrees that Landlord may temporarily restrict access to any of the Office Park Amenities in connection with any emergency or in connection with any service, maintenance and/or repairs to be undertaken by Landlord with respect to any such Office Park Amenities. Tenant shall have no obligation to pay Landlord any fee for Tenant’s regular use of the Office Park Amenities, however, the cost of operating and maintaining the Office Park Amenities shall be included in CAM Charges. Notwithstanding the foregoing or anything in this Lease to the contrary, Landlord shall have no obligation to provide any Office Park Amenities and shall have the right at any time, in its sole and absolute discretion, to relocate any of the Office Park Amenities, or to make modifications to any of the Office Park Amenities or to remove any of the Office Park Amenities.
14.9 As of the Effective Date, there exist certain HVAC units that serve each of the 450 Premises and 485 Premises identified on Exhibit I, attached hereto (the “Existing HVAC Units”). Tenant is responsible, at its sole cost, for the routine maintenance and repairs of the Existing HVAC Units in accordance with the terms herein. In the event that any of the Existing HVAC Units reach the end of their useful life and must be replaced during the Lease Term as reasonably determined by Landlord, then Landlord agrees to use reasonable efforts to promptly replace such Existing HVAC Unit(s) at Landlord’s sole cost; provided, however, if any such replacements or other capital improvements are required as a result of Tenant’s negligence or intentional misconduct or failure to maintain the service contract as required below, Tenant shall reimburse Landlord as Additional Rent for all costs incurred by Landlord in connection with such Existing HVAC Unit(s) repair or replacement upon demand therefor. Notwithstanding the foregoing, Landlord agrees to replace Units 1 and 2 in the 485 Premises and Unit 1A for the 450 Premises (as identified on Exhibit I attached hereto), which Landlord will use reasonable efforts to commence the replacement thereof within ninety (90) days of the Effective Date. Further notwithstanding the foregoing or anything herein to the contrary, Tenant shall be responsible, at its sole cost, during the entire Lease Term for all maintenance, repair and replacement of any supplemental HVAC units installed by or on behalf of Tenant (i.e., any HVAC units serving either of the Premises other than the Existing HVAC Units) (collectively with the Existing HVAC Units, the “Premises HVAC”).
Tenant shall be responsible for obtaining and maintaining, at Tenant’s sole cost, service contracts with reputable, licensed and bonded contractors reasonably approved by Landlord to carry out a program of regular maintenance and repair of the Premises HVAC. From time to time, within five (5) days of Landlord’s request, Tenant shall provide copies of any service reports from such contractor for the Premises HVAC. If Tenant fails to maintain such contract or carry out such routine maintenance and repairs of the Premises HVAC, then in addition to all other remedies available to Landlord at law, in equity, and/or pursuant to this Lease, Landlord may, at its option, perform such maintenance and/or repair of the Premises HVAC, in which event Tenant shall pay Landlord upon demand therefor the cost of such maintenance and/or repairs.
ARTICLE XV
LIABILITY OF LANDLORD
15.1 Landlord, its employees and agents shall not be liable to Tenant, any Invitee or any other person or entity for any damage (including indirect and consequential damage), injury, loss or claim (including claims for the interruption of or loss to business) based on or arising out of any cause whatsoever (except as otherwise provided in this Section), including without limitation the following: repair to any portion of the Premises or either Building; interruption in the use of the Premises or any equipment therein; any accident or damage resulting from any use or operation (by Landlord, Tenant or any other person or entity) of elevators (if any) or heating, cooling, electrical, sewerage or plumbing equipment or apparatus; termination of this Lease by reason of damage to the Premises or either Building; any fire, robbery, theft, vandalism, mysterious disappearance or any other casualty; actions of any other tenant of either Building or Office Park, or of any other person or entity; failure or inability to furnish any service specified in this Lease; and leakage in any part of the Premises or either Building from water, rain, ice or snow that may leak into, or flow from, any part of the Premises or either Building, or from drains, pipes or plumbing fixtures in the Premises or either Building. If any condition exists which may be the basis of a claim of constructive eviction, then Tenant shall give Landlord written notice thereof and a reasonable opportunity to correct such condition, and in the interim Tenant shall not claim that it has been constructively evicted or is entitled to a rent abatement. Any property placed by Tenant or any Invitee in or about the Premises, either Building or Office Park shall be at the sole risk of Tenant, and Landlord shall not in any manner be held responsible therefor. Any person receiving an article delivered for Tenant shall be acting as Tenant’s agent for such purpose and not as Landlord’s agent. For purposes of this Article, the term “Building” shall be deemed to include one or both the 450 Building and 485 Building, as context may require, and the Land. As used herein, “Landlord” shall mean only the owner of each Building and the Land, or of a lease of such Building and the Land, at the time in question, so that in the event of any transfer or transfers of title to either Building and the Land, or of Landlord’s interest in a lease of either Building and the Land, the transferor shall be and hereby is relieved and freed of all obligations of Landlord under this Lease accruing after such transfer, and it shall be deemed, without further agreement, that such transferee has assumed and agreed to perform and observe all obligations of Landlord herein during the period it is the holder of Landlord’s interest under this Lease. Notwithstanding the foregoing provisions of this Section, Landlord shall not be released from liability to Tenant for any physical injury to any natural person caused by
Landlord’s willful misconduct to the extent such injury is not covered by insurance (a) carried by Tenant or such person, or (b) required by this Lease to be carried by Tenant; provided, however, that Landlord shall not under any circumstances be liable for any consequential or indirect damages.
15.2 Tenant shall reimburse the Landlord Indemnified Parties for (as Additional Rent), and shall indemnify, defend upon request and hold such Landlord Indemnified Parties harmless from and against all costs, damages, claims, liabilities, expenses (including attorneys’ fees), losses, penalties and court costs suffered by or claimed against them, directly or indirectly, based on or arising out of, in whole or in part, (a) use and occupancy of the Premises or the business conducted therein, (b) any act or omission of Tenant or any Invitee, (c) any breach of Tenant’s obligations under this Lease, including failure to comply with Laws or surrender the Premises upon the expiration or earlier termination of the Lease Term, or (d) any entry by Tenant or any Invitee upon the Land prior to the Effective Date.
15.3 No landlord hereunder shall be liable for any obligation or liability based on or arising out of any event or condition occurring during the period that such landlord was not the owner of such Building or a landlord’s interest therein. Within five (5) days after request, Tenant shall attorn to such transferee and execute, acknowledge and deliver any document submitted to Tenant confirming such attornment.
15.4 Tenant shall not have the right to set off or deduct any amount allegedly owed to Tenant pursuant to any claim against Landlord from any rent or other sum payable to Landlord. Tenant’s sole remedy for recovering upon such claim shall be to institute an independent action against Landlord, which action shall not be consolidated with any action of Landlord.
15.5 If Tenant or any Invitee is awarded a money judgment against Landlord, then recourse for satisfaction of such judgment shall be limited to execution against Landlord’s estate and interest in either Building. No other asset of Landlord, any partner, director, member, officer or trustee of Landlord (each, an “officer”) or any other person or entity shall be available to satisfy or be subject to such judgment, nor shall any officer or other person or entity be held to have personal liability for satisfaction of any claim or judgment against Landlord or any officer. Notwithstanding anything to the contrary contained in this Lease, neither Landlord nor any Landlord Indemnified Parties shall under any circumstances be liable for any exemplary, punitive, consequential or indirect damages (or for any interruption of or loss to business) in connection with or relating to this Lease.
ARTICLE XVI
RULES
16.1 Tenant and Invitees shall at all times abide by and observe the rules specified in Exhibit C. Tenant and Invitees shall also abide by and observe any other rule that Landlord may promulgate from time to time for the operation and maintenance of each Building, provided that notice thereof is given and such rule is not inconsistent with the provisions of this Lease. All rules shall be binding upon Tenant and enforceable by Landlord as if they were contained herein. Nothing contained in this Lease shall be construed as imposing upon Landlord any duty or
obligation to enforce such rules, or the terms, conditions or covenants contained in any other lease, as against any other tenant, and Landlord shall not be liable to Tenant for the violation of such rules by any other tenant or its employees, agents, assignees, subtenants, invitees or licensees. Landlord shall use reasonable efforts not to enforce any rule or regulation in a manner which unreasonably discriminates among similarly situated tenants.
ARTICLE XVII
DAMAGE OR DESTRUCTION
17.1 If the Premises or either Building are totally or partially damaged or destroyed thereby rendering the 450 Premises and/or the 485 Premises totally or partially inaccessible or unusable, then, subject to the other provisions of this Article XVII, Landlord shall diligently repair and restore the Premises and each Building to substantially the same condition they were in prior to such damage or destruction; provided, however, that if in Landlord’s judgment such repair and restoration cannot be completed within ninety (90) days after the occurrence of such damage or destruction (taking into account the time needed for effecting a satisfactory settlement with any insurance company involved, removal of debris, preparation of plans and issuance of all required governmental permits), then Landlord shall have the right to terminate this Lease by giving written notice of termination within sixty (60) days after the occurrence of such damage or destruction. If this Lease is terminated pursuant to this Article, then rent shall be apportioned (based on the portion of the Premises which is usable after such damage or destruction) and paid to the date of termination. If this Lease is not terminated as a result of such damage or destruction, then until such repair and restoration of the Premises are substantially complete, Tenant shall be required to pay rent only for the portion of the Premises that is usable while such repair and restoration are being made; provided, however, that if such damage or destruction was caused by the act or omission of Tenant or any Invitee, then Tenant shall not be entitled to any such rent reduction. After receipt of all insurance proceeds (including proceeds of insurance maintained by Tenant), Landlord shall proceed with and bear the expenses of such repair and restoration of the Premises and each Building; provided, however, that (a) if such damage or destruction was caused by the act or omission of Tenant or any Invitee, then Tenant shall pay Landlord’s deductible and the amount by which such expenses exceed the insurance proceeds, if any, actually received by Landlord on account of such damage or destruction, (b) Tenant shall pay the amount by which the cost of restoring any item which Landlord is required to restore and Tenant is required to insure exceeds the insurance proceeds received with respect thereto, and (c) Landlord shall not be required to repair or restore any of the original tenant improvements installed pursuant to Exhibit B, any Alterations or any other contents of the Premises (including, without limitation, Tenant’s trade fixtures, decorations, furnishings, equipment or personal property). Notwithstanding anything herein to the contrary, Landlord shall have the right to terminate this Lease if (1) insurance proceeds are insufficient to pay the full cost of such repair and restoration, (2) the holder of any Mortgage fails or refuses to make such insurance proceeds available for such repair and restoration, (3) zoning or other applicable Laws or regulations do not permit such repair and restoration, or (4) either Building is damaged by fire or casualty (whether or not the Premises has been damaged) to such an extent that Landlord decides, in its sole and absolute discretion, not to rebuild or reconstruct such Building.
ARTICLE XVIII
CONDEMNATION
18.1 If one-third or more of the Premises, or the use or occupancy thereof, shall be taken or condemned by any governmental or quasi-governmental authority for any public or quasi-public use or purpose or sold under threat of such a taking or condemnation (collectively, “condemned”), then this Lease shall terminate on the day prior to the date title thereto vests in such authority and rent shall be apportioned as of such date. If less than one-third of the Premises or occupancy thereof is condemned, then this Lease shall continue in full force and effect as to the part of the Premises not so condemned, except that as of the date title vests in such authority Tenant shall not be required to pay rent with respect to the part of the Premises so condemned. Notwithstanding anything herein to the contrary, if twenty-five percent (25%) or more of the Land or either Building is condemned, then whether or not any portion of the Premises is condemned, Landlord shall have the right to terminate this Lease as of the date title vests in such authority.
18.2 All awards, damages and other compensation paid on account of such condemnation shall belong to Landlord, and Tenant assigns to Landlord all rights to such awards, damages and compensation. Tenant shall not make any claim against Landlord or such authority for any portion of such award, damages or compensation attributable to damage to the Premises, value of the unexpired portion of the Lease Term, loss of profits or goodwill, leasehold improvements or severance damages. Nothing contained herein, however, shall prevent Tenant from pursuing a separate claim against the authority for relocation expenses and for the value of furnishings, equipment and trade fixtures installed in the Premises at Tenant’s expense and which Tenant is entitled pursuant to this Lease to remove at the expiration or earlier termination of the Lease Term, provided that such claim shall in no way diminish the award, damages or compensation payable to or recoverable by Landlord in connection with such condemnation.
ARTICLE XIX
DEFAULT
19.1 Each of the following shall constitute an “Event of Default”: (a) Tenant’s failure to make when due any payment of the Base Rent, Additional Rent or other sum; provided, however, that with respect to the first such failure in any twelve (12) month period only, no Event of Default shall be deemed to have occurred unless such failure continues for a period of five (5) days after Landlord delivers written notice thereof to Tenant; (b) Tenant’s failure to perform or observe any covenant or condition of this Lease not otherwise specifically described in this Section 19.1; provided, however, that with respect to the first such failure as to any particular Article of this Lease in any twelve (12) month period only, no Event of Default shall be deemed to have occurred unless such failure continues for ten (10) days after Landlord delivers written notice thereof to Tenant, or such shorter period as is appropriate if such failure can be cured in a shorter period; provided, however, that such cure period shall not be applicable if, in Landlord’s sole and absolute discretion, such failure raises a life/safety issue with respect to either Building or its occupants or visitors, including but not limited to, a threat of personal injury or continuing physical injury to either Building, or if such failure is affecting another
tenant’s use or occupancy of either Building, the Office Park or its premises; (c) Tenant’s abandonment of or failure to continuously occupy the Premises or diligently operate its business at the Premises; (d) an Event of Bankruptcy as specified in Article XX; (e) Tenant’s dissolution or liquidation; (f) any Environmental Default as specified in Section 6.4; or (g) any subletting, assignment, transfer, mortgage or other encumbrance of the Premises or this Lease not permitted by Article VII; or (h) any default by Tenant or any affiliate of Tenant under any other instrument entered into with or for the benefit of Landlord or any affiliate of Landlord.
19.2 If there shall be an Event of Default, then the provisions of this Section shall apply. Landlord shall have the right, at its sole option, to terminate this Lease. In addition, with or without terminating this Lease, Landlord may re-enter, terminate Tenant’s right of possession and take possession of the Premises. The provisions of this Article shall operate as a notice to quit, and Tenant hereby waives any other notice to quit or notice of Landlord’s intention to re-enter the Premises or terminate this Lease. If necessary, Landlord may proceed to recover possession of the Premises under applicable Laws, or by such other proceedings, including re-entry and possession, as may be applicable. If Landlord elects to terminate this Lease and/or elects to terminate Tenant’s right of possession, everything contained in this Lease on the part of Landlord to be done and performed shall cease without prejudice, however, to Tenant’s liability for all Base Rent, Additional Rent and other sums specified herein. Whether or not this Lease and/or Tenant’s right of possession is terminated, Landlord shall have the right, at its sole option, to terminate any renewal or expansion right contained in this Lease and to grant or withhold any consent or approval pursuant to this Lease in its sole and absolute discretion. Landlord may relet the Premises or any part thereof, alone or together with other premises, for such term(s) (which may extend beyond the date on which the Lease Term would have expired but for Tenant’s default) and on such terms and conditions (which may include any concessions or allowances granted by Landlord) as Landlord, in its sole and absolute discretion, may determine, but Landlord shall not be liable for, nor shall Tenant’s obligations hereunder be diminished by reason of, any failure by Landlord to relet all or any portion of the Premises or to collect any rent due upon such reletting. Whether or not this Lease and/or Tenant’s right of possession is terminated or any suit is instituted, Tenant shall be liable for any Base Rent, Additional Rent, damages or other sum which may be due or sustained prior to such default, and for all costs, fees and expenses (including, but not limited to, attorneys’ fees and costs, brokerage fees, expenses incurred in enforcing any of Tenant’s obligations under the Lease or in placing the Premises in first-class rentable condition, advertising expenses, and any concessions or allowances granted by Landlord) incurred by Landlord in pursuit of its remedies hereunder and/or in recovering possession of the Premises and renting the Premises to others from time to time plus other actual or consequential damages suffered or incurred by Landlord on account of Tenant’s default (including, but not limited to late fees or other charges incurred by Landlord under any Mortgage). Tenant also shall be liable for additional damages which at Landlord’s election shall be either one or a combination of the following: (a) an amount equal to the Base Rent and Additional Rent due or which would have become due from the date of Tenant’s default through the remainder of the Lease Term, less the amount of rental, if any, which Landlord receives during such period from others to whom the Premises may be rented (other than any Additional Rent received by Landlord as a result of any failure of such other person to perform any of its obligations to Landlord), which amount shall be computed and payable in monthly installments,
in advance, on the first day of each calendar month following Tenant’s default and continuing until the date on which the Lease Term would have expired but for Tenant’s default, it being understood that separate suits may be brought from time to time to collect any such damages for any month(s) (and any such separate suit shall not in any manner prejudice the right of Landlord to collect any damages for any subsequent month(s)), or Landlord may defer initiating any such suit until after the expiration of the Lease Term (in which event such deferral shall not be construed as a waiver of Landlord’s rights as set forth herein and Landlord’s cause of action shall be deemed not to have accrued until the expiration of the Lease Term), and it being further understood that if Landlord elects to bring suits from time to time prior to reletting the Premises, Landlord shall be entitled to its full damages through the date of the award of damages without regard to any Base Rent, Additional Rent or other sums that are or may be projected to be received by Landlord upon reletting of the Premises; or (b) an amount equal to the sum of (i) all Base Rent, Additional Rent and other sums due or which would be due and payable under this Lease as of the date of Tenant’s default through the end of the scheduled Lease Term, plus (ii) the expenses (including broker and attorneys’ fees) and value of all vacancy periods projected by Landlord to be incurred in connection with the reletting of the Premises, minus (iii) any Base Rent, Additional Rent and other sums which Tenant proves by a preponderance of the evidence would be received by Landlord upon reletting of the Premises from the end of the vacancy period projected by Landlord through the expiration of the scheduled Lease Term. Such amount shall be discounted using a discount factor equal to the yield of the Treasury Note or Bill, as appropriate, having a maturity period approximately commensurate to the remainder of the Lease Term, and such resulting amount shall be payable to Landlord in a lump sum on demand, it being understood that upon payment of such liquidated and agreed final damages, Tenant shall be released from further liability under this Lease with respect to the period after the date of such payment, and that Landlord may bring suit to collect any such damages at any time after an Event of Default shall have occurred. In the event Landlord relets the Premises together with other premises or for a term extending beyond the scheduled expiration of the Lease Term, it is understood that Tenant will not be entitled to apply any base rent, additional rent or other sums generated or projected to be generated by either such other premises or in the period extending beyond the scheduled expiration of the Lease Term (collectively, the “Extra Rent”) against Landlord’s damages. Similarly, in proving the amount that would be received by Landlord upon a reletting of the Premises as set forth in clause (iii) above, Tenant shall not take into account the Extra Rent. The provisions contained in this Section shall be in addition to, and shall not prevent the enforcement of, any claim Landlord may have against Tenant for anticipatory breach of this Lease. Nothing herein shall be construed to affect or prejudice Landlord’s right to prove, and claim in full, unpaid rent accrued prior to termination of this Lease. If Landlord is entitled, or Tenant is required, pursuant to any provision hereof to take any action upon the termination of the Lease Term, then Landlord shall be entitled, and Tenant shall be required, to take such action also upon the termination of Tenant’s right of possession.
19.3 Tenant hereby expressly waives, for itself and all persons claiming by, through or under it, any right of redemption, re-entry or restoration of the operation of this Lease under any present or future Law, including without limitation any such right which Tenant would otherwise have in case Tenant shall be dispossessed for any cause, or in case Landlord shall obtain possession of the Premises as herein provided.
19.4 All rights and remedies of Landlord set forth in this Lease are cumulative and in addition to all other rights and remedies available to Landlord at law or in equity, including those available as a result of any anticipatory breach of this Lease. The exercise by Landlord of any such right or remedy shall not prevent the concurrent or subsequent exercise of any other right or remedy. No delay or failure by Landlord to exercise or enforce any of Landlord’s rights or remedies or Tenant’s obligations shall constitute a waiver of any such rights, remedies or obligations. Landlord shall not be deemed to have waived any default by Tenant unless such waiver expressly is set forth in a written instrument signed by Landlord. If Landlord waives in writing any default by Tenant, such waiver shall not be construed as a waiver of any covenant, condition or agreement set forth in this Lease except as to the specific circumstances described in such written waiver.
19.5 If Landlord shall institute proceedings against Tenant and a compromise or settlement thereof shall be made, then the same shall not constitute a waiver of the same or of any other covenant, condition or agreement set forth herein, nor of any of Landlord’s rights hereunder. Neither the payment by Tenant of a lesser amount than the monthly installment of Base Rent, Additional Rent or of any sums due hereunder nor any endorsement or statement on any check or letter accompanying a check for payment of rent or other sums payable hereunder shall be deemed an accord and satisfaction. Landlord may accept the same without prejudice to Landlord’s right to recover the balance of such rent or other sums or to pursue any other remedy. Notwithstanding any request or designation by Tenant, Landlord may apply any payment received from Tenant to any payment then due. No re-entry by Landlord, and no acceptance by Landlord of keys from Tenant, shall be considered an acceptance of a surrender of this Lease.
19.6 If Tenant fails to make any payment to any third party or to do any act herein required to be made or done by Tenant, then Landlord may, but shall not be required to, make such payment or do such act. The taking of such action by Landlord shall not be considered a cure of such default by Tenant or prevent Landlord from pursuing any remedy it is otherwise entitled to in connection with such default. If Landlord elects to make such payment or do such act, then all expenses incurred by Landlord, plus interest thereon at a rate (the “Default Rate”) equal to the greater of eighteen percent (18%) per annum or the rate per annum which is five (5) whole percentage points higher than the prime rate published in the Money Rates section of the Wall Street Journal, from the date incurred by Landlord to the date of payment thereof by Tenant, shall constitute Additional Rent due hereunder; provided, however, that nothing contained herein shall be construed as permitting Landlord to charge or receive interest in excess of the maximum rate then allowed by law.
19.7 If Tenant fails to make any payment of Base Rent, Additional Rent or any other sum on or before the date such payment is due and payable (without regard to any grace period specified in Section 19.1), then Tenant shall pay to Landlord a late charge of five percent (5%) of the amount of such payment. In addition, such payment and such late fee shall bear interest at the Default Rate from the date such payment or late fee, respectively, became due to the date of payment thereof by Tenant; provided, however, that nothing contained herein shall be construed as permitting Landlord to charge or receive interest in excess of the maximum rate then allowed
by law. Such late charge and interest shall constitute Additional Rent due hereunder without any notice or demand.
19.8 As security for the performance of Tenant’s obligations, Tenant grants to Landlord a lien upon and a security interest in Tenant’s existing or hereafter acquired personal property, inventory, furniture, furnishings, fixtures, equipment, licenses, permits and all other tangible and intangible property, assets and accounts, and all additions, modifications, products and proceeds thereof, including, without limitation, such tangible property which has been used at the Premises, purchased for use at the Premises, located at any time in the Premises or used or to be used in connection with the business conducted or to be conducted in the Premises, whether or not the same may thereafter be removed from the Premises, and including, without limitation, all stock and partnership interests now or hereafter owned by Tenant, legally or beneficially, in any entity which manages, owns or operates the business to be conducted in or upon the Premises. Such lien shall be in addition to all rights of distraint available under applicable law. Within five (5) days after request from time to time, Tenant shall execute, acknowledge and deliver to Landlord a financing statement and any other document evidencing or establishing such lien and security interest which may be requested by Landlord. During the Lease Term, Tenant shall not sell, transfer or remove from the Premises any of the aforementioned tangible property without Landlord’s prior written consent, unless the same shall be promptly replaced with similar items of comparable value. In order to further assure Tenant’s performance of its obligations under this Lease, Tenant covenants that during the Lease Term, it will not convey or otherwise transfer its assets or permit its assets to be encumbered to the extent that any such conveyance, transfer or encumbrance is not done in the ordinary course of Tenant’s business or would materially and adversely affect the net worth of Tenant.
19.9 If more than one natural person or entity shall constitute Tenant, then the liability of each such person or entity shall be joint and several. If Tenant is a general partnership or other entity the partners or members of which are subject to personal liability, then the liability of each such partner or member shall be joint and several. No waiver, release or modification of the obligations of any such person or entity shall affect the obligations of any other such person or entity.
19.10 Should either party institute any action or proceeding to enforce or interpret this Lease or any provision hereof, for damages by reason of any alleged breach of this Lease or of any provision hereof, or for a declaration of rights hereunder, the prevailing party (as determined by the applicable court pursuant to any non-appealable or un-appealed judgment) in any such action or proceeding shall be awarded from the other party all costs and expenses, including, without limitation, attorneys’ and other fees, reasonably incurred in good faith by the prevailing party in connection with such action or proceeding.
ARTICLE XX
BANKRUPTCY
20.1 An “Event of Bankruptcy” is the occurrence with respect to any of Tenant, a Guarantor or any other person liable for Tenant’s obligations hereunder (including, without limitation, any general partner (or, if Tenant is a limited liability company, any member of
Tenant) of Tenant (a “General Partner”)) of any of the following: (a) such person becoming insolvent, as that term is defined in Title 11 of the United States Code (the “Bankruptcy Code”) or under the insolvency laws of any state (the “Insolvency Laws”); (b) appointment of a receiver or custodian for any property of such person, or the institution of a foreclosure or attachment action upon any property of such person; (c) filing by such person of a voluntary petition under the provisions of the Bankruptcy Code or Insolvency Laws; (d) filing of an involuntary petition against such person as the subject debtor under the Bankruptcy Code or Insolvency Laws, which either (1) is not dismissed within thirty (30) days after filing, or (2) results in the issuance of an order for relief against the debtor; or (e) such person making or consenting to an assignment for the benefit of creditors or a composition of creditors; (f) such person submitting (either before or after execution hereof) to Landlord any financial statement containing any material inaccuracy or omission; or (g) a decrease by fifty percent (50%) or more of such person’s net worth below the net worth of such person as of the date hereof. At any time upon not less than five (5) days’ prior written notice, Tenant shall submit such information concerning the financial condition of any such person as Landlord may request. Tenant warrants that all such information heretofore and hereafter submitted is and shall be correct and complete.
20.2 Upon occurrence of an Event of Bankruptcy, Landlord shall have all rights and remedies available pursuant to Article XIX; provided, however, that while a case (the “Case”) in which Tenant is the subject debtor under the Bankruptcy Code is pending, Landlord’s right to terminate this Lease shall be subject, to the extent required by the Bankruptcy Code, to any rights of Tenant or its trustee in bankruptcy (collectively, “Trustee”) to assume or assume and assign this Lease pursuant to the Bankruptcy Code. After the commencement of a Case: (i) Trustee shall perform all post-petition obligations of Tenant under this Lease; and (ii) if Landlord is entitled to damages (including, without limitation, unpaid rent) pursuant to the terms of this Lease, then all such damages shall be entitled to administrative expense priority pursuant to the Bankruptcy Code. Any person or entity to which this Lease is assigned pursuant to the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Lease on and after the date of assignment, and any such assignee shall upon request execute and deliver to Landlord an instrument confirming such assumption. Trustee shall not have the right to assume or assume and assign this Lease unless Trustee promptly (a) cures all defaults under this Lease, (b) compensates Landlord for damages incurred as a result of such defaults, (c) provides adequate assurance of future performance on the part of Trustee as debtor in possession or Trustee’s assignee, and (d) complies with all other requirements of the Bankruptcy Code. If Trustee fails to assume or assume and assign this Lease in accordance with the requirements of the Bankruptcy Code within sixty (60) days after the initiation of the Case, then Trustee shall be deemed to have rejected this Lease. If this Lease is rejected or deemed rejected, then Landlord shall have all rights and remedies available to it pursuant to Article XIX. Adequate assurance of future performance shall require, among other things, that the following minimum criteria be met: (1) Tenant’s gross receipts in the ordinary course of business during the thirty (30) days preceding the Case must be greater than ten (10) times the next monthly installment of Base Rent and Additional Rent due; (2) Both the average and median of Tenant’s monthly gross receipts in the ordinary course of business during the seven (7) months preceding the Case must be greater than the next monthly installment of Base Rent and Additional Rent due; (3) Trustee must pay its estimated pro-rata share of the cost of all services performed or provided by Landlord (whether
directly or through agents or contractors and whether or not previously included as part of Base Rent) in advance of the performance or provision of such services; (4) Trustee must agree that Tenant’s business shall be conducted in a first-class manner, and that no liquidating sale, auction or other non-first-class business operation shall be conducted in the Premises; (5) Trustee must agree that the use of the Premises as stated in this Lease shall remain unchanged and that no prohibited use shall be permitted; (6) Trustee must agree that the assumption or assumption and assignment of this Lease shall not violate or affect the rights of other tenants of either Building or the Office Park; (7) Trustee must pay at the time the next monthly installment of Base Rent is due, in addition to such installment, an amount equal to the monthly installments of Base Rent, and Additional Rent due for the next six (6) months thereafter, such amount to be held as a security deposit; (8) Trustee must agree to pay, at any time Landlord draws on such security deposit, the amount necessary to restore such security deposit to its original amount; (9) Trustee must comply with all duties and obligations of Tenant under this Lease; and (10) all assurances of future performance specified in the Bankruptcy Code must be provided.
ARTICLE XXI
SUBORDINATION
21.1 This Lease is subject and subordinate to the lien, provisions, operation and effect of all mortgages, deeds of trust, ground leases or other security instruments which may now or hereafter encumber either the Building or the Land (collectively, “Mortgages”), to all funds and indebtedness intended to be secured thereby, and to all renewals, extensions, modifications, recastings or refinancings thereof. The holder of any Mortgage to which this Lease is subordinate shall have the right (subject to any required approval of the holders of any superior Mortgage) at any time to declare this Lease to be superior to the lien, provisions, operation and effect of such Mortgage and Tenant shall execute, acknowledge and deliver all documents required by such holder in confirmation thereof.
21.2 Tenant shall at Landlord’s request promptly execute any requisite or appropriate document confirming the foregoing subordination. Tenant appoints Landlord as Tenant’s attorney-in-fact to execute any such document for Tenant. Tenant waives the provisions of any statute or rule of law now or hereafter in effect which may give or purport to give Tenant any right to terminate or otherwise adversely affect this Lease and Tenant’s obligations hereunder in the event any foreclosure proceeding is prosecuted or completed or in the event either Building, the Land or Landlord’s interest therein is transferred by foreclosure, by deed in lieu of foreclosure or otherwise. Landlord agrees to provide a non-disturbance agreement from the holder of the current Mortgage on the form attached hereto as Exhibit H. Landlord agrees to use commercially reasonable efforts to obtain from future holders of each Mortgage a subordination and nondisturbance agreement on such holder’s then current standard form. If this Lease is not extinguished upon any such transfer or by the transferee following such transfer, then, at the request of such transferee, Tenant shall attorn to such transferee and shall recognize such transferee as the landlord under this Lease. Tenant agrees that upon any such attornment, such transferee shall not be (a) bound by any payment of the Base Rent or Additional Rent more than one (1) month in advance, except prepayments in the nature of security for the performance by Tenant of its obligations under this Lease, but only to the extent such prepayments have been
delivered to such transferee, (b) bound by any amendment of this Lease made without the consent of the holder of each Mortgage existing as of the date of such amendment, (c) liable for damages for any breach, act or omission of any prior landlord, or (d) subject to any offsets or defenses which Tenant might have against any prior landlord; provided, however, that after succeeding to Landlord’s interest under this Lease, such transferee shall agree to perform in accordance with the terms of this Lease all obligations of Landlord arising after the date of transfer. Within five (5) days after the request of such transferee, Tenant shall execute, acknowledge and deliver any requisite or appropriate document submitted to Tenant confirming such attornment.
21.3 If any prospective or current holder of a Mortgage requires that modifications to this Lease be obtained, and provided that such modifications (a) are reasonable, (b) do not adversely affect in a material manner Tenant’s use of the Premises as herein permitted, and (c) do not increase the rent and other sums to be paid by Tenant, then Landlord may submit to Tenant an amendment to this Lease incorporating such required modifications, and Tenant shall execute, acknowledge and deliver such amendment to Landlord within five (5) days after Tenant’s receipt thereof.
21.4 If (a) either Building or the Land, or both, are at any time subject to a Mortgage, (b) this Lease and rent payable hereunder is assigned to the holder of the Mortgage, and ( c) the Tenant is given notice of such assignment, including the name and address of the assignee, then, in that event, Tenant shall not terminate this Lease or make any abatement in the rent payable hereunder for any default on the part of the Landlord without first giving notice, in the manner provided elsewhere in this Lease for the giving of notices, to the holder of such Mortgage, specifying the default in reasonable detail, and affording such holder a reasonable opportunity to make performance, at its election, for and on behalf of the Landlord, except that (x) such holder shall have at least 30 days to cure the default; (y) if such default cannot be cured with reasonable diligence and continuity within 30 days, such holder shall have any additional time as may be reasonably necessary to cure the default with reasonable diligence and continuity; and (z) if the default cannot reasonably be cured without such holder having obtained possession of the Building, such holder shall have such additional time as may be reasonably necessary under the circumstances to obtain possession of the Building and thereafter to cure the default with reasonable diligence and continuity. If more than one such holder makes a written request to Landlord to cure the default, the holder making the request whose lien is the most senior shall have such right.
ARTICLE XXII
HOLDING OVER
22.1 Tenant acknowledges that it is extremely important that Landlord have substantial advance notice of the date on which Tenant will vacate the Premises, because Landlord will require an extensive period to locate a replacement tenant and because Landlord plans its entire leasing and renovation program for each Building in reliance on its lease expiration dates. Tenant also acknowledges that if Tenant fails to surrender the Premises or any portion thereof at the expiration or earlier termination of the Lease Term, then it will be conclusively presumed that
the value to Tenant of remaining in possession, and the loss that will be suffered by Landlord as a result thereof, far exceed the Base Rent and Additional Rent that would have been payable had the Lease Term continued during such holdover period. Therefore, if Tenant (or anyone claiming through Tenant) does not immediately surrender the Premises or any portion thereof upon the expiration or earlier termination of the Lease Term, then Tenant shall automatically forfeit all rights to the security deposit then being held by Landlord pursuant to this Lease and the rent payable by Tenant hereunder shall be increased to equal the greater of (1) one hundred twenty-five percent (125%) of the fair market rent for the entire Premises, or (2) double the Base Rent, Additional Rent and other sums that would have been payable pursuant to the provisions of this Lease if the Lease Term had continued during such holdover period. Such rent shall be computed by Landlord and paid by Tenant on a monthly basis and shall be payable on the first day of such holdover period and the first day of each calendar month thereafter during such holdover period until the Premises have been vacated. Notwithstanding any other provision of this Lease, Landlord’s acceptance of such rent shall not in any manner adversely affect Landlord’s other rights and remedies, including Landlord’s right to evict Tenant and to recover all damages. Any such holdover shall be deemed to be a tenancy-at-sufferance and not a tenancy-at-will or tenancy from month-to-month. In no event shall any holdover be deemed a permitted extension or renewal of the Lease Term, and nothing contained herein shall be construed to constitute Landlord’s consent to any holdover or to give Tenant any right with respect thereto.
ARTICLE XXIII
COVENANTS OF LANDLORD
23.1 Landlord covenants that it has the right to enter into this Lease, and that if Tenant shall perform timely all of its obligations hereunder, then, subject to the provisions of this Lease, Tenant shall during the Lease Term peaceably and quietly occupy and enjoy the full possession of the Premises without hindrance by Landlord or any party claiming through or under Landlord. 23.2 Landlord reserves the following rights: (a) to change the street address and name of either Building; (b) to change the arrangement and location of entrances, passageways, doors, doorways, corridors, stairs, toilets or other public parts of either Building; (c) to erect, use and maintain pipes, wires, structural supports, ducts and conduits in and through the Premises; (d) to grant to anyone the exclusive right to conduct any particular business in either Building not inconsistent with Tenant’s permitted use of the Premises; (e) to exclusively use and/or lease the roof areas, the sidewalks and other exterior areas; (f) to resubdivide the Land or to combine the Land with other lands; (g) to relocate any parking areas designated for Tenant’s use; (h) if Tenant vacates either Premises prior to the expiration of the Lease Term, to make Alterations to or otherwise prepare the Premises for reoccupancy without relieving Tenant of its obligation to pay all Base Rent, Additional Rent and other sums due under this Lease through such expiration; (i) to construct improvements (including kiosks) on the Land and in the public and common areas of each Building; (j) to prohibit smoking in the entirety of each Building or portions thereof (including the Premises) and on the Land, so long as such prohibitions are in accordance with applicable law; and (k) if any excavation or other substructure work shall be made or authorized to be made upon land adjacent to either Building or the Land, to enter the Premises for the purpose of doing such work as is required to preserve the walls of each Building and to preserve the land from injury or damage and to support such walls and land by proper foundations.
Landlord may exercise any or all of the foregoing rights without being deemed to be guilty of an eviction, actual or constructive, or a disturbance of Tenant’s business or use or occupancy of the Premises.
ARTICLE XXIV
PARKING
24.1 Landlord shall provide to Tenant, at no additional cost during the Term, the following parking rights: (i) with respect to the 450 Premises, the right to park one (1) standard size automobile in each of 41 (or 3.0 spaces per 1,000 r.s.f. of the 450 Premises then being leased by Tenant) parking spaces (the “450 Parking Spaces”) located on the surface parking lot area abutting the 450 Building (the “450 Parking Area”), which 450 Parking Area is as shown on Exhibit G attached hereto and made a part hereof, and (ii) with respect to the 485 Premises, the right to park one (1) standard size automobile in each of 59 (or 3.0 spaces per 1,000 r.s.f. of the 485 Premises then being leased by Tenant) parking spaces (the “485 Parking Spaces”) located on the surface parking lot area abutting the 485 Building (the “485 Parking Area”), which 485 Parking Area is as shown on Exhibit G attached hereto and made a part hereof, (the 450 Parking Area and 485 Parking Area are together referred to herein as the “Parking Facilities”) (the 450 Parking Spaces and 485 Parking Spaces are together referred to herein as the “Parking Spaces”). Landlord reserves the right to institute either a valet parking system or a self-parking system with respect to all or any part of the Parking Facilities. Use of the Parking Facilities is on a first-come, first-serve, basis and the foregoing Parking Spaces shall be unreserved, except as provided below. Notwithstanding the foregoing, Tenant shall have five (5) of the 450 Parking Spaces and five (5) of the 485 Parking Spaces designated for reserved spaces (collectively, the “Reserved Parking Spaces”) (as designated as the Reserved Parking Spaces on the Exhibits G-1 and G-2, respectively). Tenant shall not assign, sublet or transfer any of the Parking Spaces. Any attempted assignment, sublet, or transfer shall be void. Tenant and its employees shall observe reasonable safety precautions in the use of the Parking Facilities and shall at all times abide by all rules and regulations governing the use of the Parking Facilities promulgated by Landlord. Landlord reserves the right to restrict use of the Parking Facilities during periods repairs and during periods of unusually inclement weather. Landlord does not assume any responsibility, and shall not be held liable, for any damage or loss to any automobile or personal property on or about the Parking Facilities, or for any injury sustained by any person on or about the Parking Facilities.
24.2 Tenant shall install signs, at Tenant’s cost but subject to Landlord’s prior approval and in compliance with all applicable Laws, marking the Reserved Parking Spaces as being reserved for Tenant and its Invitees during Tenant’s business hours. Landlord shall have no obligation to monitor the use of the Reserved Parking Spaces and/or to remove (or cause to be removed) any vehicles from the Reserved Parking Spaces.
ARTICLE XXV
REIT MATTERS
25.1 It is intended that all rent payable by Tenant to Landlord, which includes for purposes of this Section 24.1 all sums, charges, or amounts of whatever nature to be paid by
Tenant to Landlord in accordance with the provisions of this Lease, shall qualify as “rents from real property” within the meaning of Section 512(b)(3) and 856(d) of the Internal Revenue Code (as amended, the “Code”) and the regulations thereunder (the “Tax Regulations”). If Landlord, in its sole discretion, determines that there is any risk that all or part of any rent shall not qualify as “rents from real property” for the purposes of Sections 512(b)(3) or 856(d) of the Code and Tax Regulations, Tenant agrees to (i) cooperate with Landlord by entering into such amendment or amendments to the Lease as Landlord deems necessary to qualify all rent as “rents from real property”, and (ii) permit an assignment of this Lease, in each case provided, such amendments or assignment will not have a material economic impact on Tenant.
25.2 Without limiting Landlord’s right to withhold its consent to any transfer by Tenant, and regardless of whether Landlord shall have consented to any such transfer, neither Tenant, nor any other person having an interest in the possession, use, or occupancy of any portion of the Premises, shall enter into any sublease, license, concession, assignment, or other transfer or agreement for possession, use, or occupancy of all or any portion of the Premises which provides for rental or other payment for such use, occupancy, or utilization based, in whole or in part, on the net income or profits derived by any person or entity from the space so leased, used, or occupied, and any such purported sublease, license, concession, assignment, or other transfer or agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the Premises. There shall be no deduction from the rental payable under any sublease or other transfer nor from the amount of the rental passed on to any person or entity, for any expenses or costs related in any way to the subleasing or transfer of such space.
ARTICLE XXVI
EXTENSION OF LEASE TERM
26.1 Tenant shall have and is hereby granted one option (the “Extension Option”) to extend the Lease Term for the entire Premises for an additional period of five (5) consecutive years (the “Extension Period”), provided that (i) Tenant gives written notice to Landlord of its election to exercise the Extension Option ( the “Extension Option Exercise Notice”) no earlier than fifteen (15) months and no later than twelve (12) months prior the expiration of the initial Lease Term, (ii) Tenant has not assigned this Lease (other than to a Qualified Tenant Affiliate) and is then in possession (either by itself or along with a Qualified Tenant Affiliate) of no less than eighty percent (80%) of the Premises, (iii) no Event of Default by Tenant under this Lease has occurred and then remains uncured, and (iv) no Event of Default occurs between the date that Tenant exercises the Extension Option and the commencement of the Extension Period.
26.2 All terms and conditions of this Lease, including without limitation, all provisions governing the payment of Rent, shall remain in full force and effect during the Extension Period except the Base Rent payable during the Extension Period shall be at the current market rental rate with respect to comparable renewal terms of comparable space in the Herndon submarket of Fairfax County, Virginia (the “Market Area”) at the time of the commencement of the Extension Period, taking into consideration the difference between any tenant improvements allowances, free rent and similar Tenant concessions offered by Landlord in its sole discretion and the market tenant improvement allowances, free rent and similar concessions then being
offered for such comparable transactions (the “Market Rate”) at the time of the commencement of the Extension Period, with subsequent escalations in Base Rent thereafter to be determined by market practice with respect to comparable space therein. Landlord and Tenant shall negotiate to determine the amount of Base Rent for the Extension Period within thirty (30) days of the date of Landlord’s receipt of Tenant’s written notice of its election to exercise the Extension Option (the “Negotiation Period”).
26.3 In the event Landlord and Tenant are unable to agree upon the Base Rent for the Extension Period within the Negotiation Period, then the Base Rent for the Extension Period shall be the Market Rate determined by binding arbitration in accordance with the following procedures. Within fifteen (15) business days after the expiration of the Negotiation Period, Landlord and Tenant shall each select a real estate broker (based on the criteria set forth in Section 26.4 below). Within twenty (20) days of their selection, each broker shall make a written determination of the Market Rental Rate for the Extension Period based upon comparable extension terms for comparable space in the in the Market Area. All determinations of the Market Rate shall be in writing. The party appointing each broker shall be obligated, promptly after receipt of the valuation report prepared by the broker appointed by such party, to deliver a copy of such valuation report to the other party. If the Market Rate determination of the broker designated by Landlord is within five percent (5%) of the Market Rate determination of the broker designated by Tenant, then the Base Rent for the Extension Period shall be the average of the two Base Rent determinations for the Extension Period. If the Market Rate determinations of these two brokers vary by more than five percent (5%), then a third broker shall be selected by the initial two brokers within fifteen (15) business days after the initial two valuation reports have been delivered to the parties (the third broker also having the qualifications set forth in Section 26.4 below). If a third broker is appointed, the third broker shall review the valuation reports of the initial two brokers and select the one of the initial two valuation reports that reflects such criteria for the Market Rate for the Extension Period. The third broker shall promptly deliver a report of his/her determination to each of the parties. The determination of the Market Rate for the Extension Period pursuant to this Section 26.3 shall be binding upon Landlord and Tenant. The expenses of each of the first two brokers appointed under this Section 26.3 shall be borne by the party appointing such broker. The expenses of the third broker appointed under this Section 26.3 shall be paid one-half (½) by Landlord and one-half (½) by Tenant.
26.4 The real estate brokers selected by Landlord and Tenant shall have the following qualifications: (i) must be a licensed real estate broker in the Commonwealth of Virginia; (ii) must have a minimum of ten (10) years’ experience in commercial leasing in the Market Area; (iii) must be an active broker in the Market Area and known for commercial leasing expertise; (iv) in the case of the third broker only, must have experience representing both landlords and tenants; (v) in the case of the third broker only, is not then representing either Landlord or Tenant; and (vi) in the case of the third broker only, shall not have been involved in any disputes with Landlord, Tenant or any of the other brokers. In the event that real estate brokers with the qualifications described in this Section 26.4 are unavailable, qualified consultants with similar qualifications may be substitutes.
26.5 Following the determination of the Base Rent for the Extension Period pursuant to Section 26.2 or Section 26.3 above, Landlord shall prepare an amendment modifying this Lease to set forth the applicable (so determined) Base Rent for the Premises during the Extension Period. Tenant shall execute and deliver the amendment to Landlord within fifteen (15) days after Landlord delivers same to Tenant. If Tenant fails to execute the amendment and deliver the same to Landlord within fifteen (15) days after Landlord tenders the amendment to Tenant, at Landlord’s election, Tenant’s right to extend the Lease Term for the Extension Period shall become null and void. In the event that any of the conditions set forth in Section 26.1 above are not satisfied, then this Lease shall end on the Lease Expiration Date, as applicable, unless earlier terminated in accordance with the terms hereof.
26.6 Notwithstanding anything to the contrary contained in this Article XXVI, the foregoing Extension Option shall be personal to HawkEye 360, Inc. and cannot be exercised by any assignee (other than a Qualified Tenant Affiliate), subtenant or any other person or entity.
ARTICLE XXVII
GENERAL PROVISIONS
27.1 Tenant acknowledges that neither Landlord nor any broker, agent or employee of Landlord has made any representation or promise with respect to the Premises or either Building except as herein expressly set forth, and no right, privilege, easement or license is being acquired by Tenant except as herein expressly set forth.
27.2 Nothing contained in this Lease shall be construed as creating any relationship between Landlord and Tenant other than that of landlord and tenant. Tenant shall not use the name of either Building or the Office Park for any purpose other than as the address of the business to be conducted by Tenant in the Premises, use the name of either Building or the Office Park as Tenant’s business address after Tenant vacates the Premises, or do or permit to be done anything in connection with Tenant’s business or advertising which in the reasonable judgment of Landlord may reflect unfavorably on Landlord or either Building or the Office Park or confuse or mislead the public as to any apparent connection or relationship between Landlord, the Buildings and Tenant.
27.3 Landlord and Tenant each warrants to the other that in connection with this Lease it has not employed or dealt with any broker, agent or finder, other than the Brokers. Landlord acknowledges that Landlord shall pay any commission or fee due to the Brokers pursuant to a separate agreement. Tenant shall indemnify and hold Landlord harmless from and against any claim for brokerage or other commissions asserted by any broker, agent or finder employed by Tenant or with whom Tenant has dealt, other than the Brokers.
27.4 any time and from time to time, upon not less than five (5) days’ prior written notice, Tenant and each subtenant, assignee, licensee or concessionaire or occupant of Tenant shall execute, acknowledge and deliver to Landlord and/or any other person or entity designated by Landlord, a written statement certifying: (a) that this Lease is unmodified and in full force and effect (or if there have been modifications, that this Lease is in full force and effect as modified and stating the modifications); (b) the dates to which the rent and any other charges have been
paid; (c) whether or not Landlord is in default in the performance of any obligation, and if so, specifying the nature of such default; (d) the address to which notices to Tenant are to be sent; (e) that this Lease is subject and subordinate to all Mortgages encumbering the Buildings or the Land; (f) that Tenant has accepted the Premises and that all work thereto has been completed (or if such work has not been completed, specifying the incomplete work); and (g) such other matters as Landlord may reasonably request. Any such statement may be relied upon by any owner of either Building or the Land, any prospective purchaser of either Building or the Land, any holder or prospective holder of a Mortgage or any other person or entity. Tenant acknowledges that time is of the essence to the delivery of such statements and that Tenant’s failure to deliver timely such statements may cause substantial damages resulting from, for example, delays in obtaining financing secured by either Building. Tenant shall be liable for all such damages. If any such statement is not delivered timely by Tenant, then all matters contained in such statement shall be deemed true and accurate.
27.5 LANDLORD, TENANT, ALL GUARANTORS AND ALL GENERAL PARTNERS EACH WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER, TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE. TENANT CONSENTS TO SERVICE OF PROCESS AND ANY PLEADING RELATING TO ANY SUCH ACTION AT THE PREMISES; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL BE CONSTRUED AS REQUIRING SUCH SERVICE AT THE PREMISES. LANDLORD, TENANT, ALL GUARANTORS AND ALL GENERAL PARTNERS EACH WAIVES ANY OBJECTION TO THE VENUE OF ANY ACTION FILED IN ANY COURT SITUATED IN THE JURISDICTION IN WHICH EACH BUILDING IS LOCATED, AND WAIVES ANY RIGHT, CLAIM OR POWER, UNDER THE DOCTRINE OF FORUM NON CONVENIENS OR OTHERWISE, TO TRANSFER ANY SUCH ACTION TO ANY OTHER COURT.
27.6 All notices or other communications required under this Lease shall be in writing and shall be deemed duly given and received when delivered in person (with receipt therefor), on the next business day after deposit with a recognized overnight delivery service, or on the second day after being sent by certified or registered mail, return receipt requested, postage prepaid, to the following addresses: (a) if to Landlord, at each of the Landlord Notice Addresses specified in Article I; (b) if to Tenant, at the Tenant Notice Address specified in Article I. Either party may change its address for the giving of notices by notice given in accordance with this Section. If Landlord or the holder of any Mortgage notifies Tenant that a copy of any notice to Landlord shall be sent to such holder at a specified address, then Tenant shall send (in the manner specified in this Section and at the same time such notice is sent to Landlord) a copy of each such notice to such holder, and no such notice shall be considered duly sent unless such copy is so sent to such holder. Any such holder shall have the rights set forth in Section 21.4. Any cure of Landlord’s default by such holder shall be treated as performance by Landlord.
27.7 Each provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Lease or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, then such provision shall be deemed to be replaced by the valid and enforceable provision most substantively similar to such invalid or unenforceable provision, and the remainder of this Lease and the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby. Nothing contained in this Lease shall be construed as permitting Landlord to charge or receive interest in excess of the maximum rate allowed by law.
27.8 Feminine, masculine or neuter pronouns shall be substituted for those of another form, and the plural or singular shall be substituted for the other number, in any place in which the context may require such substitution.
27.9 The provisions of this Lease shall be binding upon and inure to the benefit of the parties and each of their respective representatives, successors and assigns, subject to the provisions herein restricting assignment or subletting.
27.10 This Lease contains and embodies the entire agreement of the parties hereto and supersedes all prior agreements, negotiations, letters of intent, proposals, representations, warranties, understandings, suggestions and discussions, whether written or oral, between the parties hereto. Any representation, inducement, warranty, understanding or agreement that is not expressly set forth in this Lease shall be of no force or effect. This Lease may be modified or changed in any manner only by an instrument signed by both parties. This Lease includes and incorporates all Exhibits attached hereto.
27.11 This Lease shall be governed by the Laws of the jurisdiction in which the Buildings are located. There shall be no presumption that this Lease be construed more strictly against the party who itself or though its agent prepared it, it being agreed that all parties hereto have participated in the preparation of this Lease and that each party had the opportunity to consult legal counsel before the execution of this Lease.
27.12 Headings are used for convenience and shall not be considered when construing this Lease.
27.13 The submission of an unsigned copy of this document to Tenant shall not constitute an offer or option to lease the Premises. This Lease shall become effective and binding only upon execution and delivery by both Landlord and Tenant.
27.14 Time is of the essence with respect to each of Tenant’s obligations hereunder.
27.15 This Lease may be executed in multiple counterparts, each of which shall be deemed an original and all of which together constitute one and the same document. Faxed signatures shall have the same binding effect as original signatures.
27.16 Neither this Lease nor a memorandum thereof shall be recorded.
27.17 Landlord reserves the right to make reasonable changes and modifications to the plans and specifications for the 450 Building and 485 Building, each without Tenant’s consent,
provided such changes or modifications do not materially and adversely change the character of the 450 Building or 485 Building, respectively.
27.18 In the event of any sale or transfer by the then landlord hereunder of either Building, the landlord whose interest is thus sold or transferred (the “Selling Landlord”) shall be and hereby is completely released and forever discharged from and in respect of all covenants, obligations and liability as Landlord hereunder accruing after the date of such sale or transfer of such Building. Tenant agrees to cooperate with the Selling Landlord and party acquiring such Building (the “New Landlord”) to (i) amend this Lease, to remove therefrom the rights and obligations of Landlord and Tenant with respect to the portion of the Premises in the Building that is sold to, and owned by, the New Landlord, and (ii) enter into a new lease with the New Landlord that incorporates the rights and obligations of Landlord under this Lease with respect to the portion of the Premises in the Building that is sold to, and owned by, the New Landlord, it being understood that such new lease shall be on all the continuing terms and conditions of this Lease that apply to Premises in the Building that is sold; provided that such documents (a) are reasonable, (b) do not adversely affect in a material manner Tenant’s use of either Premises as herein permitted, (c) reflect the allocation of the then-current Security Deposit Amount between the lease for the 450 Premises and lease for the 485 Premises on a pro-rata basis (based on square footage), and (d) do not increase the rent and other sums to be paid by Tenant.
27.19 Except as otherwise provided in this Lease, any additional rent or other sum owed by Tenant to Landlord (other than Base Rent), and any cost, expense, damage or liability incurred by Landlord for which Tenant is liable, shall be considered “Additional Rent” payable pursuant to this Lease to be paid by Tenant no later than ten (10) days after the date Landlord notifies Tenant of the amount thereof. “Rent” or “rent” shall mean all Base Rent and Additional Rent due hereunder.
27.20 Tenant’s liabilities and obligations with respect to the period prior to the expiration or earlier termination of the Lease Term shall survive such expiration or earlier termination.
27.21 If Landlord is in any way delayed or prevented from performing any obligation due to fire, act of God, governmental act or failure to act, strike, labor dispute, inability to procure materials, or any cause beyond Landlord’s reasonable control (whether similar or dissimilar to the foregoing events), then the time for performance of such obligation shall be excused for the period of such delay or prevention and extended for a period equal to the period of such delay, interruption or prevention.
27.22 Landlord’s review, approval and consent powers (including the right to review plans and specifications) are for its benefit only. Such review, approval or consent (or conditions imposed in connection therewith) shall be deemed not to constitute a representation concerning legality, safety or any other matter.
27.23 The deletion of any printed, typed or other portion of this Lease shall not evidence the parties’ intention to contradict such deleted portion. Such deleted portion shall be deemed not to have been inserted in this Lease.
27.24 At the expiration or earlier termination of the Lease Term, Tenant shall deliver to Landlord all keys and security cards to each Building and the Premises, whether such keys were furnished by Landlord or otherwise procured by Tenant, and shall inform Landlord of the combination of each lock, safe and vault, if any, in the Premises.
27.25 Tenant and the person executing and delivering this Lease on Tenant’s behalf each represents and warrants that such person is duly authorized to so act; that Tenant is duly organized, is qualified to do business in the jurisdiction in which the Buildings are located, is in good standing under the Laws of the state of its organization and the Laws of the jurisdiction in which the Buildings are located, and has the power and authority to enter into this Lease; and that all action required to authorize Tenant and such person to enter into this Lease has been duly taken.
27.26 Any elimination or shutting off of light, air, or view by any structure which may be erected on lands adjacent to either Building or by any alterations to either Building undertaken in connection with any such structure shall in no way effect this Lease or impose any liability on Landlord, entitle Tenant to any compensation or abatement of any rent, release Tenant from its obligations under this Lease, constitute an actual or constructive eviction or otherwise affect this Lease.
27.27 This Lease is contingent upon the lender that currently holds the first lien which encumbers each Building approving the Lease. In the event that such lender does not approve the Lease, Landlord shall have the right to terminate this Lease.
27.28 Neither Tenant nor any other person having an interest in the possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease, license, concession, assignment or other agreement for use, occupancy or utilization for space in the Premises which provides for rental or other payment for such use, occupancy or utilization based in whole or in part on the net income or profits derived by any person from the party leased, used, occupied or utilized (other than an amount based on a fixed percentage or percentages of receipts or sales), and Tenant agrees that any such proposed lease, sublease, license, concession, assignment or other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use, occupancy or utilization of any part of the Premises.
27.29 Tenant (and any guarantor of this Lease), no later than fifteen (15) days prior to the date of Lease execution, and thereafter upon written request by Landlord, will provide Landlord with a copy of its most recent financial statements, consisting of a Balance Sheet, Earnings Statement, Statement of Changes in Financial Position, Statement of Changes in Owner’s Equity, and related footnotes, prepared in accordance with generally accepted accounting principles. Such financial statements must be either certified by a certified public accountant or sworn to as to their accuracy and completeness by Tenant’s (or the guarantor’s, if applicable) chief financial officer. The financial statements provided must be as of a date not more than twelve (12) months prior to the date of request. Landlord shall retain such statements in confidence, but may provide copies to any lender, potential lender, purchaser or potential purchaser in connection with a financing or potential financing or sale or potential sale of either Building or any interest therein or in Landlord.
27.30 Each of Landlord and Tenant, each as to itself, hereby represents its compliance with all applicable anti-money laundering laws, including, without limitation, the USA Patriot Act, and the laws administered by the United States Treasury Department’s Office of Foreign Assets Control, including, without limitation, Executive Order 13224 (“Executive Order”) and all regulations promulgated under the International Emergency Economic Powers Act and the Trading with the Enemy Act. Each of Landlord and Tenant further represents and covenants (i) that it is not now, and will not in the future be, on the SDN List published by the United States Treasury Department’s Office of Foreign Assets Control, (ii) that it is not now, and will not in the future be, owned 50 percent or more or otherwise controlled directly or indirectly by any person or entity, on the SDN List published by the United States Treasury Department’s Office of Foreign Assets Control and (iii) that it is not a person otherwise identified by government or legal authority as a person with whom a U.S. Person is prohibited from transacting business, including without limitation having become so prohibited by being or becoming a citizen or resident of Iran, Syria, Sudan, Cuba or the Crimea region or of any other country, region or territory subject to sanctions. As of the date hereof, a list of such designations and the text of the Executive Order are published under the internet website address https://www.treasury.gov/resource-center/sanctions/SDNList/ Pages/default.aspx.
27.31 Tenant hereby agrees that it will not release or cause or permit to be released to the public any press notices, publicity (oral or written) or advertising promotion relating to, or otherwise publicly announce or disclose or cause or permit to be publicly announced or disclosed, in any manner whatsoever, the terms, conditions or substance of this Lease. It is understood that the foregoing shall not preclude Tenant from discussing the substance or any relevant details of this Lease on a confidential basis with any of its attorneys, accountants, professional consultants, financial advisors, rating agencies, or potential lenders, as the case may be, or prevent it from complying with applicable Laws, including, without limitation, governmental regulatory, disclosure, tax and reporting requirements. In addition to any other remedies available to Landlord, Landlord shall have the right to seek equitable relief, including, without limitation, injunctive relief or specific performance, against Tenant and/or its Invitees in order to enforce the provisions of this Section 27.31.
ARTICLE XXVIII
ROOF PROVISIONS
28.1 Subject to the terms herein, (i) Tenant shall have the non-exclusive right to use a portion of the roof of the 485 Building, which portion shall be selected by Landlord in its reasonable discretion, for the installation of one (1) telecommunications antenna and one or more supplemental HVAC units (collectively, the “485 Roof Equipment”) and (ii) Tenant shall have the non-exclusive right to use a portion of the roof of the 450 Building, which portion shall be selected by Landlord in its reasonable discretion, for the installation of one or more supplemental HVAC units (collectively, the “450 Roof Equipment” and together with the 485 Roof Equipment, the “Roof Equipment”), provided that (i) Tenant has obtained all permits, licenses, variances, authorizations and approvals that may be required in order to install such Roof Equipment and any insurance required by Landlord, (ii) Tenant shall have obtained Landlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed,
(iii) Tenant installs any screen or other covering for the Roof Equipment that Landlord in its reasonable discretion may require (the size, type and style of which shall be subject to Landlord’s prior written approval) in order to camouflage or conceal the Roof Equipment, (vii) Tenant shall pay Landlord (within thirty (30) days after demand therefor) an amount equal to all cost incurred by Landlord to have an engineer review the plans and specifications for the Roof Equipment and the plans, specifications and method for attaching the Roof Equipment, and associated equipment, to the roof of each Building, (iv) the Roof Equipment does not affect any antenna, generator or other equipment that is on the roof of either Building and (v) the 485 Roof Equipment is used by Tenant solely in connection with Tenant’s business conducted in the 485 Premises, and the 450 Roof Equipment is used by Tenant solely in connection with Tenant’s business conducted in the 450 Premises, and none of the Roof Equipment is used, marketed, rented or sold to any other person or entity, (vi) the Roof Equipment is permitted under the laws, rules and regulations of the applicable county, state and any other governmental and quasi-governmental authorities having jurisdiction over the Buildings or the Landlord (including, but not limited to, the Federal Communications Commission and the Federal Aviation Administration, if applicable), and (vii) the Roof Equipment conforms to all such laws, rules and regulations. In addition, the style, color, materials and method of installation of the Roof Equipment must be approved by Landlord (in its sole discretion). Tenant shall maintain the Roof Equipment in good condition and repair and in compliance with all applicable Laws.
28.2 Prior to or contemporaneous with requesting Landlord’s approval of the installation of the Roof Equipment, Tenant shall provide to Landlord: (i) plans and specifications for the Roof Equipment (including size, height, weight and color (if other than black, white or gray)) and plans and specifications for installation thereof (the “Roof Equipment Plans”); (ii) copies of all required governmental and quasi-governmental permits, licensees, special zoning variances, and authorizations, all of which Tenant shall obtain at its own cost and expense; and (iii) a policy or certificate of insurance evidencing such insurance coverage as may reasonably be required by Landlord for the installation, operation and maintenance of the Roof Equipment and sufficient to cover, among other things, the indemnities from Tenant to Landlord provided in this Lease. Landlord may withhold its approval of the installation of the Roof Equipment if the installation, operation or removal of the Roof Equipment may (1) damage the structural integrity of either Building or void any warranty or guaranty applicable to the roof of either Building, (2) interfere with any service provided by Landlord to either Building or any tenant or occupant thereof, (3) interfere with the use of any part of either Building by any tenant or occupant in such Building, (4) cause the violation of any zoning ordinance or other governmental or quasi-governmental law, rule or regulation applicable to the Buildings, or (5) reduce the amount of leasable space within the either Building; provided, however, that in any of the foregoing instances Landlord and Tenant shall use good faith efforts to locate an alternate location on the roof. Tenant shall not be entitled to rely on any such approval as being a representation by Landlord that such installation and operation is permitted by or in accordance with any zoning ordinance or other governmental or quasi-governmental law, rule or regulation applicable to the Buildings.
28.3 Landlord, at its sole option and discretion, may require Tenant, at any time prior to the expiration of this Lease, to terminate the operation of the Roof Equipment if it is causing
physical damage to the structural integrity of either Building or voids any warranty or guaranty applicable to the roof of either Building, interfering with any other service provided by such Building, materially interfering with any other tenant’s business, or causing the violation of any condition or provision of this Lease or any governmental or quasi-governmental law, rule or regulation applicable to the Buildings (now or hereafter in effect). If, however, Tenant can correct the damage or prevent said interference caused by the Roof Equipment to Landlord’s satisfaction within thirty (30) days, Tenant may restore its operation so long as Tenant promptly commences to cure such damage and diligently pursues such cure to completion. If the Roof Equipment is not completely corrected and restored to operation within thirty (30) days, Landlord, at its sole option, may require that such Roof Equipment be removed at Tenant’s expense. If Landlord shall require that the Roof Equipment be moved to another location on the roof, either to accommodate Landlord or to provide other tenants or occupants in either Building with access to the roof or the Property for placement of other antennas, other electrical equipment or other Landlord-approved uses or installations, Landlord shall have the right, at its sole expense, to relocate the Roof Equipment to another place on the roof.
28.4 At the expiration or earlier termination of the Term or upon termination of the operation of the Roof Equipment, at Tenant’s sole cost, the Roof Equipment and all cabling and other equipment relating thereto shall be removed from the Buildings and the area(s) where the Roof Equipment was located shall be restored to its condition existing prior to such installation, subject to normal wear and tear, in a manner and with materials reasonably determined by Landlord. Tenant hereby authorizes Landlord, following written notice to Tenant and a ten (10) day period to remove and dispose of the Roof Equipment, to remove and dispose of the Roof Equipment and charge Tenant for all reasonable costs and expenses actually incurred by Landlord in connection therewith. Tenant agrees that Landlord shall not be liable for any property disposed of or removed by Landlord. Tenant’s obligation to perform and observe this covenant shall survive the expiration or earlier termination of the term of this Lease.
28.5 Tenant covenants and agrees that the installation, operation and removal of the Roof Equipment will be at its sole risk. Tenant covenants and agrees absolutely and unconditionally to indemnify, defend and hold Landlord harmless from and against all claims, actions, damages, liability, judgments, settlements, costs and expenses (including reasonable attorneys’ fees and expenses) in connection with the loss of life, personal or bodily injury, damage to property or business or any other loss or injury arising out of the installation, operation, maintenance or removal of the Roof Equipment, including without limitation, any loss or injury resulting from transmissions from the Roof Equipment.
28.6 The provisions of this Article XXVIII are personal to the Tenant originally named in this Lease and cannot be exercised by any assignee or subtenant or any other person or entity.
[Signature Page Follows]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under seal as of the day and year first above written.
| | | | | | | | | | | | | | | | | |
| LANDLORD: |
| | | | | |
| SPRINGPARK PLACE LLC |
| a Delaware limited liability company |
| | | | | |
| | Penzance DC Real Estate Fund REIT LLC, |
| | its Sole Member |
| | | | | |
| | | Penzance DC Real Estate Fund REIT |
| | | Manager LLC | |
| | | its Manger | |
| | | | | |
| | | | | |
| | | | | |
| | | By: | /s/ Michael L. Lefkowitz | [SEAL] |
| | | | Name: Michael L. Lefkowitz |
| | | | Title: Authorized Signatory |
| | | | | | | | | | | | | | |
| TENANT: | | |
| | | | |
| HAWKEYE 360, INC. | | |
| a Delaware corporation | | |
| | | | |
| | | | |
| | | | |
| | | | |
| By | /s/ John Serafini | [SEAL] | |
| | Name: John Serafini |
| | Title: CEO |
Signature Page to Lease
HawkEye 360, Inc. – Spring Park Place
EXHIBIT A-1
PLAN SHOWING 450 PREMISES
EXHIBIT B
WORK AGREEMENT
EXHIBIT C
RULES AND REGULATIONS
EXHIBIT D
CERTIFICATE AFFIRMING THE LEASE COMMENCEMENT DATE
EXHIBIT E
RULES FOR CONTRACTORS
EXHIBIT F
FORM OF LETTER OF CREDIT
EXHIBIT G
PARKING AREA
EXHIBIT H
FORM OF SNDA
EXHIBIT I
PREMISES HVAC
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this “Amendment”) is made as of the 9th day of September, 2024 (the “Effective Date”), by and between Springpark Place LLC, a Delaware limited liability company (“Landlord”), and Hawkeye 360, Inc., a Delaware corporation (“Tenant”).
W I T N E S E T H:
WHEREAS, pursuant to that certain Lease dated June 12, 2023 by and between Landlord and Tenant (the “Existing Lease”) is leasing from Landlord 33,376 rentable square feet of space consisting of the following: (i) approximately 12,678 rentable square feet of space (the “450 Space”) comprising a portion of the first (1st) floor of the building located 450 Springpark Place, Herndon, Virginia and (ii) approximately 20,698 rentable square feet of space (the “485 Space” and collectively with the 450 Space, the “Premises”) portion of the first (1st) floor of the building located 485 Springpark Place, Herndon, Virginia
WHEREAS, Tenant has requested that it be permitted to store and utilized the Permitted Gases (hereinafter defined) in the warehouse area of the Premises (the “Warehouse Area”) (which warehouse area is more particularly identified on Exhibit A) and Landlord has agreed to permit Tenant to store and utilize the Permitted in the Warehouse Area, subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant, intending to be legally bound, hereby agree as follows:
1. Incorporation of Recitals. The foregoing recitals are hereby incorporated in this Amendment and made a part hereof by this reference.
2. Definitions. All capitalized terms used herein shall have the meanings ascribed to them in the Lease, unless otherwise defined herein. The term "Lease" shall mean the Existing Lease, as amended by this Amendment. The term “Permitted Gases” shall mean the types of gases identified on Exhibit B.
3. Use of Permitted Gases.
(a) Tenant may only utilize and store the Permitted Gases in the Warehouse Area. Tenant may not store and/or utilize the Permitted Gases in amounts that exceed the Permitted Amounts (as defined on Exhibit B). Tenant shall be required to store the Permitted Gases in the Required Container Storage (as defined on Exhibit B. In addition, Tenant shall be required to utilize, store and transport the Permitted Gases in accordance with and pursuant to the following: (i) the safety data sheets attached hereto as Exhibits C-1, C-2 and C-3 (as such may be amended, revised, modified and/or supplemented from time to time) (ii) all applicable laws and regulations, (iii) industry standards and best practices, (iv) the requirements and recommendations of Landlord’s and Tenant’s insurance carriers, (v) Landlord’s rules and regulation (as such may be amended, revised, modified and/or supplemented from time to time) and (vi) Tenant’s protocols and procedures attached hereto as Exhibit D. Tenant’s right to use, storage or transport of the Permitted Gases shall be at Tenant’s sole cost and expense.
(b) Tenant shall give Landlord immediate verbal and follow-up written notice of any actual or threatened release, spill or discharge of any Permitted Gases (other than in connection with the normal use of same). Tenant, at Tenant’s sole cost and expense, shall be required to immediately remediate any release, spill or discharge of any Permitted Gases (other than in connection with the normal use of same).
(c) Tenant’s right to utilize and store the Permitted Gases shall terminate in the event Tenant fails to utilize, store and/or transport the Permitted Gases in accordance with and pursuant to the provisions of this Section 3.
4. Removal of Permitted Gases. On or before the expiration or earlier termination of the Lease (or at such earlier time that Tenant is no longer permitted to utilize and/or store the Permitted Gases), Tenant, at Tenant’s sole cost and expense, shall be required to removed the Permitted Gases and the storge containers from the Premises. If Tenant fails to satisfy its obligations under this Section 4 prior to the expiration or earlier termination of this Lease, then Landlord shall have the right to do so on behalf of Tenant, at Tenant’s sole cost and expense, and Tenant shall reimburse Landlord for all costs and expenses incurred by Landlord as a result thereof within thirty (30) days following delivery of an invoice to Tenant. Tenant’s obligations under this Section 4 shall survive any expiration or earlier termination of the Lease.
5. Indemnity. Tenant shall reimburse Landlord, its employees and agents for (as additional rent), and shall indemnify, defend upon request and hold them harmless from and against all costs, damages, claims, liabilities, expenses (including attorneys’ fees), losses, penalties and court costs suffered by or claimed against them, directly or indirectly, based on or arising out of, in whole or in part, the use, storage and/or transport of the Permitted Gases in or about the Premises, Building or the Office Park. The provisions of this Section 5 shall survive the expiration or earlier termination of the Lease.
6. Ratification. Except as expressly amended by this Amendment, all other terms, conditions and provisions of the Lease are hereby ratified and confirmed and shall continue in full force and effect.
7. Estoppel. Tenant hereby certifies and acknowledges that, as of the date of the mutual execution of this Amendment, (a) Landlord is not in default in any respect under the Lease; (b) Tenant does not have any defenses to its obligations under the Lease; and (c) there are no offsets against rent. Tenant acknowledges and agrees that: (i) the representations herein set forth constitute a material consideration to Landlord in entering into this Amendment; (ii) such representations are being made by Tenant for purposes of inducing Landlord to enter into this Amendment; and (iii) Landlord is relying on such representations in entering into this Amendment.
8. Representations. Tenant hereby represents and warrants to Landlord that (i) Tenant has full power and authority to execute and perform this Amendment; (ii) Tenant has taken all action necessary to authorize the execution and performance of this Amendment; and (iii) Landlord is not in default of any of its obligations under the Lease and that such Lease is valid, binding and enforceable in accordance with its terms.
9. Miscellaneous. This Amendment (i) shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns (subject to the restrictions on assignment set forth in the Lease); (ii) shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to conflicts of laws principles; and (iii) may be executed in multiple counterparts, each of which shall constitute an original and all of which shall constitute one and the same agreement. This Amendment contains and embodies the entire agreement of the parties hereto with respect to the matters set forth herein, and supersedes and revokes any and all negotiations, arrangements, letters of intent, representations, inducements or other agreements, oral or in writing with respect to such matters. No representations, inducements or agreements, oral or in writing, between the parties with respect to such matters, unless contained in this Amendment, shall be of any force or effect.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment to Lease under seal as of the day and year first above written.
| | | | | | | | | | | | | | | | | | | | |
| TENANT: |
| | | | | | |
| HAWKEYE 360, INC., |
| a Delaware corporation |
| | | | | | |
| | | | | | |
| | | | | | |
| By: | /s/ Rob Rainhart |
| | Name: | Rob Rainhart |
| | Title: | COO |
| | | | | | |
| | | | | | |
| LANDLORD: |
| | | | | | |
| SPRINGPARK PLACE LLC, |
| a Delaware limited liability company |
| | | | | | |
| | Penzance DC Real Estate Fund REIT LLC,
a Delaware limited liability company,
its Sole Member |
| | | | | | |
| | | Penzance DC Real Estate Fund REIT Manager LLC
a Delaware limited liability company,
its Manager |
| | | | | | |
| | | | | | |
| | | | | | |
| By: | /s/ Michael Lefkowitz |
| | Name: | Michael Lefkowitz |
| | Title: | Authorized Signatory |
EXHIBIT A
WAREHOUSE AREA
EXHIBIT B
PERMITTED GASES
EXHIBIT B-1
PROPYLENE STORAGE
EXHIBIT C-1
SAFETY DATA SHEET - NITROGEN
EXHIBIT C-2
SAFETY DATA SHEET - NITROUS OXIDE
EXHIBIT C-3
SAFETY DATA SHEET - PROPYLENE
EXHIBIT D
TENANT PROTOCOL AND PROCEDURES
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this “Amendment”) is made as of the 18 day of September, 2025 (the “Effective Date”), by and between Springpark Place LLC, a Delaware limited liability company (“Landlord”), and Hawkeye 360, Inc., a Delaware corporation(“Tenant”).
W I T N E S E T H:
WHEREAS, pursuant to that certain Lease dated June 12, 2023 by and between Landlord and Tenant (the “Original Lease”) as amended by that certain First Amendment to Lease by and between Landlord and Tenant dated September 9, 2024 (the “First Amendment” and collectively with the Original Lease, the “Existing Lease”), Tenant is leasing from Landlord and Landlord is leasing to Tenant 33,376 rentable square feet of space consisting of the following: (i) approximately 12,678 rentable square feet of space (the “450 Space”) comprising a portion of the first (1st) floor of the building located 450 Springpark Place, Herndon, Virginia (the “450 Building”) and (ii) approximately 20,698 rentable square feet of space (the “485 Premises” and collectively with the 450 Space, the “Existing Premises”) portion of the first (1st) floor of the building located 485 Springpark Place, Herndon, Virginia (the “485 Building”), all as more particularly described in the Existing Lease.
WHEREAS, Landlord and Tenant desire to amend the Existing Lease to, among other things, (i) expand the Premises (as defined in the Original Lease) to include the Expansion Space (hereafter defined) and (ii) extend the Lease Term (as defined in the Original Lease) of the Lease as to the 450 Space and the Expansion Space and (iii) terminate the Lease (hereinafter defined) with respect to the 485 Space on the 485 Space Termination Date (hereinafter defined) on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant, intending to be legally bound, hereby agree as follows:
1. Incorporation of Recitals. The foregoing recitals are hereby incorporated in this Amendment and made a part hereof by this reference.
2. Definitions. All capitalized terms used herein shall have the meanings ascribed to them in the Lease, unless otherwise defined herein. The term “Lease” shall mean the Existing Lease, as amended by this Amendment.
3. Premises and Expansion Space.
(a) From and after October 1, 2025 (the “Second Amendment Commencement Date”), the Premises shall hereby be expanded to include the approximately 4,978 rentable square feet of space located in the 450 Building and known as “Suite 800” and as more particularly described on Exhibit A attached hereto (the “Expansion Space”). Accordingly, for purposes of the Lease, as of the Second Amendment Commencement Date, “Premises” shall mean the Existing Premises and the Expansion Space and shall consist of approximately 38,354 rentable square feet (i.e. the combined rentable square footage of the Existing Premises and the Expansion Space). As of the Second Amendment Commencement Date, except as otherwise set forth in this Amendment, all terms and conditions of the Lease applicable to the “Premises” shall apply to the Expansion Space as if all such terms and conditions were completely set forth herein. As of the Second Amendment Commencement Date, all references in the Lease to “450 Premises” shall mean both the 450 Space (which prior to the Second Amendment Commencement Date was the sole component of the 450 Premises) and the Expansion Space.
(b) Tenant shall accept the Expansion Space and Existing Premises in there then “as is, where is” condition on the Second Amendment Commencement Date and without any representations or
warranties regarding the condition thereof. It is understood and agreed that Landlord is under no obligation to make any alterations, decorations, additions or improvements in or to the Expansion Space or any other portion of the Premises in connection with this Amendment.
(c) The Expansion Space shall not be included in the Warehouse Area (as defined in the First Amendment).
(d) From and after the Second Amendment Commencement Date, Tenant Proportionate Share with respect to the 450 Premises (i.e. the 450 Space and the Expansion Space) shall be 27.71%, subject to Section 5.4 of the Original Lease.
4. Term.
(a) The Lease Expiration Date (as defined in the Original Lease) is currently February 28, 2030 (the “Current Lease Expiration Date” or the “485 Space Termination Date”).
(b) The Lease Term with respect to the 450 Premises (i.e. the 450 Space and the Expansion Space) is hereby extended to February 28, 2032, unless further extended or earlier terminated in accordance with the terms of the Lease. Accordingly, the Lease Expiration Date as it relates to the 450 Premises (i.e. the 450 Space and the Expansion Space) shall be February 28, 2032, unless further extended or earlier terminated in accordance with the terms of the Lease (the “Extended Lease Expiration Date”).
(c) The Lease Term with respect to the 485 Space shall terminate on the Current Lease Expiration Date, unless further earlier terminated in accordance with the terms of the Lease.
5. Base Rent
(a) Until the Second Amendment Commencement Date, Tenant shall continue to pay Base Rent with respect to the Existing Premises in accordance with the terms of the Existing Lease.
(b) Commencing on the Second Amendment Commencement Date, Tenant shall pay Base Rent with respect to the Premises as follows:
| | | | | | | | | | | | | | | | | | | | | | | |
| Period | Annual Base Rent per Square Foot | 450 Premises | 485 Premises | Total Base Rent |
| Annual Base Rent* | Monthly Base Rent | Annual Base Rent* | Monthly Base Rent | Total Annual Base Rent* | Total Monthly Base Rent |
| 10/1125 -9/30/26 | $28.38 | $501,077.28 | $41,756.44 | $587,409.24 | $48,950.77 | $1,088,486.52 | $120,690.68 |
| 10/1/26 - 9/30/27 | $29.16 | $514,848.96 | $42,904.08 | $603,553.68 | $50,296.14 | $1,118,402.64 | $124,007.76 |
| 10/1127 - 9/30/28 | $29.96 | $528,973.76 | $44,081.15 | $620,112.08 | $51,676.01 | $1,149,085.84 | $127,409.90 |
10/1/28 - 9/30/29 | $30.78 | $543,451.68 | $45,287.64 | $637,084.44 | $53,090.37 | $1,180,536.12 | $130,897.08 |
| 10/1/29 - 2/28/30 | $31.63 | $558,459.28 | $46,538.27 | $654,677.74 | $54,556.48 | $1,213,137.02 | $134,511.84 |
*Annualized and subject to the abatement set forth in Section S(d) hereof.
(c) Commencing on March 1, 2030, Tenant shall pay Base Rent with respect to the space then comprising the Premises (i.e. the 450 Premises) as follows:
| | | | | | | | | | | |
| Period | Annual Base Rent per Square Foot | 450 Premises |
| Annual Base Rent* | Monthly Base Rent |
| 3/1/30-9/30/30 | $31.63 | $558,459.28 | $46,538.27 |
| 10/1/30 -9/30/31 | $32.50 | $573,820.00 | $47,818.33 |
| 10/1/31 -2/28/32 | $33.39 | $589,533.84 | $49,127.82 |
*Annualized
(d) Notwithstanding anything contained in this Amendment to the contrary, Tenant’s obligation to pay Monthly Base Rent with respect to the Expansion Space for the one (1) month period following the Second Amendment Commencement Date shall be abated (the “Expansion Space Rent Abatement”). During such period that any portion of the Base Rent is abated, Tenant shall remain obligated to perform all of Tenant’s other obligations under the Lease. In the event Tenant shall be in default beyond the expiration of any applicable notice and cure period prior to the application of entire amount of the Expansion Space Rent Abatement, the Expansion Space Rent Abatement provided in this Section 5(d) shall be of no force or effect and shall be forfeited. The foregoing provisions shall neither be deemed to be a limitation of nor an alternative to the provisions of Article XVIII of the Lease and the remedies therein provided, but shall be deemed to be an additional remedy.
6. Refurbishment Work.
(a) Tenant intends to refurbish the Expansion Space (the “Refurbishment Work”), the cost of which shall be borne by Tenant, subject to the Refurbishment Work Allowance (hereinafter defined) as provided in Section 6 below. The Refurbishment Work shall be deemed an alteration under the Lease and shall be subject to all the terms and conditions in the Lease concerning alterations including but not limited to the provisions of Article IX of the Original Lease.
(b) The Refurbishment Work shall not commence without Landlord’s prior written approval of the work comprising the Refurbishment Work and the plans, specifications and a finish schedule for such improvements, which approval shall not be unreasonably withheld, conditioned or delayed if the proposed Refurbishment Work does not (or will not), in Landlord’s reasonable judgment, (i) affect the structure or safety of the Building; (ii) adversely affect any of the Building Structure or Systems or the functioning thereof; (iii) be or become visible from the exterior of the Premises; (iv) interfere in any adverse manner with the operation of the Building or the provision of services or utilities to other tenants in the Building; or (v) be of a type or quality which is not consistent with the type or quality of alterations customarily made to office space in 450 Comparable Buildings (as defined in the Original Lease). If Landlord hires any third party in connection with the review or inspection of the Refurbishment Work and/or the plans and specification for the Refurbishment Work, Tenant shall reimburse Landlord for the costs thereof (but only as to the cost incurred by Landlord in connection with the review of any components of the Refurbishment Work related to (or which could affect) the Building Structure and Systems) within fifteen (15) days after Landlord provides to Tenant an invoice therefor. Tenant shall pay an administrative fee (the “Supervision Fee”) to Penzance Management, LLC. (“Penzance”) to compensate Penzance, on behalf of Landlord, for reviewing the plans and specifications for the Refurbishment Work and/or monitoring the Refurbishment Work in an amount equal to three percent (3%) of the Hard Construction Costs (hereinafter defined). Tenant authorizes Landlord to deduct the Supervision Fee from the Refurbishment Work Allowance and pay same to Penzance. As used herein, the term “Hard Construction Costs” means the cost of all materials, labor and services incurred in connection with the performance of the Refurbishment Work including, without limitation, the cost of all permits and licenses, contractors’ overhead and profit, insurance, bonds incurred in connection therewith, but not including the costs of architectural and design services. Prior to commencing the Refurbishment Work, Tenant shall provide to Landlord the name and address of each contractor and subcontractor which Tenant intends to employ to perform the Refurbishment Work, the use of which subcontractors and contractors shall be subject to Landlord’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant shall be required to engage Landlord’s base Building subcontractor and Landlord’s MEP engineer in connection with any Refurbishment Work involving fire and life safety and/or HVAC.
(c) At such time that Landlord has approved the Refurbishment Work and Landlord permits Tenant’s contractors, subcontractors and vendors to enter the Building to perform such work, such entry shall be subject to the observance by Tenant and each contractor, subcontractor and vendor (in each case, a “Contractor”) of all rules and regulations promulgated by Landlord in connection with the performance of work in the Building, including those attached to the Original Lease as Exhibit E.
(d) In the performance of the Refurbishment Work, Tenant (i) shall comply with all applicable laws, codes, ordinances and regulations of the governmental authorities having jurisdiction and (ii) shall obtain all permits, certificates and other governmental approvals from all governmental entities having jurisdiction thereover which are necessary for the prosecution and completion of the Refurbishment Work.
7. Refurbishment Work Allowance.
(a) Landlord agrees to provide Tenant with an allowance (the “Refurbishment Work Allowance”) in the amount of up to Fifty Dollars ($50.00) per rentable square foot of the Expansion Space (ie. $248,900), to be applied against the actual out-of-pocket third party costs and expenses incurred in connection with Refurbishment Work (including the actual construction costs and architectural and engineering fees incurred in connection therewith). Notwithstanding the foregoing, Tenant may utilize up to twenty-five percent (25%) of the Refurbishment Allowance towards costs associated with purchasing and installing Tenant’s furniture, fixtures, equipment and voice and data cabling and wiring in the Expansion Space.
(b) Provided there is no uncured Event of Default by Tenant under the Lease, Landlord shall pay to Tenant, the Refurbishment Work Allowance (or so much thereof as is necessary to cover the costs against which such Improvement Work Allowance may be applied, as provided above), in periodic disbursements (but not more often than once a month) after Tenant has delivered to Landlord the following documentation (each, an “Refurbishment Work Allowance Request”): (1) a copy of all invoices for expenses covered by such Refurbishment Work Allowance Request marked “paid” by the applicable contractor or vendor; (2) copies of all contracts, bills, invoices, vouchers, change orders and other information relating to the expenses for which reimbursement is being sought as may be requested by Landlord; (3) an application for payment and sworn statement of contractor substantially in the form of AIA Document G-702 covering all work for which disbursement is to be made to a date specified therein; (4) a certification from Tenant’s architect substantially in the form of the Architect’s Certificate for Payment which is located on AIA Document G702, Application and Certificate of Payment; (5) contractor’s and subcontractor’s partial waivers of liens on Landlord’s required forms which shall cover all Refurbishment Work for the previous disbursement and the Refurbishment Work for which such contractor is then being paid; (6) with respect to portions of the Refurbishment Work Allowance used to defray construction costs, the portion of the work and materials for which payment is requested have been physically incorporated into the Premises, free of any security interest, lien or encumbrance; and (7) a request to disburse from Tenant. Upon completion of the Refurbishment Work, provided there is no uncured Event of Default by Tenant under the Lease, Landlord shall pay to Tenant the remaining Refurbishment Work Allowance (or so much thereof as is necessary to cover the costs against which such Refurbishment Work Refurbishment Work Allowance may be applied, as provided above) after occurrence of all of the following (the “Final Refurbishment Work Allowance Request”): (A) Tenant has delivered to Landlord contractor’s and subcontractor’s full and final waivers of lien on Landlord’s required forms which shall cover all the Refurbishment Work, (B) Landlord’s inspection and approval of the Refurbishment Work, and (C) Tenant shall have fully performed all of its obligations under the Lease. Notwithstanding anything to the contrary contained in the Lease or this Amendment, Landlord shall have no obligation to disburse more than eighty percent (80%) of the Refurbishment Work Refurbishment Work Allowance prior to Landlord’s receipt from Tenant of the Final Refurbishment Work Allowance Request.
(c) To the extent that the full amount of the Refurbishment Allowance has not been used in accordance with the foregoing by the earlier of (i) the date when the Refurbishment Work is complete or (ii)April 30, 2026, then the remaining balance of the Refurbishment Allowance shall be retained by Landlord, and Tenant shall have no rights whatsoever with respect thereto.
(d) Prior to the commencement of the Improvement Work, Tenant shall deliver to Landlord a construction budget for the Refurbishment Work in accordance with the approved plans for the Refurbishment Work for Landlord’s approval (which approval shall not be unreasonably withheld, conditioned, or delayed). In connection with each Refurbishment Work Allowance Request, Tenant shall
deliver to Landlord a statement (the “Remaining Refurbishment Work Cost Statement”) which shall be certified by Tenant’s general contractor performing the Refurbishment Work showing (x) the total of all hard and soft costs that remain unpaid with respect to the, Refurbishment Work and (y) the actual cost to complete the Refurbishment Work in accordance with the Plans (the sum of (x) and (y) being referred to hereinafter as, the “Remaining Refurbishment Work Cost”). If Landlord at any time determines that the Remaining Refurbishment Work Cost exceeds the undisbursed portion of the Refurbishment Work Allowance then, Landlord shall make all disbursements of the remaining Refurbishment Work Allowance on a “pari passu” basis with Tenant’s simultaneous contribution and payment to the contractors for the then-applicable costs of the Refurbishment Work (“Tenant’s Contribution”) For example, if at the time of any Allowance Request, the Remaining Refurbishment Work Cost equals One Hundred Thousand Dollars ($100,000) and the remaining balance of Refurbishment Work Allowance payable to Tenant is Sixty Thousand Dollars ($60,000), then Tenant shall pay forty percent (40%) of the costs as Tenant’s Contribution and Landlord shall pay sixty percent (60%) thereof out of the Refurbishment Work Allowance.
8. 485 Space Termination. On or before the 485 Space Termination Date, Tenant shall vacate and surrender to Landlord the 485 Space in the condition that the Premises are required to be surrendered at the end of the Lease Term pursuant to the terms of the Lease, and, as of the 485 Space Termination Date, all of the rights and obligations of Landlord and Tenant under the Lease with respect to the 485 Space shall terminate. In addition, all obligations of Tenant with respect to the 485 Space accruing under the Lease after the 485 Space Termination Date shall terminate (but only to the extent such obligations would have terminated at the end of the Term of the Lease); provided, however, Tenant shall remain obligated for any liabilities or obligations (including without limitation the obligation to pay Monthly Base Rent (as defined in the Original Lease), Rent (as defined in the Original Lease); Additional Rent (as defined in the Original Lease) and any and all other amounts payable under the Lease) with respect to such 485 Space accruing under the Lease prior to the 485 Space Surrender Date (hereinafter defined). As of the 485 Space Termination Date, Landlord shall immediately have all rights with respect to the 485 Space, including without limitation the right to possess, lease and use such 485 Space for any purpose whatsoever. If Tenant fails to vacate the 485 Space on or before the 485 Space Termination Date (i) Tenant shall be a holdover tenant with respect to the 485 Space and the provisions of Article XXII of the Lease governing a holdover of the Premises after the end of the Lease Term shall apply to such holdover of the 485 Space, Landlord shall be entitled to immediately take any and all action necessary to recover possession thereof and may assert any and all other rights and remedies available to Landlord as a result thereof and Tenant shall indemnify and hold harmless Landlord from and against any and all claims, liabilities, costs, expenses, losses and damages (including without limitation reasonable attorneys’ fees and consequential damages) incurred by Landlord as a result of such holdover. The “485 Space Surrender Date” shall mean the later to occur of (i) the 485 Space Termination Date, or (ii) the date that Tenant shall have surrendered to Landlord possession of the 485 Space as required hereunder.
9. Expansion Space HVAC Units. As of the Effective Date, there exist certain HVAC units that serve the Expansion Space identified on Exhibit B, attached hereto (the “Existing Expansion Space HVAC Units”). For all purposes under the Lease (including but not limited to Section 14.9 of the Original Lease), the Existing Expansion Space HVAC Units shall be Existing HVAC Units (as defined in the Original Lease).
10. Expansion Space.
(a) In the event that Suite 1200 or Suite 1000 in the 450 Building (each a “Rofo Space”) is or is reasonably anticipated by Landlord to become vacant and freely available for Landlord to lease during the Lease Term, Landlord shall provide Tenant with written notice (an “Availability Notice”) of the availability of such space (the “Expansion Space”). Provided that (i) no default has occurred under the Lease, (ii) no event is occurring that which with the passage of time or the giving of notice (or both) would be deemed a default if not cured within the applicable cure period, (iii) Tenant has not assigned the Lease and is then occupying ninety percent (90%) of the Premises, (iv) as of the Takeover Date (hereinafter
defined), at least two (2) years remain on the Lease Term, and (v) Tenant provides to Landlord written notice (“Expansion Notice”), within ten (10) days after receipt of Landlord’s Availability Notice, of Tenant’s desire to expand the Premises into the Expansion Space, Tenant shall be deemed to have irrevocably committed to lease the Expansion Space at the Expansion Market Rate (hereinafter defined) and executing an amendment (the “Expansion Amendment”) executed and delivered by Landlord and Tenant evidencing such terms.
(b) Base Rent payable for any such Expansion Space during the remaining Lease Term shall be at the current market rental rate (including market concessions such as improvement allowances and rent abatements) with respect to comparable space in the Market Area (hereinafter defined) (the “Expansion Market Rate”) as agreed upon by Landlord and Tenant, with subsequent escalations in Base Rent thereafter to be determined by market practice with respect to comparable space therein. Landlord and Tenant shall negotiate in good faith to determine the amount of Base Rent for the Expansion Space within thirty (30) days of the date of Landlord’s receipt of Tenant’s Expansion Notice (the “Negotiation Period”).
(c) In the event Landlord and Tenant are unable to agree upon the Base Rent for the Expansion Space within said thirty (30)-day period, then the Base Rent for the Expansion Space shall be the Expansion Market Rate determined by binding arbitration in accordance with the following procedures. Within fifteen (15) days after the expiration of the Negotiation Period, Landlord and Tenant shall each select a real estate broker (based on the criteria set forth below). Within twenty (20) days of their selection, each broker shall make a written determination of the Expansion Market Rate for the Expansion Space based upon comparable terms for comparable space in the Herndon submarket of Fairfax County, Virginia (the “Market Area”). All determinations of the Expansion Market Rate shall be in writing. The party appointing each broker shall be obligated, promptly after receipt of the valuation report prepared by the broker appointed by such party, to deliver a copy of such valuation report to the other party. If the Expansion Market Rate determination of the broker designated by Landlord is within five percent (5%) of the Expansion Market Rate determination of the broker designated by Tenant, then the Base Rent for the Expansion Space shall be the average of the two Base Rent determinations for the Expansion Space. If the Expansion Market Rate determinations of these two brokers vary by more than five percent (5%), then a third broker shall be selected by the initial two brokers within fifteen (15) business days after the initial two valuation reports have been delivered to the parties (the third broker also having the qualifications set forth below). If a third broker is appointed, the third broker shall review the valuation reports of the initial two brokers and select the one of the initial two valuation reports that reflects such criteria for the Expansion Market Rate for the Expansion Space. The third broker shall promptly deliver a report of his/her determination to each of the parties. The determination of the Expansion Market Rate for the Expansion Space pursuant to this Section 9(c) shall be binding upon Landlord and Tenant. The expenses of each of the first two brokers appointed under this Section 9(c) shall be borne by the party appointing such broker. The expenses of the third broker appointed under this Section 9(c) be paid one-half (½) by Landlord and one-half (½) by Tenant.
(d) The real estate brokers selected by Landlord and Tenant shall have the following qualifications: (i) must be an independent and licensed real estate broker in the Commonwealth of Virginia; (ii) must have a minimum of ten (10) years’ experience in commercial office leasing in the Market Area; (iii) must be an active broker in the Market Area and known for commercial office expertise; (iv) must have experience representing both landlords and tenants; (v) in the case of the third broker only, is not then representing either Landlord or Tenant; and (vi) in the case of the third broker only, shall not have been involved in any disputes with Landlord, Tenant or any of the other brokers. In the event that real estate brokers with the qualifications described in this Section 9(d) are unavailable, qualified consultants with similar qualifications may be substitutes.
(e) If Tenant is deemed to have irrevocably committed to lease any Expansion Space in accordance with this Section 9, Tenant shall execute the Expansion Amendment modifying the Lease to
expand the Premises into the Expansion Space within fifteen (15) days after Landlord provides such amendment to Tenant.
(f) If Tenant leases the Expansion Space, within the time and in the manner provided in this Section 9, then as of the Takeover Date, the following shall apply:
(i) the Expansion Space shall be added to, and become a part of, the Premises, and Tenant’s lease thereof shall be governed by all of the provisions of the Lease, except as otherwise set forth in the Expansion Amendment;
(ii) the rentable area of the Premises shall be increased by the rentable area of the Expansion Space, as determined by Landlord’s architect;
(iii) Tenant shall commence paying rent based upon the newly increased rentable area of the Premises subject to the terms of the Expansion Amendment;
(iv) the Base Rent per square foot of rentable area of the Expansion Space shall be equal to the amount set forth in the Expansion Amendment;
(v) Landlord shall have the right to require an additional security deposit from Tenant in connection with its leasing of any Expansion Space if Landlord determines additional security is appropriate based on Landlord’s out-of-pocket costs in connection with such Expansion Space and Tenant’s then financial condition and creditworthiness;
(vi) the Expansion Space shall be delivered to Tenant in “as is” condition (subject to the application of any agreed upon concessions set forth in the Expansion Amendment); and Landlord, subject to the application of any agreed upon concessions set forth in the Expansion Amendment, shall have no obligation to make any alterations, decorations, additions or improvements in or to the Expansion Space or provide any construction or other allowance, rent abatement or credit or any other concession in connection with the leasing of the Expansion Space; and (vii) the “Takeover Date”, subject to the application of any agreed upon concessions, shall be the date the initial tenant’s lease of Expansion Space has expired and Landlord has delivered such space to Tenant.
(g) Notwithstanding anything to the contrary contained in this Section 9, Landlord and Tenant agree that Tenant’s right to Lease any ROFO Space is subject to (i) any and all contractual obligations of Landlord in leases existing as of the date by which this Amendment is fully executed, including without limitation any expansion rights and rights of first negotiation or first refusal possessed by party, (ii) any and all contractual obligations of Landlord in leases with respect to any ROFO Space existing after the date Tenant elects not to lease such ROFO Space and (iii) any and all renewal or extensions of the term of any lease with respect to the ROFO Space, whether or not the right to so extend or renew currently exists, is hereafter granted or otherwise agreed to by Landlord. In addition, the provision of this Section 9 shall be personal to Hawkeye 360, Inc. and cannot be exercised by any assignee (other than to a Qualified Tenant Affiliate), subtenant or any other person or entity.
(h) In the event that Tenant leases the Expansion Space from Landlord within the time and manner provided in this Section 9, and Landlord is unable to deliver possession of such space to Tenant for any reason or condition beyond Landlord’s control, including, without limitation, the failure of an existing tenant to vacate such space, Landlord, its agents and employees, shall not be liable or responsible for any claims, damages or liabilities in connection therewith or by reason thereof.
11. Ratification. Except as expressly amended by this Amendment, all other terms, conditions and provisions of the Lease are hereby ratified and confirmed and shall continue in full force and effect.
12. Estoppel. Tenant hereby certifies and acknowledges that, as of the date of the mutual execution of this Amendment, (a) Landlord is not in default in any respect under the Lease; (b) Tenant does not have any defenses to its obligations under the Lease; and (c) there are no offsets against rent. Tenant acknowledges and agrees that: (i) the representations herein set forth constitute a material consideration to Landlord in entering into this Amendment; (ii) such representations are being made by Tenant for purposes of inducing Landlord to enter into this Amendment; and (iii) Landlord is relying on such representations in entering into this Amendment.
13. Representations. Tenant hereby represents and warrants to Landlord that (i) Tenant has full power and authority to execute and perform this Amendment; (ii) Tenant has taken all action necessary to authorize the execution and performance of this Amendment; and (iii) Landlord is not in default of any of its obligations under the Lease and that such Lease is valid, binding and enforceable in accordance with its terms.
14. Miscellaneous. This Amendment (i) shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns (subject to the restrictions on assignment set forth in the Lease); (ii) shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to conflicts of laws principles; and (iii) may be executed in multiple counterparts, each of which shall constitute an original and all of which shall constitute one and the same agreement. This Amendment contains and embodies the entire agreement of the parties hereto with respect to the matters set forth herein, and supersedes and revokes any and all negotiations, arrangements, letters of intent, representations, inducements or other agreements, oral or in writing with respect to such matters. No representations, inducements or agreements, oral or in writing, between the parties with respect to such matters, unless contained in this Amendment, shall be of any force or effect.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Second Amendment to Lease under seal as of the day and year first above written.
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| TENANT: |
| | | | | | | | |
| HAWKEYE 360, INC., |
| a Delaware corporation | |
| | | | | | | | |
| | | | | | | | |
| | | | | | | | |
| By: | /s/ Chris Herndon | [seal] |
| | | Name: Chris Herndon |
| | | Title: COO |
| | | | | | | | |
| | | | | | | | |
| LANDLORD: |
| | | | | | | | |
| SPRINGPARK PLACE LLC |
| a Delaware limited liability company |
| | | | | | | | |
| | Penzance DC Real Estate Fund REIT LLC, |
| | a Delaware limited liability company, |
| | Its Sole Member |
| | | | | | | | |
| | | | Penzance DC Real Estate Fund REIT Manager LLC |
| | | | a Delaware limited liability company, |
| | | | its Manger |
| | | | | | | | |
| | | | | | | | |
| | | | | | | | |
| | | | By: | /s/ Michael Lefkowitz | [seal] |
| | | | | | Name: Michael Lefkowitz | |
| | | | | | Title: Authorized Signatory | |
EXHIBIT A
EXPANSION SPACE
EXHIBIT B
EXPANSION SPACE HVAC UNITS
Exhibit 10.11
Execution Version
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Agreement”) is dated as of the Effective Date by and among SILICON VALLEY BANK, A DIVISION OF FIRST-CITIZENS BANK & TRUST COMPANY (“Bank”), HAWKEYE 360, INC., a Delaware corporation (“Parent”) and HAWKEYE 360 FEDERAL, INC., a Delaware corporation (“HE Federal” and together with Parent, jointly and severally, individually and collectively, as the context requires, “Borrower”).
A. Bank and Borrower have previously entered into the Prior Agreement.
B. Borrower and Bank have agreed to amend and restate, and replace, the Prior Agreement in its entirety. Bank and Borrower hereby agree that the Prior Agreement is amended and restated in its entirety as follows:
1 LOAN AND TERMS OF PAYMENT
1.1 Term Loan.
(a) Availability. Subject to the terms and conditions of this Agreement, upon Borrower’s request on the Effective Date, Bank shall make a term loan advance in the original principal amount of $14,600,000 (the “Term Loan Advance”). Borrower may request the Term Loan Advance as set forth on Schedule I hereto.
(b) Repayment. Borrower shall repay the Term Loan Advance as set forth in Schedule I hereto. All outstanding principal and accrued and unpaid interest under the Term Loan Advance, and all other outstanding Obligations with respect to such Term Loan Advance, are due and payable in full on the Term Loan Maturity Date.
(c) Permitted Prepayment. Borrower shall have the option to prepay all, but not less than all, of the Term Loan Advance, provided Borrower (i) delivers written notice to Bank of its election to prepay the Term Loan Advance at least five (5) Business Days prior to such prepayment, and (ii) pays, on the date of such prepayment (A) the outstanding principal plus accrued and unpaid interest with respect to the Term Loan Advance and (B) all other sums, if any, that shall have become due and payable with respect to the Term Loan Advance, including interest at the Default Rate with respect to any past due amounts.
(d) Mandatory Prepayment Upon an Acceleration. If the Term Loan Advance is accelerated by Bank following the occurrence and during the continuance of an Event of Default, Borrower shall immediately pay to Bank an amount equal to the sum of (i) all outstanding principal plus accrued and unpaid interest with respect to the Term Loan Advance and (ii) all other sums, if any, that shall have become due and payable with respect to the Term Loan Advance, including interest at the Default Rate with respect to any past due amounts.
1.2 Overadvances. If:
(a) as of any month end on or prior to December 31, 2026 for which financial statements have been (or were required to have been) delivered to Bank pursuant to Section 5.3(a), (i) Borrower’s unrestricted and unencumbered (excluding Liens arising under this Agreement and Liens permitted pursuant to clauses (j) or (n) of the definition of Permitted Liens) cash and Cash Equivalents subject to a Control Agreement in favor of Bank in accordance with this Agreement is less than $50,000,000 and (ii) Borrower’s Consolidated Revenue Leverage Ratio is greater than 0.80:1.00, notwithstanding anything set forth in Section 1.1, Borrower shall immediately (A) prepay to Bank in cash the Term Loan Advance under this Agreement, or (B) to the extent permitted pursuant to the Subordination Agreement, prepay to Agent (as defined in the Mezzanine Loan Agreement (or any successor or replacement definition)) the Term Loan Advance (as defined in the Mezzanine Loan Agreement (or any successor or replacement definition)), in either case, in an amount such that after giving pro forma effect to such prepayment as of the applicable month end, Borrower’s Consolidated Revenue Leverage Ratio will not exceed 0.80:1.00; and
(b) as of any month end thereafter for which financial statements have been (or were required to have been) delivered to Bank pursuant to Section 5.3(a), Borrower’s Consolidated Revenue Leverage Ratio is greater than the applicable level set forth below, notwithstanding anything set forth in Section 1.1, Borrower shall immediately (A) prepay to Bank in cash the Term Loan Advance under this Agreement, or (B) to the extent permitted pursuant to the Subordination Agreement and the Mezzanine Loan Agreement, prepay to Agent (as defined in the Mezzanine Loan Agreement (or any successor or replacement definition)) the Term Loan Advance (as defined in the
Mezzanine Loan Agreement (or any successor or replacement definition)), in either case in an amount such that after giving pro forma effect to such prepayment as of the applicable month end, Borrower’s Consolidated Revenue Leverage Ratio will not exceed the ratio opposite the applicable month end:
| | | | | | | | | | | | | | |
| Month Ending | | Maximum Consolidated
Revenue Leverage
Ratio | |
| January 31, 2027 through December 31, 2027 | | 0.70:1.00 | |
| January 31, 2028 and each month end thereafter | | 0.60:1.00 | |
1.3 Payment of Interest on the Credit Extensions.
(a) Interest Payments. Interest on the principal amount of the Term Loan Advance is payable as set forth on Schedule I hereto.
(b) Interest Rate.
(i) Term Loan Advance. Subject to Section 1.3(c), the outstanding principal amount of the Term Loan Advance shall accrue interest as set forth on Schedule I hereto.
(ii) All-In Rate. Notwithstanding any terms in this Agreement to the contrary, if at any time the interest rate applicable to any Obligations is less than zero percent (0.0%), such interest rate shall be deemed to be zero percent (0.0%) for all purposes of this Agreement.
(c) Default Rate. Immediately upon the occurrence and during the continuance of an Event of Default, the outstanding Obligations shall bear interest at a rate per annum which is three percent (3.0%) above the rate that is otherwise applicable thereto (the “Default Rate”) unless Bank otherwise elects from time to time in its sole discretion to impose a smaller increase. Fees and expenses which are required to be paid by Borrower pursuant to the Loan Documents (including, without limitation, Bank Expenses) but are not paid when due shall bear interest until paid at a rate equal to the highest rate applicable to the Obligations. Payment or acceptance of the increased interest rate provided in this Section 1.3(c) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Bank.
(d) Adjustment to Interest Rate. Each change in the interest rate applicable to any amounts payable under the Loan Documents based on changes to the Prime Rate shall be effective on the effective date of any change to the Prime Rate and to the extent of such change.
(e) Interest Computation. Interest shall be computed as set forth on Schedule I hereto. In computing interest, the date of the making of any Credit Extension shall be included and the date of payment shall be excluded; provided, however, that if any Credit Extension is repaid on the same day on which it is made, such day shall be included in computing interest on such Credit Extension.
1.4 Fees. Borrower shall pay to Bank all Bank Expenses incurred through and after the Effective Date, when due (or, if no stated due date, upon demand by Bank).
Unless otherwise provided in this Agreement or in a separate writing by Bank, Borrower shall not be entitled to any credit, rebate, or repayment of any fees earned by Bank pursuant to this Agreement notwithstanding any termination of this Agreement or the suspension or termination of Bank’s obligation to make loans and advances hereunder. Bank may deduct amounts owing by Borrower under the clauses of this Section 1.4 pursuant to the terms of Section 1.5(c). Bank shall provide Borrower written notice of deductions made pursuant to the terms of the clauses of this Section 1.4.
1.5 Payments; Application of Payments; Debit of Accounts.
(a) All payments (including prepayments) to be made by Borrower under any Loan Document shall be made in immediately available funds in Dollars, without setoff, counterclaim, or deduction, before 12:00 p.m. Pacific time on the date when due. Payments of principal and/or interest received after 12:00 p.m. Pacific time are considered received at the opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment shall be due the next Business Day, and additional fees or interest, as applicable, shall continue to accrue until paid.
(b) Bank has the exclusive right to determine the order and manner in which all payments with respect to the Obligations may be applied. Borrower shall have no right to specify the order or the accounts to which Bank shall allocate or apply any payments required to be made by Borrower to Bank or otherwise received by Bank under this Agreement when any such allocation or application is not specified elsewhere in this Agreement.
(c) Bank may debit any of Borrower’s deposit accounts maintained with Bank, including the Designated Deposit Account, for principal and interest payments or any other amounts Borrower owes Bank when due under the Loan Documents. These debits shall not constitute a set-off.
1.6 Change in Circumstances.
(a) Increased Costs. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, Bank, (ii) subject Bank to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitment, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (iii) impose on Bank any other condition, cost or expense (other than Taxes) affecting this Agreement or Credit Extensions made by Bank, and the result of any of the foregoing shall be to increase the cost to Bank of making, converting to, continuing or maintaining any Credit Extension (or of maintaining its obligation to make any such Credit Extension), or to reduce the amount of any sum received or receivable by Bank hereunder (whether of principal, interest or any other amount) then, upon written request of Bank, Borrower shall promptly pay to Bank such additional amount or amounts as will compensate Bank for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If Bank determines that any Change in Law affecting Bank regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on Bank’s capital as a consequence of this Agreement, any term loan facility, or the Credit Extensions made by Bank to a level below that which Bank could have achieved but for such Change in Law (taking into consideration Bank’s policies with respect to capital adequacy and liquidity), then from time to time upon written request of Bank, Borrower shall promptly pay to Bank such additional amount or amounts as will compensate Bank for any such reduction suffered.
(c) Delay in Requests. Failure or delay on the part of Bank to demand compensation pursuant to this Section 1.6 shall not constitute a waiver of Bank’s right to demand such compensation; provided that Borrower shall not be required to compensate Bank pursuant to subsection (a) for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that Bank notifies Borrower of the Change in Law giving rise to such increased costs or reductions (except that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9) month period shall be extended to include the period of retroactive effect).
1.7 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of Borrower) requires the deduction or withholding of any Tax from any such payment by Borrower, then (i) Borrower shall be entitled to make such deduction or withholding, (ii) Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law, and (iii) if such Tax is an Indemnified Tax, the sum payable by Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 1.7) Bank receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment of Other Taxes by Borrower. Without limiting the provisions of subsection (a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law.
(c) Tax Indemnification. Without limiting the provisions of subsections (a) and (b) above, Borrower shall, and does hereby, indemnify Bank, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 1.7) payable or paid by Bank or required to be withheld or deducted from a payment to Bank and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A reasonably detailed certificate as to the amount of such payment or liability delivered to Borrower by Bank shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 1.7, Borrower shall deliver to Bank a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Bank.
(e) Status of Bank. If Bank (including any assignee or successor) is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan Document, it shall deliver to Borrower, at the time or times reasonably requested by Borrower, such properly completed and executed documentation reasonably requested by Borrower as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, Bank, if reasonably requested by Borrower, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by Borrower as will enable Borrower to determine whether or not Bank is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, Bank shall deliver whichever of IRS Form W-9, IRS Form W-8BEN-E, IRS Form W-8ECI or W-8IMY is applicable, as well as any applicable supporting documentation or certifications.
1.8 Procedures for Borrowing.
(a) Term Loan Advance. Subject to the prior satisfaction of all other applicable conditions to the making of a Term Loan Advance set forth in this Agreement (which must be satisfied no later than 12:00 p.m. Pacific time on the applicable Funding Date), to obtain a Term Loan Advance, Borrower shall notify Bank (which notice shall be irrevocable) by 12:00 p.m. Pacific time on the Funding Date of the Term Loan Advance. Such notice shall be made through Bank’s online banking platform by an individual duly authorized by an Administrator, by electronic mail or by telephone. In connection with any such notification, Borrower shall deliver to Bank by electronic mail or through Bank’s online banking platform a completed Payment/Advance Form executed by an Authorized Signer and such other reports and information as Bank may reasonably request. Such Payment/Advance Form and other information (if any) must be received by Bank prior to 12:00 p.m. Pacific time on the requested Funding Date. Bank shall have determined to its satisfaction that any notice of or request for the Term Loan Advance has been duly authorized by Borrower. Bank may rely on any notice given by a person whom Bank believes is an Authorized Signer or other individual authorized by an Administrator. Borrower will indemnify Bank for any loss Bank suffers due to such belief or reliance.
(b) Bank shall credit proceeds of a Credit Extension to the Designated Deposit Account. Bank may make the Term Loan Advance under this Agreement based on instructions from an Authorized Signer or other individual authorized by an Administrator, or without instructions if such Term Loan Advance is necessary to meet Obligations which have become due.
2 CONDITIONS OF CREDIT EXTENSIONS
2.1 Conditions Precedent to Initial Credit Extension. Subject to Section 5.15, the effectiveness of this Agreement and Bank’s obligation to make the initial Credit Extension shall be subject to the satisfaction or waiver, prior to or concurrently with the making of such Credit Extension on or about the Effective Date, of the following conditions precedent:1
1 NTD: CPs are subject to review of lien searches and perfection certificate.
(a) Loan Documents. Bank shall have received each of the following, each of which shall be in form and substance reasonably satisfactory to Bank:
(i) duly executed Loan Documents;
(ii) duly executed amendment to the Warrant, together with a capitalization table and copies of Borrower’s equity documents;
(iii) duly executed Subordination Agreement;
(iv) duly executed collateral assignment of representations and warranties insurance policy;
(v) duly executed Perfection Certificate(s) of Borrower;
(vi) duly executed Stock Pledge Agreement;
(vii) a legal opinion of Borrower’s counsel dated as of the Effective Date;
(viii) a duly executed marketing consent form;
(ix) a completed Payment/Advance Request Form executed by Borrower and otherwise complying with the requirements of Section 1.8.
(b) Corporate Borrowing Certificates (or equivalent Officers’ Certificates); Certified Operating Documents; Good Standing Certificates. Bank shall have received (i) certificate duly executed by a Responsible Officer or secretary of Borrower with respect to Borrower attaching: (A) Operating Documents and (B) Borrowing Resolutions, and (ii) long-form good standing certificates of Borrower certified by the Secretary of State of the State of Delaware with respect to Parent, the Secretary of State of the State of Texas with respect to ISA, and the Secretary of State (or equivalent agency) of each other jurisdiction in which Borrower is qualified to conduct business, in each case as of a date no earlier than 30 days prior to the Effective Date.
(c) Due Diligence. Bank shall have (i) completed a due diligence investigation of the Borrower, and with results, satisfactory to Bank and shall have been given such access to the management, records, books of account, contracts and properties of Borrower and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as it shall have requested received; (ii) received certified copies, dated as of a recent date, of searches for financing statements filed in the central filing offices of the State of Delaware and State of Texas, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Credit Extension, will be terminated or released, and Intellectual Property search results and completed exhibits to the IP Agreement, and (iii) received all asset appraisals, field audits, and such other reports and certifications, as Bank has reasonably requested.
(d) Insurance. Bank shall have received evidence reasonably satisfactory to Bank that the insurance policies and endorsements required by Section 5.6 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and additional insured clauses or endorsements in favor of Bank.
(e) Existing Indebtedness. Bank shall have received (i) duly executed payoff letter from Comerica; and (ii) evidence that (A) the Liens securing Indebtedness owed by Borrower to Comerica will be terminated and (B) the documents and/or filings evidencing the perfection of such Liens, including without limitation any financing statements and/or control agreements, have or will, concurrently with the initial Credit Extension, be terminated.
(f) Patriot Act, etc. Bank shall have received all documentation and other information requested (including beneficial ownership information) in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the USA Patriot Act, and Borrower shall have satisfied all requirements related thereto.
(g) Acquisition, etc. The following transactions shall have been consummated, in each case on terms and conditions reasonably satisfactory to Bank:
(i) the Acquisition shall be consummated in all material respects in accordance with Applicable Law and the Acquisition Agreement;
(ii) all conditions to the consummation of the Acquisition set forth in the Acquisition Documentation shall have been satisfied without any amendments or waivers materially adverse to Bank;
(iii) Bank shall have received a fully executed Acquisition Agreement certified by a Responsible Officer to be a true and complete copy of the Acquisition Agreement; and
(iv) the merger certificate effectuating the Acquisition shall have been filed with the Texas Secretary of State.
(h) Mezzanine Facility. Bank shall have received duly executed copies of the Mezzanine Loan Documents and funding thereunder shall have occurred.
(i) Equity Contribution. Bank shall have received evidence that Parent has received unrestricted gross cash proceeds of at least $55,000,000 on or about the Effective Date from the issuance of capital stock of Parent or capital contributions in respect thereof, in each case excluding Disqualified Stock.
2.2 Conditions Precedent to all Credit Extensions. Bank’s obligation to make each Credit Extension, including the initial Credit Extension, is subject to the following conditions precedent:
(a) receipt of payment of the fees and Bank Expenses then due as specified in Section 1.4 hereof;
(b) receipt of Borrower’s Credit Extension request and the related materials and documents as required by and in accordance with Section 1.8;
(c) the representations and warranties in this Agreement shall be true and correct in all material respects as of the date of any Credit Extension request and as of the Funding Date of each Credit Extension; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date, and no Default or Event of Default shall have occurred and be continuing or result from the Credit Extension. Each Credit Extension is Borrower’s representation and warranty on that date that the representations and warranties in this Agreement remain true and correct in all material respects; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date; and
(d) Bank determines to its satisfaction that there has not been a (i) material impairment in the general affairs, management, results of operation, financial condition, nor any material adverse deviation by Borrower from the business plan of Borrower presented to and accepted by Bank as of the Effective Date (or from a business plan of Borrower presented to and accepted by Bank subsequent to the Effective Date pursuant to Section 5.3), or (ii) Material Adverse Change.
2.3 Covenant to Deliver. Borrower shall deliver to Bank each item required to be delivered to Bank under this Agreement as a condition precedent to any Credit Extension. A Credit Extension made prior to the receipt by Bank of any such item shall not constitute a waiver by Bank of Borrower’s obligation to deliver such item, and the making of any Credit Extension in the absence of a required item shall be in Bank’s commercially reasonable discretion.
3 CREATION OF SECURITY INTEREST
3.1 Grant of Security Interest.
(a) Borrower hereby grants Bank, to secure the payment and performance in full of all of the Obligations, a continuing security interest in, and pledges to Bank, the Collateral, wherever located, whether now owned or hereafter acquired or arising, and all proceeds and products thereof.
(b) Borrower acknowledges that it previously has entered, or may in the future enter, into Bank Services Agreements with Bank. Regardless of the terms of any Bank Services Agreement, Borrower agrees that any amounts Borrower owes Bank thereunder shall be deemed to be Obligations hereunder and that it is the intent of Borrower and Bank to have all such Obligations secured by the first priority perfected security interest in the Collateral granted herein (subject to Permitted Liens).
3.2 Authorization to File Financing Statements. Borrower hereby authorizes Bank to file financing statements, without notice to Borrower, with all jurisdictions deemed necessary or appropriate by Bank to perfect or protect Bank’s interest or rights hereunder, including a notice that any disposition of the Collateral, by Borrower or any other Person (except in accordance with this Agreement), shall be deemed to violate the rights of Bank under the Code. Such financing statements may indicate the Collateral as “all assets of the Debtor” or words of similar effect.
3.3 Termination. If this Agreement is terminated, Bank’s Lien in the Collateral shall continue until the Obligations (other than inchoate indemnity obligations, any obligations which, by their terms, are to survive the termination of this Agreement and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3) are repaid in full in cash. Upon payment in full in cash of the Obligations (other than inchoate indemnity obligations, any obligations which, by their terms, are to survive the termination of this Agreement and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3) and at such time as Bank’s obligation to make Credit Extensions has terminated, Bank shall, at Borrower’s sole cost and expense, terminate its security interest in the Collateral and all rights therein shall revert to Borrower. In the event (a) all Obligations (other than inchoate indemnity obligations and any obligations which, by their terms, are to survive the termination of this Agreement), except for Bank Services, are satisfied in full, and (b) this Agreement is terminated, Bank shall terminate the security interest granted herein upon Borrower providing cash collateral acceptable to Bank in its commercially reasonable discretion for Bank Services, if any. In the event such Bank Services consist of outstanding Letters of Credit, Borrower shall provide to Bank cash collateral in an amount equal to at least (x) 103.0% of the face amount of all such Letters of Credit denominated in Dollars and (y) 108.0% of the Dollar Equivalent of the face amount of all such Letters of Credit denominated in a Foreign Currency, plus, in each case, all interest, fees, and costs due or estimated by Bank in its commercially reasonable judgment to become due in connection therewith, to secure all of the Obligations relating to such Letters of Credit.
3.4 Release of Collateral. Bank hereby agrees that any Liens granted to Bank by Borrower or any of its Subsidiaries on any Collateral shall be automatically released (a) in accordance with Section 3.3, upon the satisfaction in full, in cash, of the Obligations and termination of this Agreement (other than inchoate indemnity obligations, any obligations which, by their terms, are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3), (b) if such Collateral is sold, transferred or otherwise disposed of by Borrower or any of its Subsidiaries pursuant to any sale, transfer or other disposition that is made in compliance with, and subject to the terms and condition of, this Agreement or (c) if required to effect any sale, transfer or other disposition of such Collateral in connection with any exercise of remedies by Bank pursuant to Section 8. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Borrower or any of its Subsidiaries in respect of) all interests retained by Bank in Borrower or any of its Subsidiaries. Upon Borrower’s reasonable request and at Borrower’s sole cost and expense, Bank shall execute, deliver or authorize such documents as may be reasonably required to evidence any release described above.
4 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
4.1 Due Organization, Authorization; Power and Authority.
(a) Borrower and each of its Subsidiaries are each duly existing and in good standing as a Registered Organization in their respective jurisdiction of formation and are qualified and licensed to do business and
is in good standing in any jurisdiction in which the conduct of their respective business or their ownership of property requires that they be qualified except where the failure to do so could not reasonably be expected to have a material adverse effect on Borrower’s business or operations.
(b) All information set forth on the Perfection Certificate (as updated from time to time pursuant to the terms herein) pertaining to Borrower and each of its Subsidiaries is true and correct in all material respects (it being understood and agreed that Borrower may from time to time update certain information in the Perfection Certificate after the Effective Date to the extent permitted by one or more specific provisions in this Agreement and the Perfection Certificate shall be deemed to be updated to the extent such notice is provided to Bank of such permitted update).
(c) The execution, delivery and performance by Borrower and each of its Subsidiaries of the Loan Documents to which it is a party have been duly authorized, and do not (i) conflict with any of Borrower’s or any such Subsidiary’s organizational documents, (ii) contravene, conflict with, constitute a default under or violate any material Applicable Law, (iii) contravene, conflict with or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which Borrower or any of its Subsidiaries or any of their property or assets may be bound or affected, (iv) require any action by, filing (other than a financing statement), registration, or qualification with, or Governmental Approval from, any Governmental Authority (except such Governmental Approvals which have already been obtained and are in full force and effect or are being obtained pursuant to Section 5.2(b)), or (v) conflict with, contravene, constitute a default or breach under, or result in or permit the termination or acceleration of, any material agreement by which Borrower or any of its Subsidiaries is bound. Neither Borrower nor any of its Subsidiaries are in default under any agreement to which it is a party or by which it is bound in which the default could reasonably be expected to have a material adverse effect on Borrower’s or any of its Subsidiary’s business or operations.
4.2 Collateral.
(a) The security interest granted herein is and shall at all times continue to be a first priority perfected security interest in the Collateral (subject to Permitted Liens). Borrower has good title to, rights in, and the power to transfer each item of the Collateral upon which it purports to grant a Lien hereunder, free and clear of any and all Liens except Permitted Liens.
(b) Borrower has no Collateral Accounts at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the Collateral Accounts described in the Perfection Certificate delivered to Bank in connection herewith and which Borrower has taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to the terms of Section 5.7(c). The Accounts are bona fide, existing obligations of the Account Debtors.
(c) The Collateral (other than (i) any mobile Equipment in possession of Borrower’s employees or agents, (ii) promotional, marketing, and advertising materials, (iii) items in transit, or (iv) with an aggregate value in excess of $750,000) is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate or as permitted pursuant to Section 6.2. None of the components of the Collateral (other than (i) any mobile Equipment in possession of Borrower’s employees or agents, (ii) promotional, marketing, and advertising materials, (iii) items in transit, or (iv) with an aggregate value in excess of $750,000) shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 6.2.
(d) All Inventory is in all material respects of good and marketable quality, free from material defects.
(e) Borrower owns, or possesses the right to use to the extent necessary in its business, all Intellectual Property, licenses and other intangible assets that are used in the conduct of its business as now operated, except to the extent that such failure to own or possess the right to use such asset would not reasonably be expected to have a material adverse effect on Borrower’s business or operations, and no such asset, to the best knowledge of Borrower, conflicts with the valid Intellectual Property, license, or intangible asset of any other Person to the extent that such conflict could reasonably be expected to have a material adverse effect on Borrower’s business or operations.
(f) Except as noted on the Perfection Certificate or for which notice has been given to Bank pursuant to and in accordance with Section 5.9(c), Borrower is not a party to, nor is it bound by, any Restricted License.
4.3 Litigation. Other than as set forth in the Perfection Certificate or as disclosed to Bank pursuant to Section 5.3(i), there are no actions, investigations or proceedings pending or, to the knowledge of any Responsible Officer, threatened in writing by or against Borrower or any of its Subsidiaries which could reasonably be expected to result in damages or costs, including settlement payments, to Borrower or any of its Subsidiaries of more than, individually or in the aggregate, $500,000 not covered by independent third party insurance as to which liability has been accepted by the carrier providing such insurance.
4.4 Financial Statements; Financial Condition. All consolidated financial statements for Parent and any of its Subsidiaries delivered to Bank by submission to the Financial Statement Repository, or otherwise submitted to Bank fairly present in all material respects Parent’s consolidated financial condition and Parent’s consolidated results of operations for the periods covered thereby, subject, in the case of unaudited financial statements, to normal year-end adjustments and the absence of footnote disclosures. All consolidated financial statements for ISA and any of its Subsidiaries delivered to Bank by submission to the Financial Statement Repository, or otherwise submitted to Bank fairly present in all material respects ISA’s consolidated financial condition and ISA’s consolidated results of operations for the periods covered thereby, subject, in the case of unaudited financial statements, to normal year-end adjustments and the absence of footnote disclosures. There has not been any material deterioration in Parent’s consolidated financial condition since the date of the most recent financial statements submitted to the Financial Statement Repository, or otherwise submitted to Bank. As of the Effective Date, there has not been any material deterioration in ISA’s consolidated financial condition since the date of the most recent financial statements submitted to the Financial Statement Repository, or otherwise submitted to Bank.
4.5 Solvency. The fair salable value of Parent’s consolidated assets (including goodwill minus disposition costs) exceeds the fair value of Borrower’s liabilities; Borrower is not left with unreasonably small capital after the transactions in this Agreement, the Acquisition, and the incurrence of Indebtedness under the Mezzanine Loan Agreement; and Borrower and each of its Subsidiaries are able to pay their debts (including trade debts) as they mature.
4.6 Regulatory Compliance. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower and each of its Subsidiaries (a) have complied with all Applicable Law and (b) have not violated any Applicable Law, except, in the case of clauses (a) and (b), where the non-compliance with which or violation of which could not reasonably be expected to have a material adverse effect on Borrower’s business or operations. Borrower and each of its Subsidiaries have duly complied with, and their respective facilities, business, assets, property, leaseholds, real property and Equipment are in compliance with, Environmental Laws, except where the failure to do so could not reasonably be expected to have a material adverse effect on Borrower’s business or operations; there have been no outstanding citations, notices or orders of non-compliance issued to Borrower or any of its Subsidiaries or relating to their respective facilities, businesses, assets, property, leaseholds, real property or Equipment under such Environmental Laws which would not reasonably be expected to have a material adverse effect on Borrower’s business or operations. Borrower and each of its Subsidiaries have obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all Governmental Authorities that are necessary to continue their respective businesses as currently conducted in all material respects.
4.7 Subsidiaries; Investments. Borrower does not own any stock, unit, membership interest, partnership, or other ownership interest or other equity securities except for Permitted Investments.
4.8 Tax Returns and Payments; Pension Contributions.
(a) Borrower and each of its Subsidiaries have timely filed, or submitted extensions for, all required tax returns and reports, except for returns or reports related to taxes as may be due or owing in amounts that do not individually or in the aggregate, exceed $100,000, and Borrower and each of its Subsidiaries have timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower and each of its Subsidiaries except (a) to the extent such taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor, or (b) if such taxes, assessments, deposits and contributions
do not, individually or in the aggregate, exceed $100,000. Borrower is unaware of any claims or adjustments proposed for any of Borrower’s or any of its Subsidiary’s prior tax years which could result in additional taxes becoming due and payable by Borrower or any of its Subsidiaries in excess of $100,000 in the aggregate.
(b) If and to the extent applicable, Borrower and each of its Subsidiaries have paid all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with their terms, and neither Borrower nor any of its Subsidiaries has withdrawn from participation in, and has not permitted partial or complete termination of, or permitted the occurrence of any other event with respect to, any such plan which could reasonably be expected to result in any liability of Borrower or any of its Subsidiaries, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.
4.9 Full Disclosure. No written representation, warranty or other statement of Borrower or any of its Subsidiaries in any report, certificate or written statement submitted to the Financial Statement Repository or otherwise submitted to Bank in connection with the Loan Documents, or the transactions contemplated thereby, as of the date such representation, warranty, or other statement was made, taken together with all such reports, certificates and written statements submitted to the Financial Statement Repository or otherwise submitted to Bank in connection with the Loan Documents, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained in the reports, certificates or written statements not misleading in light of the circumstances under which they were made (it being recognized by Bank that the projections and forecasts provided by Borrower or any of its Subsidiaries in good faith and based upon reasonable assumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results). As of the date hereof, the representations and warranties of the purchaser, and to Borrower’s knowledge, of the seller, contained in the Acquisition Documentation, as are material to the interest of Bank, are true and correct in all material respects and all conditions to the consummation of the Acquisition set forth in the Acquisition Documentation have been satisfied without any amendments or waivers materially adverse to Bank.
4.10 Sanctions. Neither Borrower nor any of its Subsidiaries is: (a) in violation of any Sanctions; or (b) a Sanctioned Person. Neither Borrower nor any of its Subsidiaries, directors, or officers, or, to the knowledge of Borrower, any of its employees, agents or Affiliates: (i) conducts any business or engages in any transaction or dealing with any Sanctioned Person, including making or receiving any contribution of funds, goods or services to or for the benefit of any Sanctioned Person; (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to any Sanctions; (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Sanctions; or (iv) otherwise engages in any transaction that could cause Bank to violate any Sanctions.
4.11 Certain Documents. Borrower has delivered to Bank a complete and correct copy of the Acquisition Documentation, including any amendments, supplements or modifications with respect to any of the foregoing. The Acquisition Agreement is the valid, binding and enforceable obligation of the parties thereto.
5 AFFIRMATIVE COVENANTS
Borrower shall do all of the following:
5.1 Use of Proceeds. Cause the proceeds of the Credit Extensions to be used solely (a) as working capital, (b) to finance the Acquisition, (c) repay in full Indebtedness of ISA to Comerica, or (d) to fund its general business purposes, and not for personal, family, household or agricultural purposes, and not in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any applicable anti-corruption law.
5.2 Government Compliance.
(a) Maintain its and all of its Subsidiaries’ legal existence (except as permitted under Section 6.3 with respect to Subsidiaries only) and good standing in their respective jurisdictions of formation and maintain qualification in each jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on Borrower’s business or operations. Borrower shall comply, and have each Subsidiary comply with all Applicable Law, except where the non-compliance with which could not reasonably be expected to have a material adverse effect on Borrower’s business or operations.
(b) Obtain all of the Governmental Approvals necessary for the performance by Borrower and each of its Subsidiaries of their obligations under the Loan Documents to which it is a party, including any grant of a security interest to Bank in all of the Collateral. Upon the request of Bank, Borrower shall promptly provide copies of any such obtained Governmental Approvals to Bank.
5.3 Financial Statements, Reports. Deliver to Bank by submitting to the Financial Statement Repository:
(a) Monthly Financial Statements. As soon as available, but no later than 30 days after the last day of each month, a company prepared consolidated balance sheet, income statement and cash flow statement covering Borrower’s consolidated operations for such month in a form reasonably acceptable to Bank;
(b) Compliance Statement. Within 30 days after the last day of each month and together with the statements set forth in Section 5.3(a), a duly completed Compliance Statement, confirming that as of the end of such month, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Bank may reasonably request;
(c) Annual Operating Budget and Financial Projections. Within the earlier of (i) 60 days after the end of each fiscal year of Parent and (ii) 60 days after the first Board meeting of each fiscal year of Parent, and within 10 days of any Board approved updates or amendments thereto, (A) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the current fiscal year of Parent, and (B) annual financial projections for the current fiscal year (on a quarterly basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such annual financial projections;
(d) Annual Audited Financial Statements. As soon as available, and in any event within 180 days following the end of Parent’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than a “going concern” or like qualification or emphasis of matter based on the pending maturity of the Indebtedness under this Agreement and/or the Mezzanine Loan Agreement) on the financial statements from an independent certified public accounting firm reasonably acceptable to Bank; provided that, Grant Thornton LLP shall be considered acceptable to Bank;
(e) Accounts and Backlog Information. Commencing with the statements to be delivered for the month ended February 28, 2026, within 30 days after the end of each month and together with the statements set forth in Section 5.3(a), (i) monthly accounts receivable agings, aged by invoice date, (ii) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and (iii) a backlog report in form and substance reasonably satisfactory to Bank;
(f) SEC Filings. In the event that Parent or any of its Subsidiaries becomes subject to the reporting requirements under the Exchange Act within five (5) Business Days of filing, notification of the filing and copies of all periodic and other reports, proxy statements and other materials filed by Parent and/or any of its Subsidiaries or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Parent or any of its Subsidiaries posts such documents, or provides a link thereto, on Parent’s or any of its Subsidiaries’ website on the internet at Parent’s or any of its Subsidiaries’ website address;
(g) Security Holder and Subordinated Debt Holder Reports. Within 5 Business Days of delivery, copies of all material statements, reports and notices made available to Parent’s security holders or to any holders of Subordinated Debt (solely in their capacities as security holders or holders of Subordinated Debt and not in any other role);
(h) Beneficial Ownership Information. Prompt written notice of any changes to the beneficial ownership information set out in Section 14 of the Perfection Certificate. Borrower understands and acknowledges that Bank relies on such true, accurate and up-to-date beneficial ownership information to meet Bank’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers;
(i) Legal Action Notice. Prompt written notice of any legal actions, investigations or proceedings pending or threatened in writing against Parent or any of its Subsidiaries that could reasonably be expected to result in damages or costs to Parent or any of its Subsidiaries of, individually or in the aggregate, $500,000 or more;
(j) Tort Claim Notice. If Borrower shall acquire a commercial tort claim with a value, individually or in the aggregate, in excess of $500,000, Borrower shall promptly notify Bank in a writing signed by Borrower of the general details thereof and grant to Bank in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to Bank;
(k) Government Filings. Within 5 Business Days after the same are sent or received, copies of all correspondence, reports, documents and other filings by Parent or any of its Subsidiaries with any Governmental Authority regarding compliance with or maintenance of Governmental Approvals or Applicable Law or that could reasonably be expected to have a material effect on any of the Governmental Approvals or otherwise on the business of Parent or any of its Subsidiaries;
(l) Registered Organization. If Borrower is not a Registered Organization as of the Effective Date but later becomes one, promptly notify Bank of such occurrence and provide Bank with Borrower’s organizational identification number;
(m) Default. Prompt written notice of the occurrence of a Default or Event of Default;
(n) Acquisition Documentation. Not later than 3 days prior to the effectiveness thereof, copies of substantially final drafts of any proposed, material amendment, supplement, waiver or other modification with respect to the Acquisition Documentation;
(o) Board Package and Decks. Within 15 days of submission to the Board, copies of each board package and deck that Parent provides and/or presents to its Board in connection with its regularly scheduled annual and quarterly meetings or otherwise; provided that, Parent may redact any information contained in such materials that is (i) subject to attorney-client privilege or other legal privilege, (ii) prohibited from being disclosed pursuant to Applicable Law or Borrower’s contractual obligations with a Person that is not an Affiliate of Borrower and not entered into to evade obligations hereunder, or (iii) so long as no Event of Default under Section 7.1 or 7.5 has occurred and is continuing, information or data subject to CUI (Controlled Unclassified Information) / ITAR (International Traffic in Arms Regulations) controls;
(p) Capitalization Table. Prior to an IPO, within 30 days after each fiscal year of Parent, a current capitalization table of Parent, in form and detail acceptable to Bank;
(q) 409A. Prior to an IPO, within 10 days after approval by the Board thereof, a copy of Borrower’s most recent 409A valuation report;
(r) Key Person. Within ten 10 Business Days following such departure, provide notice to Bank of any Key Person departing from or ceasing to be employed by Borrower; and
(s) Other Information. Promptly, from time to time, such other information regarding Borrower or any of its Subsidiaries or compliance with the terms of any Loan Documents as reasonably requested by Bank.
Any submission by Borrower of a Compliance Statement or any other financial statement submitted to the Financial Statement Repository pursuant to this Section 5.3 or otherwise submitted to Bank shall be deemed to be a representation by Borrower that (i) as of the date of such Compliance Statement or other financial statement, the information and calculations set forth therein are true and correct, (ii) as of the end of the compliance period set forth in such submission, Borrower is in compliance with all required covenants except as noted in such Compliance Statement or other financial statement, as applicable, (iii) as of the date of such submission, no Events of Default have occurred or are continuing, except as noted in such Compliance Statement, (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 4 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement or other financial statement, as applicable, (v) as of the date of such submission, Borrower and each of its Subsidiaries has timely filed
all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 4.8, and (vi) as of the date of such submission, no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.
5.4 Taxes; Pensions.
(a) Timely file, and require each of its Subsidiaries to timely file (in each case, unless subject to a valid extension), all required tax returns and reports and timely pay, and require each of its Subsidiaries to timely pay, all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower and each of its Subsidiaries in excess of $100,000, except for deferred payment of any taxes contested pursuant to the terms of Section 4.8(a) hereof, and shall deliver to Bank, on demand, appropriate certificates attesting to such payments, and pay, and require each of its Subsidiaries to pay, all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with their terms.
(b) To the extent Borrower or any of its Subsidiaries defers payment of any contested taxes, (i) notify Bank in writing of the commencement of, and any material development in, the proceedings, and (ii) post bonds or take any other steps required to prevent the Governmental Authority levying such contested taxes from obtaining a Lien upon any of the Collateral that is other than a “Permitted Lien.”
5.5 Access to Collateral; Books and Records. At reasonable times, on two (2) Business Days’ written notice (provided no notice is required if an Event of Default has occurred and is continuing), Bank, or its agents, shall have the right to inspect the Collateral and the right to audit and copy Borrower’s Books. Such inspections and audits shall be conducted no more often than once every 12 months, unless an Event of Default has occurred and is continuing, in which case such inspections and audits shall occur as often as Bank shall determine is necessary. The foregoing inspections and audits shall be conducted at Borrower’s expense and the charge therefor shall be $1,000.00 per person per day (or such higher amount as shall represent Bank’s then-current standard charge for the same), plus documented out-of-pocket expenses. In the event Borrower and Bank schedule an audit more than eight (8) days in advance, and Borrower cancels or seeks to or reschedules the audit with less than eight (8) days written notice to Bank, then (without limiting any of Bank’s rights or remedies) Borrower shall pay Bank a fee of $2,000.00 plus any documented out-of-pocket expenses incurred by Bank to compensate Bank for the anticipated costs and expenses of the cancellation or rescheduling.
5.6 Insurance.
(a) (a) Keep its business and the Collateral insured for risks and in amounts standard for companies in Parent’s industry and location and as Bank may reasonably request (including without limitation, cybersecurity insurance). Insurance policies shall be in a form, with financially sound and reputable insurance companies that are not Affiliates of Borrower, and in amounts standard for companies in Borrower’s industry and location.
(b) All property policies shall have a lender’s loss payable endorsement showing Bank as lender loss payee (or similar as reasonably acceptable to Bank). All liability policies shall show, or have endorsements showing, Bank as an additional insured. Bank shall be named as lender loss payee and/or additional insured with respect to any such insurance providing coverage in respect of any Collateral.
(c) Ensure that proceeds payable under any property policy are, at Bank’s option, payable to Bank on account of the Obligations. Notwithstanding the foregoing, (i) so long as no Event of Default has occurred and is continuing, Borrower shall have the option of applying the proceeds of any casualty policy up to $500,000 individually with respect to any loss or in the aggregate for all losses under all casualty policies in any one year, toward the replacement or repair of destroyed or damaged property; provided that any such replaced or repaired property (A) shall be of equal or like value as the replaced or repaired Collateral and (B) shall be deemed Collateral in which Bank has been granted a first priority security interest, and (ii) after the occurrence and during the continuance of an Event of Default, all proceeds payable under such casualty policy shall, at the option of Bank, be payable to Bank on account of the Obligations.
(d) At Bank’s request, Borrower shall deliver certified copies of insurance policies and evidence of all premium payments. Each provider of any such insurance required under this Section 5.6 shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to Bank, that it will give Bank 30 days (10 days’ for nonpayment of premium) prior written notice before any such policy or policies shall be canceled. Borrower shall provide notice to Bank on the next Compliance Statement delivered by Borrower to Bank if any of Borrower’s insurance policies are altered or any new policies are opened. If Borrower fails to obtain insurance as required under this Section 5.6 or to pay any amount or furnish any required proof of payment to third persons and Bank, Bank may make all or part of such payment or obtain such insurance policies required in this Section 5.6, and take any action under the policies Bank deems prudent.
5.7 Accounts.
(a) Maintain Borrower’s, any of its Subsidiaries’, and any Guarantor’s primary banking relationship (including all United States-based operating accounts) with Bank or Bank’s Affiliates such that consolidated account balances of Borrower and its Subsidiaries and Guarantors maintained with Bank or Bank’s Affiliates represent at least 75% of the aggregate Dollar Equivalent value of all cash and Cash Equivalents of Borrower and its Subsidiaries and Guarantors.
(b) Subject to Section 5.15, in addition to the foregoing, Borrower, any Subsidiary of Borrower and any Guarantor, shall obtain any business credit card, letter of credit and other cash management services exclusively from Bank or Bank’s Affiliates.
(c) In addition to and without limiting the restrictions in (a), Borrower shall provide Bank five (5) Business Days prior written notice before establishing any Collateral Account at or with any bank or financial institution other than Bank or Bank’s Affiliates. For each Collateral Account that Borrower at any time maintains, Borrower shall cause the applicable bank or financial institution (including, for the avoidance of doubt, Bank) at or with which any Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Bank’s Lien in such Collateral Account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of Bank. The provisions of the previous sentence shall not apply to (i) deposit accounts exclusively used for payroll, payroll taxes, and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Bank by Borrower as such; provided, however, that the funds on deposit in such deposit accounts will at no time exceed the actual payroll, payroll taxes, withholding taxes and other employee wage and benefit payments then owing for the immediately succeeding payroll period (or greater amount to the extent required by Applicable Law), (ii) deposit accounts holding less than $500,000 in the aggregate amongst all such accounts, and (iii) those deposit accounts maintained with Bank ending x1253, x9466, and x9100 securing those certain letters of credit issued by Bank identified as numbers 001100442795, 001100545359, and 001100545590 for so long as such accounts are securing such letters of credit, provided that the funds in such account shall not exceed the lesser of $4,587,194.75 (excluding interest, if any, thereon) and 105.0% of the aggregate face amounts of such letters of credit at any time.
5.8 Financial Covenant. Maintain at all times, certified to Bank as of the last day of each month, unrestricted and unencumbered (excluding Liens arising under this Agreement and Liens permitted pursuant to clauses (j) or (n) of the definition of Permitted Liens) cash and Cash Equivalents of Borrower with Bank or Bank’s Affiliates subject to a Control Agreement in favor of Bank (subject to the time period set forth in Section 5.15(f)) in accordance with this Agreement of at least $10,000,000.
5.9 Protection and Registration of Intellectual Property Rights.
(a) (i) Use commercially reasonable efforts to protect, defend and maintain the validity and enforceability of Borrower’s and each Subsidiary’s Intellectual Property, except to the extent that such failure to do so would not reasonably be expected to have a material adverse effect on Borrower’s business or operations; (ii) promptly (and in any event no later than each month at the time of then-next Compliance Statement delivered pursuant to Section 5.3(b)) advise Bank in writing of infringements or any other event that could reasonably be expected to materially and adversely affect the value Borrower’s and each Subsidiary’s Intellectual Property; and (iii) not allow any Intellectual Property material to Borrower’s or any Subsidiary’s business to be abandoned, forfeited or dedicated to the public without Bank’s written consent.
(b) If Borrower (i) obtains any Patent, registered Trademark, registered Copyright, registered mask work, or any pending application for any of the foregoing, whether as owner, licensee or otherwise, or (ii) applies
for any Patent or the registration of any Trademark, then Borrower shall promptly provide written notice thereof to Bank (and in any event no later than in connection with the then-next Compliance Statement required to be delivered hereunder) and shall execute such intellectual property security agreements and other documents and take such other actions as Bank may request in its commercially reasonable discretion to perfect and maintain a first priority perfected security interest in favor of Bank in such property within five (5) Business Days of such request. If Borrower intends to register any Copyrights or mask works in the United States Copyright Office, Borrower shall: (x) provide Bank with at least 15 Business Days prior written notice of Borrower’s registration of such Copyrights or mask works together with a copy of the application it intends to file with the United States Copyright Office (excluding exhibits thereto); (y) prior to the date of registration of the Copyrights or mask works described in (x), execute an intellectual property security agreement and such other documents and take such other actions as Bank may request in its commercially reasonable discretion to perfect and maintain a first priority perfected security interest in favor of Bank in such Copyrights or mask works; and (z) record such intellectual property security agreement with the United States Copyright Office contemporaneously with filing the Copyright or mask work application(s) with the United States Copyright Office. Borrower shall promptly provide to Bank copies of all applications that it files for Patents or for the registration of Trademarks, Copyrights or mask works, together with evidence of the recording of the intellectual property security agreement required for Bank to perfect and maintain a first priority perfected security interest in such property.
(c) Provide written notice to Bank within 30 days of entering or becoming bound by any Restricted License. Borrower shall take such commercially reasonable steps as Bank reasonably requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (i) any such Restricted License to be deemed “Collateral” and for Bank to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such Restricted License, whether now existing or entered into in the future, and (ii) Bank to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Bank’s rights and remedies under this Agreement and the other Loan Documents.
5.10 Litigation Cooperation. From the date hereof and continuing through the termination of this Agreement, make available to Bank, without expense to Bank, Borrower and its officers, employees and agents and Borrower’s books and records, to the extent that Bank may deem them reasonably necessary to prosecute or defend any third-party suit or proceeding instituted by or against Bank with respect to any Collateral or relating to Borrower; provided that Borrower shall not be required to provide access to materials constituting a privileged communication.
5.11 Formation or Acquisition of Subsidiaries. Notwithstanding and without limiting the negative covenants contained in Sections 6.3 and 6.7 hereof, within 30 days after the date that Borrower or any Guarantor forms any Subsidiary or acquires any Subsidiary after the Effective Date (including, without limitation, pursuant to a Division), Borrower and such Guarantor shall (a) cause such new Subsidiary to provide to Bank a joinder to this Agreement to become a co-borrower hereunder or a guaranty to become a Guarantor hereunder (as determined by Bank in its commercially reasonable discretion), together with documentation, all in form and substance reasonably satisfactory to Bank (including being sufficient to grant Bank a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary), (b) provide to Bank appropriate certificates and powers and financing statements, pledging all of the direct or beneficial ownership interest in such new Subsidiary, in form and substance reasonably satisfactory to Bank, and (c) provide to Bank all other documentation in form and substance reasonably satisfactory to Bank, including one or more opinions of counsel satisfactory to Bank, which in its opinion is appropriate with respect to the execution and delivery of the applicable documentation referred to above. Any document, agreement, or instrument executed or issued pursuant to this Section 5.11 shall be a Loan Document.
5.12 Inventory; Returns. Keep all Inventory in good and marketable condition, free from material defects. Returns and allowances between Borrower and its Account Debtors shall follow Borrower’s customary practices as they exist at the Effective Date. Borrower shall promptly notify Bank of all returns, recoveries, disputes and claims that involve more than $200,000.
5.13 Further Assurances. Execute any further instruments and take such further action as Bank reasonably requests to perfect, protect, ensure the priority of or continue Bank’s Lien on the Collateral or to effect the purposes of this Agreement.
5.14 Sanctions. (a) Not, and not permit any of its Subsidiaries to, engage in any of the activities described in Section 4.10 in the future; (b) not, and not permit any of its Subsidiaries to, become a Sanctioned Person; (c) ensure that the proceeds of the Obligations are not used to violate any Sanctions; and (d) deliver to Bank any certification or other evidence requested from time to time by Bank in its sole discretion, confirming each such
Person’s compliance with this Section 5.14. In addition, have implemented, and will consistently apply while this Agreement is in effect, procedures to ensure that the representations and warranties in Section 4.10 remain true and correct while this Agreement is in effect.
5.15 Post-Closing Matters. Deliver to Bank each of the following, in form and substance reasonably acceptable to Bank within the time periods set forth below (or such longer periods as agreed to by Bank in its sole discretion):
(a) within 10 Business Days of the Effective Date, any certificates or other instruments representing or evidencing any Borrower’s equity interests in its Subsidiaries, accompanied by appropriate duly executed instruments of transfer or assignment (including, without limitation, stock powers and irrevocable proxies) in blank; and
(b) within 30 days of the Effective Date, duly executed Control Agreements pertaining to accounts of Borrower maintained with Citibank, Comerica and PNC Bank;;
(c) within 30 days of the Effective Date, Bank shall have received insurance certificates and endorsements satisfying the requirements of Section 5.6, in form and substance reasonably satisfactory to Bank;
(d) Borrower shall use commercially reasonable efforts to provide, within thirty 45 days of the Effective Date, Bank with duly executed landlord’s consents in favor of Bank for the principal place of business of each Borrower and for each of Borrower’s leased locations containing in excess of $750,000 of Borrower’s assets or property, by the respective landlord thereof;
(e) within 90 days of the Effective Date, ISA shall maintain all business credit card, letter of credit and other cash management services exclusively with Bank or Bank’s Affiliates;
(f) within fifteen (15) Business Days of the Effective Date, duly executed Control Agreements pertaining to accounts of Borrower maintained with Bank or Bank’s Affiliates; and
(g) within fifteen (15) days of the Effective Date:
(i) a duly executed joinder agreement to the Loan Documents pursuant to which, among other things, ISA shall become a co-borrower hereunder;
(ii) a duly executed intellectual property security agreement;
(iii) a legal opinion of ISA’s counsel;
(iv) a certificate duly executed by a Responsible Officer or secretary of ISA with respect to ISA attaching: (A) Operating Documents and (B) Borrowing Resolutions, and (C) long-form good standing certificates of ISA certified by the Secretary of State of the State of Texas and the Secretary of State (or equivalent agency) of each other jurisdiction in which Borrower is qualified to conduct business, in each case as of a date no earlier than 30 days prior to the date of joinder;
(v) certified copies, dated as of a recent date, of searches for financing statements filed in the central filing office of the State of Texas, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements constitute Permitted Liens, and Intellectual Property search results and completed exhibits to the intellectual property security agreement; and
(vi) all documentation and other information requested by Bank (including beneficial ownership information) in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the USA Patriot Act, and Borrower shall have satisfied all requirements related thereto.
6 NEGATIVE COVENANTS
Borrower shall not do any of the following without Bank’s prior written consent:
6.1 Dispositions. Convey, sell, lease, transfer, assign, or otherwise dispose of (including, without limitation, pursuant to a Division) (collectively, “Transfer”), or permit any of its Subsidiaries to Transfer, all or any part of its business or property, except for Transfers (a) of Inventory in the ordinary course of business; (b) of worn-out, surplus or obsolete Equipment that is, in the reasonable judgment of Borrower, no longer economically practicable to maintain or useful in the ordinary course of business of Borrower; (c) consisting of Permitted Liens and Permitted Investments; (d) consisting of the sale or issuance of any stock, partnership, membership, or other ownership interest or other equity securities of Borrower not prohibited under Section 6.2 of this Agreement; (e) consisting of Borrower’s or its Subsidiaries’ use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents; (f) of non-exclusive licenses for the use of the property of Borrower or its Subsidiaries in the ordinary course of business; (g) consisting of the one-time sale, for fair market value, of ISA’s commercial property business line; provided that (i) at the time of any such Transfer, no Event of Default shall have occurred and be continuing or would result therefrom, (ii) such Transfer shall occur within 360 days after the Effective Date, (iii) Borrower shall be in compliance with Section 5.8 immediately after giving pro forma effect to such Transfer, (iv) at least 75% of the fair market value of the consideration received by Borrower for such Transfer shall be received by Borrower upon consummation of the such Transfer and shall be in the form of cash or Cash Equivalents, and (v) such line of business shall have generated less than 5.0% of Parent’s pro forma consolidated revenue, determined in accordance with GAAP, for the most recent 4 fiscal quarter period ending prior to such Transfer for which financial statements have been (or were required to have been) delivered to Bank; and (h) of other non-material assets not to exceed $200,000 in the aggregate per fiscal year.
6.2 Changes in Business, Management, Control, or Business Locations. (a) Engage in or permit any of its Subsidiaries to engage in any business other than the businesses currently engaged in by Borrower and such Subsidiary, as applicable, or reasonably related or incidental thereto; (b) liquidate or dissolve or permit any of its Subsidiaries to liquidate or dissolve; (c) permit, allow or suffer to occur any Change in Control; or (d) without at least 10 days prior written notice to Bank, (i) add any new offices or business locations, including warehouses (unless such new offices or business locations contain less than $750,000 in Borrower’s assets or property) or deliver any portion of the Collateral valued, individually or in the aggregate, in excess of $750,000 to a bailee at a location other than to a bailee and at a location already disclosed in the Perfection Certificate, (ii) change its jurisdiction of organization, (iii) change its organizational structure or type, (iv) change its legal name, or (v) change any organizational number (if any) assigned by its jurisdiction of organization. If Borrower intends to add any new offices or business locations, including warehouses, containing in excess of $750,000 of Borrower’s assets or property, then Borrower will use commercially reasonable efforts to cause the landlord of any such new offices or business locations, including warehouses, to execute and deliver a landlord consent in form and substance satisfactory to Bank. If Borrower intends to deliver any portion of the Collateral valued, individually or in the aggregate, in excess of $750,000 to a bailee, and Bank and such bailee are not already parties to a bailee agreement governing both the Collateral and the location to which Borrower intends to deliver the Collateral, then Borrower will use commercially reasonable efforts to cause such bailee to execute and deliver a bailee agreement in form and substance reasonably satisfactory to Bank.
6.3 Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with any other Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the stock, partnership, membership, or other ownership interest or other equity securities or property of another Person (including, without limitation, by the formation of any Subsidiary or pursuant to a Division) other than Permitted Acquisitions. A Subsidiary may merge or consolidate into another Subsidiary or into Borrower. or Guarantor; provided that, in a merger or consolidation involving a Guarantor or Borrower, such Guarantor or Borrower is the surviving entity; provided further that, in a merger or consolidation between a Guarantor and Borrower, Borrower is the surviving entity.
6.4 Indebtedness. Create, incur, assume, or be liable for any Indebtedness, or permit any Subsidiary to do so, other than Permitted Indebtedness. Further, notwithstanding the foregoing or anything set forth herein, Borrower shall not create, incur, assume, or be liable for any Permitted Indebtedness, or permit any Subsidiary to do so, to the extent prohibited by Borrower’s or such Subsidiary’s Operating Documents.
6.5 Encumbrance. Create, incur, allow, or suffer to exist any Lien on any of its property, or assign or convey any right to receive income, including the sale of any Accounts, or permit any of its Subsidiaries to do so, except for Permitted Liens, permit any Collateral not to be subject to the first priority security interest granted herein (subject only to Permitted Liens that are permitted pursuant to the terms of this Agreement to have superior priority to Bank’s Lien in this Agreement), or enter into any agreement, document, instrument or other arrangement (except
with or in favor of Bank) with any Person which directly or indirectly prohibits or has the effect of prohibiting Borrower or any Subsidiary from assigning, mortgaging, pledging, granting a security interest in or upon, or encumbering any of Borrower’s or any Subsidiary’s Intellectual Property, except (a) as is otherwise permitted in Section 6.1 hereof and the definition of “Permitted Liens” herein, (b) customary restrictions on assignment, transfer and encumbrances in license agreements under which Borrower or a Subsidiary is the licensee, and (c) covenants with such restrictions in contracts of sale or merger or acquisition agreements, provided that in the case of this clause (c), (i) such covenants do not prohibit or restrict Borrower from granting a security interest in Borrower’s or any Subsidiary’s Intellectual Property in favor of Bank and (ii) the counter-parties to such covenants are not permitted to receive or obtain a security interest in Borrower’s Intellectual Property or any Collateral.
6.6 Maintenance of Collateral Accounts. Maintain any Collateral Account except pursuant to the terms of Section 5.7(c). In addition, neither Borrower nor any of its Subsidiaries shall maintain any accounts or sub- accounts in connection with an insured cash sweep program, except with respect to which Bank has a Control Agreement over the master account on terms and conditions satisfactory to Bank in its discretion and such master account is maintained with Bank.
6.7 Distributions; Investments; Deferred Payments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any stock, partnership, membership, or other ownership interest or other equity securities provided that Borrower may (i) convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) pay dividends solely in common stock, (iii) repurchase the stock, partnership, membership, or other ownership interest or other equity securities of former employees, officers, directors or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed $200,000 per fiscal year, (iv) make cash payments in lieu of fractional shares upon conversion of convertible securities or upon any stock split or consolidation, in amount not to exceed $50,000 in the aggregate; and (v) pay any dividends or make any distribution or payment or redeem, retire or purchase any stock, partnership, membership, or other ownership interest or other equity securities with the identifiable cash proceeds of the Series E Equity Financing (excluding Disqualified Stock), in each case under this clause (v) on or before February 28, 2026 in accordance with the sources and uses delivered to the Lenders prior to the Effective Date; (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so.; or (c) make earn-out payments, payments in respect of seller debt or holdbacks, or deferred purchase price payments in connection with a Permitted Acquisition unless (i) no Event of Default shall have occurred and be continuing or would result from such payment, (ii) Borrower shall be in compliance with Section 5.8 immediately after giving pro forma effect to such payment, and (iii) such payment shall be permitted by any applicable subordination agreement, if any.
6.8 Transactions with Affiliates. Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower, except for (i) transactions that are in the ordinary course of Borrower’s business, upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arm’s length transaction with a non-affiliated Person, (ii) Subordinated Debt or equity investments (not prohibited by Section 6.2 and excluding equity investments in Disqualified Stock) by Borrower’s existing investors, (iii) reasonable and customary compensation arrangements as approved by the Board or relevant board of directors, board of managers or equivalent governing body; and (iv) transactions of the type described in and permitted to be between Affiliates under Section 6.7 of this Agreement.
6.9 Subordinated Debt. Except as expressly permitted under the terms of the subordination, intercreditor, or other similar agreement to which any Subordinated Debt is subject: (a) make or permit any payment on such Subordinated Debt; or (b) amend any provision in any document relating to such Subordinated Debt which would increase the amount thereof, provide for earlier or greater principal, interest, or other payments thereon, or adversely affect the subordination thereof to Obligations owed to Bank.
6.10 Compliance. (a) Become an “investment company” or a company controlled by an “investment company”, under the Investment Company Act of 1940, as amended, or undertake as one of its important activities extending credit to purchase or carry margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System), or use the proceeds of any Credit Extension for that purpose; (b)(i) fail to meet the minimum funding requirements of ERISA, (ii) permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur, (iii) fail to comply with the Federal Fair Labor Standards Act or (iv) violate any other law or regulation, if the foregoing subclauses (i) through (iv), individually or in the aggregate, could reasonably be expected to have a material adverse effect on Borrower’s business or operations, or permit any of its Subsidiaries to do so; or (c) withdraw or
permit any Subsidiary to withdraw from participation in, permit partial or complete termination of, or permit the occurrence of any other event with respect to, any present pension, profit sharing and deferred compensation plan which could reasonably be expected to result in any liability of Borrower, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.
6.11 Amendments to Acquisition Documentation. (a) Amend, supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and conditions of the indemnities and licenses furnished to Borrower or its Subsidiaries pursuant to the Acquisition Documentation such that after giving effect thereto such indemnities or licenses shall be materially less favorable to the interests of Borrower, any Guarantor or Bank with respect thereto; (b) otherwise amend, supplement or otherwise modify the terms and conditions of the Acquisition Documentation or any such other documents except for any such amendment, supplement or modification that could not reasonably be expected to have a Material Adverse Change; or (c) fail to enforce, in a commercially reasonable manner, the material rights of Borrower or any Guarantor (including rights to indemnification) under the Acquisition Documentation.
6.12 Digital Assets. Own, hold, acquire, mine, or make any direct investment in any Digital Asset or indirect investment designed to give investors exposure to Digital Assets or the performance thereof, nor shall Borrower permit any of its Subsidiaries to do so.
7 EVENTS OF DEFAULT
Any one of the following shall constitute an event of default (an “Event of Default”) under this Agreement:
7.1 Payment Default. Borrower fails to (a) make any payment of principal or interest on any Credit Extension on its due date, or (b) pay any other Obligations within three (3) Business Days after such Obligations are due and payable (which three (3) Business Day cure period shall not apply to payments due on the Term Loan Maturity Date). During the cure period, the failure to make or pay any payment specified under clause (b) hereunder is not an Event of Default (but no Credit Extension will be made during the cure period);
7.2 Covenant Default.
(a) Borrower fails or neglects to perform any obligation in Section 5 (other than Sections 5.2 (Government Compliance), clauses (c), (g), (n)-(q), and (s) of 5.3 (Financial Statements, Reports 5.10 (Litigation Cooperation), 5.12 (Inventory; Returns) and 5.13 (Further Assurances)) or violates any covenant in Section 6; or
(b) Borrower fails or neglects to perform, keep, or observe any other term, provision, condition, covenant or agreement contained in this Agreement or any Loan Documents, and as to any default (other than those specified in this Section 7) under such other term, provision, condition, covenant or agreement that can be cured, has failed to cure the default within ten (10) days after the occurrence thereof; provided, however, that if the default cannot by its nature be cured within the ten (10) day period or cannot after diligent attempts by Borrower be cured within such ten (10) day period, and such default is likely to be cured within a reasonable time, then Borrower shall have an additional period (which shall not in any case exceed 30 days) to attempt to cure such default, and within such reasonable time period the failure to cure the default shall not be deemed an Event of Default (but no Credit Extensions shall be made during such cure period). Cure periods provided under this section shall not apply, among other things, to financial covenants or any other covenants that are required to be satisfied, completed or tested by a date certain or any covenants set forth in clause (a) above;
7.3 Material Adverse Change. A Material Adverse Change occurs;
7.4 Attachment; Levy; Restraint on Business.
(a) (i) The service of process seeking to attach, by trustee or similar process, any funds of Borrower or any Subsidiary in excess of $200,000, or (ii) a notice of lien or levy is filed against any of Borrower’s or any of its Subsidiaries’ assets by any Governmental Authority, and the same under subclauses (i) and (ii) hereof are not, within ten (10) days after the occurrence thereof, discharged or stayed (whether through the posting of a bond or otherwise); provided, however, no Credit Extensions shall be made during any ten (10) day cure period; or
(b) (i) any material portion of Borrower’s or any of its Subsidiaries’ assets is attached, seized, levied on, or comes into possession of a trustee or receiver, or (ii) any court order enjoins, restrains, or prevents Borrower or any of its Subsidiaries from conducting all or any material part of its business;
7.5 Insolvency. (a) Borrower or any of its Subsidiaries is unable to pay its debts (including trade debts) as they become due or otherwise becomes insolvent; (b) Borrower or any of its Subsidiaries begins an Insolvency Proceeding; or (c) an Insolvency Proceeding is begun against Borrower or any of its Subsidiaries and is not dismissed or stayed within 45 days (but no Credit Extensions shall be made while any of the conditions described in clause (a) exist or until any Insolvency Proceeding is dismissed);
7.6 Other Agreements. There is, under any agreement to which Borrower, any of Borrower’s Subsidiaries, or any Guarantor is a party with a third party or parties, (a) any default resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount individually or in the aggregate in excess of $500,000; or (b) any breach or default by Borrower, any of Borrower’s Subsidiaries, or any Guarantor, the result of which could reasonably be expected to have a material adverse effect on Borrower’s, any of Borrower’s Subsidiaries’, or any Guarantor’s business or operations; provided, however, that the Event of Default under this Section 7.6 caused by the occurrence of a breach or default under such other agreement shall be cured or waived for purposes of this Agreement upon Bank receiving written notice from the party asserting such breach or default of such cure or waiver of the breach or default under such other agreement, if at the time of such cure or waiver under such other agreement (x) Bank has not declared an Event of Default under this Agreement and/or exercised any rights with respect thereto; (y) any such cure or waiver does not result in an Event of Default under any other provision of this Agreement or any Loan Document; and (z) in connection with any such cure or waiver under such other agreement, the terms of any agreement with such third party are not modified or amended in any manner which could in the commercially reasonable judgment of Bank be materially less advantageous to Borrower or any Guarantor;
7.7 Judgments; Penalties. One or more fines, penalties or final judgments, orders or decrees for the payment of money in an amount, individually or in the aggregate, or litigation or other dispute resolution settlement payments by Borrower or any of its Subsidiaries, of at least $500,000 (not covered by independent third-party insurance as to which liability has been accepted by such insurance carrier) shall be rendered against Borrower or any of its Subsidiaries by any Governmental Authority, and the same are not, within 30 days after the entry, assessment or issuance thereof, discharged, or after execution thereof, or stayed pending appeal, or such judgments are not discharged prior to the expiration of any such stay (provided that no Credit Extensions will be made prior to the discharge, or stay of such fine, penalty, judgment, order or decree);
7.8 Misrepresentations. Borrower or any of its Subsidiaries or any Person acting for Borrower or any of its Subsidiaries makes any representation, warranty, or other statement now or later in this Agreement, any Loan Document or in any writing delivered to Bank in connection with this Agreement or any other Loan Document or to induce Bank to enter this Agreement or any Loan Document, and such representation, warranty, or other statement is incorrect in any material respect when made (it being agreed and acknowledged by Bank that the projections and forecasts provided by Borrower or any of its Subsidiaries in good faith and based upon reasonable assumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results);
7.9 Subordinated Debt. If: (a) any document, instrument, or agreement evidencing any Subordinated Debt shall for any reason be revoked or invalidated or otherwise cease to be in full force and effect (except in accordance with its terms), or any Person (other than Bank) shall be in breach thereof or contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder; (b) a default or event of default (however defined) has occurred under any document, instrument, or agreement evidencing any Subordinated Debt, which default shall not have been cured or waived within any applicable grace period; or (c) the Obligations shall for any reason be subordinated or shall not have the priority contemplated by this Agreement or any applicable subordination or intercreditor agreement;
7.10 Lien Priority. There is a material impairment in the perfection or priority of Bank’s security interest in the Collateral;
7.11 Guaranty. (a) Any guaranty of any Obligations terminates or ceases for any reason to be in full force and effect; (b) any Guarantor does not perform any obligation or covenant under any guaranty of the Obligations; (c) any circumstance described in Sections 7.3, 7.4, 7.5, 7.6, 7.7, or 7.8 of this Agreement occurs with respect to any Guarantor, (d) the death, liquidation, winding up, or termination of existence of any Guarantor; or (e)(i) a material
impairment in the perfection or priority of Bank’s Lien in the collateral provided by Guarantor or in the value of such collateral or (ii) a material adverse change in the general affairs, management, results of operation, condition (financial or otherwise) or the prospect of repayment of the Obligations occurs with respect to any Guarantor; or
7.12 Governmental Approvals. Any material Governmental Approval shall have been (a) revoked, rescinded, suspended, modified in a materially adverse manner or not renewed in the ordinary course for a full term or (b) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of such Governmental Approval or that could reasonably be expected to result in the Governmental Authority taking any of the actions described in clause (a) above, and such decision or such revocation, rescission, suspension, modification or non-renewal (i) causes, or could reasonably be expected to cause, a Material Adverse Change, or (ii) materially adversely affects the legal qualifications of Borrower or any of its Subsidiaries to hold such Governmental Approval in any applicable jurisdiction and such revocation, rescission, suspension, modification or non-renewal could reasonably be expected to materially adversely affect the status of or legal qualifications of Borrower or any of its Subsidiaries to hold any Governmental Approval in any other jurisdiction.
7.13 Mezzanine Loan Agreement. The occurrence of an Event of Default (as defined in the Mezzanine Loan Agreement (or any successor or replacement definition)) under the Mezzanine Loan Agreement.
8 BANK’S RIGHTS AND REMEDIES
8.1 Rights and Remedies. Upon the occurrence and during the continuance of an Event of Default, Bank may, without notice or demand, do any or all of the following:
(a) declare all Obligations immediately due and payable (but if an Event of Default described in Section 7.5 occurs all Obligations are immediately due and payable without any action by Bank);
(b) stop advancing money or extending credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Bank;
(c) demand that Borrower (i) deposit cash with Bank in an amount equal to at least (A) 105.0% of the aggregate face amount of any Letters of Credit denominated in Dollars remaining undrawn, and (B) 110.0% of the Dollar Equivalent of the aggregate face amount of any Letters of Credit denominated in a Foreign Currency remaining undrawn (plus, in each case, all interest, fees, and costs due or estimated by Bank in its commercially reasonable discretion to become due in connection therewith), to secure all of the Obligations relating to such Letters of Credit, as collateral security for the repayment of any future drawings under such Letters of Credit, and Borrower shall forthwith deposit and pay such amounts, and (ii) pay in advance all letter of credit fees scheduled to be paid or payable over the remaining term of any Letters of Credit;
(d) terminate any FX Contracts (it being understood and agreed that (i) Bank is not obligated to deliver the currency which Borrower has contracted to receive under any FX Contract, and Bank may cover its exposure for any FX Contracts by purchasing or selling currency in the interbank market as Bank deems appropriate; (ii) Borrower shall be liable for all losses, damages, costs, margin obligations and expenses incurred by Bank arising from Borrower’s failure to satisfy its obligations under any FX Contract or the execution of any FX Contract; and (iii) Bank shall not be liable to Borrower for any gain in value of a FX Contract that Bank may obtain in covering Borrower’s breach);
(e) verify the amount of, demand payment of and performance under, and collect any Accounts and General Intangibles, settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Bank considers advisable, and notify any Person owing Borrower money of Bank’s security interest in such funds;
(f) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Borrower shall assemble the Collateral if Bank requests and make it available as Bank designates. Bank may enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Borrower grants Bank a license to enter and occupy any of its premises, without charge, to exercise any of Bank’s rights or remedies;
(g) apply to the Obligations any (i) balances and deposits of Borrower it holds, or (ii) amount held by Bank owing to or for the credit or the account of Borrower;
(h) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell the Collateral. For use solely upon the occurrence and during the continuation of an Event of Default, Bank is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, Borrower’s labels, Patents, Copyrights, mask works, rights of use of any name, trade secrets, trade names, Trademarks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Bank’s exercise of its rights under this Section 8.1, Borrower’s rights under all licenses and all franchise agreements inure to Bank’s benefit;
(i) place a “hold” on any account maintained with Bank and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(j) demand and receive possession of Borrower’s Books; and
(k) exercise all rights and remedies available to Bank under the Loan Documents or at law or equity, including all remedies provided under the Code or any Applicable Law (including disposal of the Collateral pursuant to the terms thereof).
8.2 Power of Attorney. Borrower hereby irrevocably appoints Bank as its true and lawful attorney-in-fact, (a) exercisable upon the occurrence and during the continuance of an Event of Default, to: (i) endorse Borrower’s name on any checks, payment instruments, or other forms of payment or security; (ii) sign Borrower’s name on any invoice or bill of lading for any Account or drafts against Account Debtors; (iii) demand, collect, sue, and give releases to any Account Debtor for monies due, settle and adjust disputes and claims about the Accounts directly with Account Debtors, and compromise, prosecute, or defend any action, claim, case, or proceeding about any Collateral (including filing a claim or voting a claim in any bankruptcy case in Bank’s or Borrower’s name, as Bank chooses); (iv) make, settle, and adjust all claims under Borrower’s insurance policies; (v) pay, contest or settle any Lien, charge, encumbrance, security interest, or other claim in or to the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge the same; and (vi) transfer the Collateral into the name of Bank or a third party as the Code permits; and (b) regardless of whether an Event of Default has occurred, to: (i) sign Borrower’s name on and submit the documentation required under the Federal Assignment of Claims Act of 1940, as amended, to the government of the United States seeking approval of the novation or assignment of each contract relating to Borrower’s Accounts owing from an Account Debtor which is a United States government entity or any department, agency, or instrumentality thereof; and (ii) sign Borrower’s name on any documents necessary to perfect or continue the perfection of Bank’s security interest in the Collateral. Bank’s foregoing appointment as Borrower’s attorney in fact, and all of Bank’s rights and powers, coupled with an interest, are irrevocable until such time as all Obligations (other than inchoate indemnity obligations, and any other obligations which, by their terms, are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3 of this Agreement) have been satisfied in full, Bank is under no further obligation to make Credit Extensions and the Loan Documents have been terminated. Bank shall not incur any liability in connection with or arising from the exercise of such power of attorney and shall have no obligation to exercise any of the foregoing rights and remedies.
8.3 Protective Payments. If Borrower fails to obtain the insurance called for by Section 5.6 or fails to pay any premium thereon or fails to pay any other amount which Borrower is obligated to pay under this Agreement or any other Loan Document or which may be required to preserve the Collateral, Bank may obtain such insurance or make such payment, and all amounts so paid by Bank are Bank Expenses and immediately due and payable, bearing interest at the then highest rate applicable to the Obligations, and secured by the Collateral. Bank will make reasonable efforts to provide Borrower with notice of Bank obtaining such insurance at the time it is obtained or within a reasonable time thereafter. No payments by Bank are deemed an agreement to make similar payments in the future or Bank’s waiver of any Event of Default.
8.4 Application of Payments and Proceeds. If an Event of Default has occurred and is continuing, Bank may apply any funds in its possession, whether from Borrower account balances, payments, proceeds realized as the result of any collection of Accounts or other disposition of the Collateral, or otherwise, to the Obligations in such order as Bank shall determine in its sole discretion. Any surplus shall be paid to Borrower or other Persons legally entitled thereto; Borrower shall remain liable to Bank for any deficiency. If Bank, in its commercially
reasonable discretion, directly or indirectly, enters into a deferred payment or other credit transaction with any purchaser at any sale of Collateral, Bank shall have the option, exercisable at any time, of either reducing the Obligations by the principal amount of the purchase price or deferring the reduction of the Obligations until the actual receipt by Bank of cash therefor.
8.5 Bank’s Liability for Collateral. Bank’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession or under its control, under Section 9-207 of the Code or otherwise, shall be to deal with it in the same manner as Bank deals with its own property consisting of similar instruments or interests. Borrower bears all risk of loss, damage or destruction of the Collateral.
8.6 No Waiver; Remedies Cumulative. Bank’s failure, at any time or times, to require strict performance by Borrower of any provision of this Agreement or any other Loan Document shall not waive, affect, or diminish any right of Bank thereafter to demand strict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by the party granting the waiver and then is only effective for the specific instance and purpose for which it is given. Bank’s rights and remedies under this Agreement and the other Loan Documents are cumulative. Bank has all rights and remedies provided under the Code, by law, or in equity. Bank’s exercise of one right or remedy is not an election and shall not preclude Bank from exercising any other remedy under this Agreement or other remedy available at law or in equity, and Bank’s waiver of any Event of Default is not a continuing waiver. Bank’s delay in exercising any remedy is not a waiver, election, or acquiescence.
8.7 Demand Waiver. Borrower waives demand, notice of default or dishonor, notice of payment and nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper, and guarantees held by Bank on which Borrower is liable.
8.8 Borrower Liability. Any Borrower may, acting singly, request Credit Extensions hereunder. Each Borrower hereby appoints each other as agent for the other for all purposes hereunder, including with respect to requesting Credit Extensions hereunder. Each Borrower hereunder shall be liable for the Credit Extensions and Obligations as set forth on Schedule I hereto. Each Borrower waives (a) any suretyship defenses available to it under the Code or any other Applicable Law, and (b) any right to require Bank to: (i) proceed against any Borrower or any other person; (ii) proceed against or exhaust any security; or (iii) pursue any other remedy. Bank may exercise or not exercise any right or remedy it has against any Borrower or any security it holds (including the right to foreclose by judicial or non-judicial sale) without affecting any Borrower’s liability. Notwithstanding any other provision of this Agreement or other related document, each Borrower irrevocably waives all rights that it may have at law or in equity (including, without limitation, any law subrogating Borrower to the rights of Bank under this Agreement) to seek contribution, indemnification or any other form of reimbursement from any other Borrower, or any other Person now or hereafter primarily or secondarily liable for any of the Obligations, for any payment made by Borrower with respect to the Obligations in connection with this Agreement or otherwise and all rights that it might have to benefit from, or to participate in, any security for the Obligations as a result of any payment made by Borrower with respect to the Obligations in connection with this Agreement or otherwise. Any agreement providing for indemnification, reimbursement or any other arrangement prohibited under this Section 8.8 shall be null and void. If any payment is made to a Borrower in contravention of this Section 8.8, such Borrower shall hold such payment in trust for Bank and such payment shall be promptly delivered to Bank for application to the Obligations, whether matured or unmatured.
9 NOTICES
All notices, consents, requests, approvals, demands, or other communication by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by electronic mail; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or email address indicated below; provided that, for clause (b), if such notice, consent, request, approval, demand or other communication is not sent during the normal business hours of the recipient, it shall be deemed to have been sent at the opening of business on the next Business Day of the recipient. Bank or Borrower may change its mailing or electronic mail address by giving the other party written notice thereof in accordance with the terms of this Section 9.
| | | | | | | | | | | | | | | | | | | | |
| If to Borrower: | | Hawkeye 360, Inc. | | |
| | | | | | |
| | | 196 Van Buren Street, Suite 450 | | |
| | | | | | |
| | | Herndon, Virginia 20170 | | |
| | | | | | |
| | | Attn: | John Serafini, Chief Executive Officer, and Chief Legal Officer | | |
| | | | | | |
| | | Email: | [ ] | | |
| | | | | | |
| with a copy to (which | | | | | |
| shall not constitute notice): | | Cooley LLP | | |
| | | | | | |
| | | 110 N. Wacker Drive | | |
| | | | | | |
| | | Chicago, IL 60606-1511 | | |
| | | | | | |
| | | Attn: Addison Pierce | | |
| | | | | | |
| | | Email: [ ] | | |
| | | | | | |
| | | | | | |
| | | | | | |
| If to Bank: | | Silicon Valley Bank, a division of First-Citizens Bank & Trust Company | |
| | | | | | |
| | | | | | |
| | | 11 W. 42nd Street | | |
| | | | | | |
| | | New York, New York 10036 | | |
| | | | | | |
| | | Attn: | Tyler Dietrich | | |
| | | | | | |
| | | Email: | [ ] | | |
| | | | | | |
| with a copy to (which | | | | | |
| shall not constitute notice): | | Morrison & Foerster LLP | | |
| | | | | | |
| | | 200 Clarendon Street | | |
| | | | | | |
| | | Boston, Massachusetts 02116 | | |
| | | | | | |
| | | Attn: | Charles Stavros | | |
| | | | | | |
| | | Email: | [ ] | | |
10 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
Except as otherwise expressly provided in any of the Loan Documents, New York law governs the Loan Documents without regard to principles of conflicts of law that would require the application of the laws of another jurisdiction. Borrower and Bank each irrevocably and unconditionally submit to the exclusive jurisdiction of the State and Federal courts in the borough of Manhattan in New York, New York; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Bank from bringing suit or taking other legal action in any other jurisdiction with respect to the Loan Documents or to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Bank. Borrower expressly, irrevocably and unconditionally submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and Borrower hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby irrevocably and unconditionally consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Borrower hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to Borrower at the address set forth in, or subsequently provided by Borrower in accordance with, Section 9 of this Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower’s actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER AND BANK EACH WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT. EACH PARTY HERETO HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
This Section 10 shall survive the termination of this Agreement and the repayment of all Obligations.
11 GENERAL PROVISIONS
11.1 Termination Prior to Maturity Date; Survival. All covenants, representations and warranties made in this Agreement shall continue in full force until this Agreement has terminated pursuant to its terms and all Obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3 of this Agreement) have been satisfied. So long as Borrower has satisfied the Obligations (other than inchoate indemnity obligations, and any other obligations which, by their terms, are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.1 of this Agreement), this Agreement may be terminated prior to the Term Loan Maturity Date by Borrower, effective three (3) Business Days after written notice of termination is given to Bank. Those obligations that are expressly specified in this Agreement as surviving this Agreement’s termination shall continue to survive notwithstanding this Agreement’s termination.
11.2 Successors and Assigns. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. Borrower may not assign or transfer this Agreement or any rights or obligations under it without Bank’s prior written consent (which may be granted or withheld in Bank’s sole discretion) and any other attempted assignment or transfer by Borrower shall be null and void. Bank has the right, without the consent of or notice to Borrower, to sell, transfer, assign, negotiate, or grant participation in all or any part of, or any interest in, Bank’s obligations, rights, and benefits under this Agreement and the other Loan Documents (other than the Warrant, as to which assignment, transfer and other such actions are governed by the terms thereof). Notwithstanding the foregoing, so long as no Event of Default shall have occurred and is continuing, Bank shall not assign its interest in the Loan Documents (other than the Warrant, as to which assignment, transfer and other such actions are governed by the terms thereof) to any Person who in the reasonable estimation of Bank is (a) a direct competitor of Borrower, whether as an operating company or direct or indirect parent with voting control over such operating company, or (b) a vulture fund or distressed debt fund.
11.3 Indemnification; Damage Waiver, etc.
(a) General Indemnification. Borrower shall indemnify, defend and hold Bank and its Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of Bank and its Affiliates (each, an “Indemnified Person”) harmless against: all losses, claims, damages, liabilities and related documented out-of-pocket expenses (including Bank Expenses and the reasonable and documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnified Person) (collectively, “Claims”) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Credit Extension or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of hazardous materials on or from any property owned or operated by Borrower or any of its Subsidiaries, or any environmental liability related in any way to Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower, and regardless of whether any Indemnified Person is a party thereto; provided that such indemnity shall not, as to any Indemnified Person, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified Person. All amounts due under this Section 11.3 shall be payable promptly after demand therefor. This Section 11.3(a) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(b) Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, Borrower shall not assert, and hereby waives, any claim against Bank and its Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of Bank and its Affiliates (each, a “Protected Person”) , on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) or any loss of profits arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Credit Extension, or the use of the proceeds thereof. No Protected Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
This Section 11.3 shall survive the termination of this Agreement until all statutes of limitation with respect to the Claims, losses, and expenses for which indemnity is given shall have run.
11.4 Time of Essence. Time is of the essence for the performance of all Obligations in this Agreement.
11.5 Severability of Provisions. Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision.
11.6 Amendments in Writing; Waiver; Integration. No purported amendment or modification of this Agreement or any other Loan Document, or waiver, discharge or termination of any obligation under this Agreement or any other Loan Document, shall be effective unless, and only to the extent, expressly set forth in a writing signed by each party hereto; provided that a Loan Document may otherwise be amended in accordance with its terms. Without limiting the generality of the foregoing, no oral promise or statement, nor any action, inaction, delay, failure to require performance or course of conduct shall operate as, or evidence, an amendment, supplement or waiver or have any other effect on any Loan Document. Any waiver granted shall be limited to the specific circumstance expressly described in it, and shall not apply to any subsequent or other circumstance, whether similar or dissimilar, or give rise to, or evidence, any obligation or commitment to grant any further waiver. The Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of the Loan Documents merge into the Loan Documents.
11.7 Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one Agreement. Delivery of an executed signature page of this Agreement by electronic mail transmission shall be effective as delivery of a manually executed counterpart hereof.
11.8 Confidentiality. Bank agrees to maintain the confidentiality of Information (as defined below), except that Information may be disclosed (a) to Bank’s Subsidiaries and Affiliates and their respective employees,
directors, agents, attorneys, accountants and other professional advisors (collectively, “Representatives” and, together with Bank, collectively, “Bank Entities”); (b) to prospective transferees, assignees, credit providers or purchasers of Bank’s interests under or in connection with this Agreement and their Representatives (provided, however, that any prospective transferee, assignee, credit provider, purchaser or their Representatives shall have entered into an agreement containing provisions substantially the same as those in this Section); (c) as required by law, regulation, subpoena, or other order; (d) to Bank’s regulators or as otherwise required or requested in connection with Bank’s examination or audit; (e) in connection with the exercise of remedies under the Loan Documents or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; and (f) to third-party service providers of Bank so long as such service providers have executed a confidentiality agreement with Bank with terms no less restrictive than those contained herein. “Information” means all information received from Borrower regarding Borrower or its business, in each case other than information that is either: (i) in the public domain or in Bank’s possession when disclosed to Bank, or becomes part of the public domain (other than as a result of its disclosure by Bank in violation of this Agreement) after disclosure to Bank; or (ii) disclosed to Bank by a third party, if Bank does not know that the third party is prohibited from disclosing the information.
11.9 Electronic Execution of Documents. The words “execution,” “signed,” “signature” and words of like import in any Loan Document shall be deemed to include electronic signatures, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use of a paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any Applicable Law, including, without limitation, any state law based on the Uniform Electronic Transactions Act.
11.10 Right of Setoff. Borrower hereby grants to Bank a Lien and a right of setoff as security for all Obligations to Bank, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Bank or any entity under the control of Bank (including a subsidiary of Bank) or in transit to any of them, and other obligations owing to Bank or any such entity. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, Bank may setoff the same or any part thereof and apply the same to any liability or Obligation of Borrower even though unmatured and regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
11.11 Captions and Section References. The headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. Unless indicated otherwise, section references herein are to sections of this Agreement.
11.12 Construction of Agreement. The parties hereto mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the parties caused the uncertainty to exist.
11.13 Relationship. The relationship of the parties to this Agreement is determined solely by the provisions of this Agreement. The parties do not intend to create any agency, partnership, joint venture, trust, fiduciary or other relationship with duties or incidents different from those of parties to an arm’s-length contract.
11.14 Third Parties. Nothing in this Agreement, whether express or implied, is intended to: (a) confer any benefits, rights or remedies under or by reason of this Agreement on any Persons other than the express parties to it and their respective permitted successors and assigns; (b) relieve or discharge the obligation or liability of any Person not an express party to this Agreement; or (c) give any Person not an express party to this Agreement any right of subrogation or action against any party to this Agreement.
11.15 Anti-Terrorism Law. Bank hereby notifies Borrower that, pursuant to the requirements of Anti-Terrorism Law, Bank may be required to obtain, verify and record information that identifies Borrower, which information may include the name and address of Borrower and other information that will allow Bank to identify Borrower in accordance with Anti-Terrorism Law. Borrower hereby agrees to take any action necessary to enable Bank to comply with the requirements of Anti-Terrorism Law.
11.16 Online Banking Platform. If Borrower uses Bank’s online banking platform in connection with this Agreement, Borrower agrees to be bound by and comply with the applicable online banking terms and conditions and related online banking documents as in effect from time to time. The online banking terms and conditions may be provided as hyperlinks or “click-through” agreements on the website, which may be updated from time to time. Continued use of Bank’s online banking platform shall constitute Borrower’s acceptance of the applicable terms and conditions. Borrower is solely responsible for any of Borrower’s employees’ or agents’ compliance with the online banking terms and conditions and shall ensure that (a) all persons utilizing Bank’s online banking platform in connection with this Agreement, including the Administrator and other users added by them, have all relevant authority to perform the specified roles and functions on Borrower’s behalf, and (b) any use of Bank’s online banking platform in connection with this Agreement complies with the terms of this Agreement. Bank shall be entitled to assume the authenticity, accuracy and completeness of any information, instruction or request for a Credit Extension submitted via Bank’s online banking platform and to further assume that any submissions or requests made via Bank’s online banking platform have been duly authorized by an Administrator and are otherwise in accordance with the terms of this Agreement.
11.17 Effect of Amendment and Restatement. This Agreement is intended to and does completely amend and restate, without novation, the Prior Agreement, which shall be terminated on the Effective Date of this Agreement. Notwithstanding the foregoing, all security interests granted by Borrower under the Prior Agreement are hereby confirmed and ratified and shall continue to secure all Obligations under this Agreement. Without limiting the foregoing, any warrant(s) to purchase stock and all other loan documents issued in connection with the Prior Agreement (to the extent not yet exercised, terminated or amended and restated in connection with this Agreement) shall remain in full force and effect.
12 ACCOUNTING TERMS AND OTHER DEFINITIONS
12.1 Accounting and Other Terms.
(a) Accounting terms not defined in this Agreement shall be construed following GAAP. Calculations and determinations must be made following GAAP (except for with respect to unaudited financial statements for the absence of footnotes and subject to year-end audit adjustments), provided that if at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or Bank shall so request, Borrower and Bank shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided, further, that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide Bank financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
(b) As used in the Loan Documents: (i) the words “shall” or “will” are mandatory, the word “may” is permissive, the word “or” is not exclusive, the words “includes” and “including” are not limiting, the singular includes the plural, and numbers denoting amounts that are set off in brackets are negative; (ii) the term “continuing” in the context of an Event of Default means that the Event of Default has not been remedied (if capable of being remedied) or waived; and (iii) whenever a representation or warranty is made to Borrower’s knowledge or awareness, to the “best of” Borrower’s knowledge, or with a similar qualification, knowledge or awareness means the actual knowledge, after reasonable investigation, of any Responsible Officer.
12.2 Definitions. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in this Section 12.2. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. As used in this Agreement, the following capitalized terms have the following meanings:
“Account” is, as to any Person, any “account” of such Person as “account” is defined in the Code with such additions to such term as may hereafter be made, and includes, without limitation, all accounts receivable and other sums owing to such Person.
“Account Debtor” is any “account debtor” as defined in the Code with such additions to such term as may hereafter be made.
“Acquisition” is the Merger (as defined in the Acquisition Agreement (as in effect on the Effective Date).
“Acquisition Agreement” is that certain Agreement and Plan of Merger dated as of the Effective Date, by and among Parent; Forrestal Merger Sub, Inc., a Texas corporation and wholly owned subsidiary of Parent; ISA; and David Stevens, as the Shareholder Representative.
“Acquisition Documentation” is, collectively, the Acquisition Agreement and all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof or entered into in connection therewith.
“Administrator” is an individual that is named:
(a) as an “Administrator” or similar role in the online banking enrollment form or related documents completed by Borrower with the authority to determine who will be authorized to use Bank’s online banking platform on behalf of Borrower in connection with this Agreement; and
(b) as an Authorized Signer of Borrower in an approval by the Board.
“Affiliate” is, with respect to any Person, each other Person that owns or controls directly or indirectly the Person, any Person that controls or is controlled by or is under common control with the Person, and each of that Person’s senior executive officers, directors, partners and, for any Person that is a limited liability company, that Person’s managers and members.
“Agreement” is defined in the preamble hereof.
“Anti-Terrorism Law” means any law relating to terrorism or money-laundering, including Executive Order No. 13224 and the USA Patriot Act.
“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators, including the Corporate Transparency Act.
“Authorized Signer” means any individual listed in Borrower’s Borrowing Resolution who is authorized to execute the Loan Documents, including making (and executing if applicable) any Credit Extension request, on behalf of Borrower.
“Bank” is defined in the preamble hereof.
“Bank Entities” is defined in Section 11.8.
“Bank Expenses” are all documented audit fees, costs and reasonable and documented, out-of-pocket expenses (including reasonable, out-of-pocket and documented attorneys’ fees and expenses) for preparing, amending, negotiating, administering, defending and enforcing the Loan Documents (including, without limitation, those incurred in connection with appeals or Insolvency Proceedings) or otherwise incurred in connection with the Loan Documents.
“Bank Services” are any products, credit services, and/or financial accommodations previously, now, or hereafter provided to Borrower or any of its Subsidiaries by Bank or any Bank Affiliate, including, without limitation, any letters of credit, cash management services (including, without limitation, merchant services, direct deposit of payroll, business credit cards, and check cashing services), interest rate swap arrangements, and foreign exchange services as any such products or services may be identified in Bank’s various agreements related thereto (each, a “Bank Services Agreement”).
“Bank Services Agreement” is defined in the definition of Bank Services.
“Board” is Borrower’s board of directors or equivalent governing body.
“Borrower” is set forth in the first paragraph of this Agreement.
“Borrower’s Books” are all Borrower’s books and records including ledgers, federal and state tax returns, records regarding Borrower’s assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information.
“Borrowing Resolutions” are, with respect to any Person, those resolutions adopted by such Person’s board of directors (and, if required under the terms of such Person’s Operating Documents, stockholders) and delivered by such Person to Bank approving the Loan Documents to which such Person is a party and the transactions contemplated thereby, together with a certificate executed by its secretary on behalf of such Person certifying (a) such Person has the authority to execute, deliver, and perform its obligations under each of the Loan Documents to which it is a party, (b) that set forth as a part of or attached as an exhibit to such certificate is a true, correct, and complete copy of the resolutions then in full force and effect authorizing and ratifying the execution, delivery, and performance by such Person of the Loan Documents to which it is a party, (c) the name(s) of the Person(s) authorized to execute the Loan Documents, including making (and executing if applicable) any Credit Extension request, on behalf of such Person, together with a sample of the true signature(s) of such Person(s), and (d) that Bank may conclusively rely on such certificate unless and until such Person shall have delivered to Bank a further certificate canceling or amending such prior certificate.
“Business Day” is a day other than a Saturday, Sunday or other day on which commercial banks in the State of California are authorized or required by law to close.
“Cash Equivalents” are (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof having maturities of not more than one (1) year from the date of acquisition; (b) commercial paper maturing no more than one (1) year after its creation and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc.; (c) Bank’s certificates of deposit issued maturing no more than one (1) year after issue; and (d) money market funds at least 95.0% of the assets of which constitute Cash Equivalents of the kinds described in clauses (a) through (c) of this definition.
“Change in Control” means (a) at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 49.0% or more of the ordinary voting power for the election of directors, partners, managers and members, as applicable, of Borrower (determined on a fully diluted basis) other than by the sale of Borrower’s equity securities in a public offering; (b) during any period of 12 consecutive months, a majority of the members of the Board of Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or (c) at any time, Borrower shall cease to own and control, of record and beneficially, directly or indirectly, 100.0% of each class of outstanding stock, partnership, membership, or other ownership interest or other equity securities of each Subsidiary of Borrower free and clear of all Liens (except Permitted Liens).
“Change in Law” means the occurrence, after the Effective Date, of: (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in Applicable Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Claims” is defined in Section 11.3.
“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of New York; provided, that, to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such
term contained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, Bank’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.
“Collateral” consists of all of Borrower’s right, title and interest in and to the following personal property:
(a) all goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, Intellectual Property, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, securities accounts, securities entitlements and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located;
(b) all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing; and
(c) Notwithstanding the foregoing, the Collateral does not include any property to the extent that such grant of security interest is prohibited by any Applicable Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Applicable Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity; provided, however, that such security interest shall attach immediately at such time as such Applicable Law is not effective or applicable, or such prohibition, breach, default or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences.
“Collateral Account” is any Deposit Account, Securities Account, or Commodity Account.
“Commodity Account” is any “commodity account” as defined in the Code with such additions to such term as may hereafter be made.
“Compliance Statement” is that certain statement in the form attached hereto as Exhibit A.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Adjusted EBITDA” shall mean (a) Net Income, plus (b) to the extent deducted in the calculation of Net Income (i) Interest Expense, (ii) depreciation expense and amortization expense, and (iii) income tax expense.
“Consolidated Revenue Leverage Ratio” means, as at the last day of any period, the ratio of (a) the sum of (i) the outstanding Term Loan Advances under this Agreement plus (ii) the outstanding Term Loan Advances (as defined in the Mezzanine Loan Agreement (or any successor or replacement definition)), to (b) Parent’s consolidated revenue under GAAP measured on a trailing twelve-month basis; provided that for purposes of this definition, consolidated revenue for any period shall be determined on a pro forma basis to give effect to any Permitted Acquisitions or any disposition of any business or assets consummated during such period, in each case as if such transaction occurred on the 1st day of such period.
“Contingent Obligation” is, for any Person, any direct or indirect liability of that Person for (a) any direct or indirect guaranty by such Person of any indebtedness, lease, dividend, letter of credit, credit card or other obligation of another, (b) any other obligation endorsed, co-made, discounted or sold with recourse by that Person, or for which
that Person is directly or indirectly liable; (c) any obligations for undrawn letters of credit for the account of that Person; and (d) all obligations from any interest rate, currency or commodity swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not include endorsements in the ordinary course of business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it determined by the Person in good faith; but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.
“Control Agreement” is any control agreement entered into among the depository institution at which Borrower maintains a Deposit Account or the securities intermediary or commodity intermediary at which Borrower maintains a Securities Account or a Commodity Account, Borrower, and Bank pursuant to which Bank obtains control (within the meaning of the Code) over such Deposit Account, Securities Account, or Commodity Account.
“Copyrights” are any and all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret.
“Credit Extension” is any Term Loan Advance or any other extension of credit by Bank for Borrower’s benefit.
“Default” means any event which with notice or passage of time or both, would constitute an Event of Default.
“Default Rate” is defined in Section 1.3(c).
“Deposit Account” is any “deposit account” as defined in the Code with such additions to such term as may hereafter be made.
“Designated Deposit Account” is the deposit account established by Borrower with Bank for purposes of receiving Credit Extensions.
“Digital Assets” means all cryptocurrencies, virtual currencies, coins, tokens and other digital assets. For the avoidance of doubt any references to cash or Cash Equivalents in this Agreement shall be deemed not to include Digital Assets.
“Disqualified Stock” is any capital stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the later of the Term Loan Maturity Date under this Agreement and the Term Loan Maturity Date (as defined in the Mezzanine Loan Agreement (or any successor or replacement definition)).
“Division” means, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with the dividing Person either continuing or terminating its existence as part of such division, including, without limitation, as contemplated under Section 18-217 of the Delaware Limited Liability Company Act for limited liability companies formed under Delaware law, Section 17-220 of the Delaware Revised Uniform Limited Partnership Act for limited partnerships formed under Delaware law, or any analogous action taken pursuant to any other Applicable Law with respect to any corporation, limited liability company, partnership or other entity.
“Dollar Equivalent” is, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in a Foreign Currency, the equivalent amount therefor in Dollars as determined by Bank at such time on the basis of the then-prevailing rate of exchange in San Francisco, California, for sales of the Foreign Currency for transfer to the country issuing such Foreign Currency.
“Dollars,” “dollars” or use of the sign “$” means only lawful money of the United States and not any other currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted into lawful money of the United States.
“Effective Date” is set forth on Schedule I hereto.
“Environmental Laws” means any Applicable Law (including any permits, concessions, grants, franchises, licenses, agreements or governmental restrictions) relating to pollution or the protection of health, safety or the environment or the release of any hazardous materials into the environment (including those related to hazardous materials, air emissions, discharges to waste or public systems and health and safety matters).
“Equipment” is all “equipment” as defined in the Code with such additions to such term as may hereafter be made, and includes without limitation all machinery, fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.
“ERISA” is the Employee Retirement Income Security Act of 1974, as amended, and its regulations.
“Event of Default” is defined in Section 7.
“Exchange Act” is the Securities Exchange Act of 1934, as amended.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to Bank or required to be withheld or deducted from a payment to Bank, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of Bank being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Bank with respect to an applicable interest in a Credit Extension pursuant to a law in effect on the date on which (i) Bank acquires such interest in the Credit Extensions or (ii) Bank changes its lending office, except in each case to the extent that, pursuant to Section 1.7, amounts with respect to such Taxes were payable either to Bank’s assignor immediately before Bank became a party hereto or to Bank immediately before it changed its lending office, (c) Taxes attributable to Bank’s failure to comply with Section 1.7(e), and (d) any withholding Taxes imposed under FATCA.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.
“Financial Statement Repository” is (a) Bank’s e-mail address specified in Section 9, or (b) such other means of collecting information approved and designated by Bank after providing notice thereof to Borrower from time to time.
“Foreign Currency” is the lawful money of a country other than the United States.
“Funding Date” is any date on which a Credit Extension is made to or for the account of Borrower which shall be a Business Day.
“FX Contract” is any foreign exchange contract by and between Borrower and Bank under which Borrower commits to purchase from or sell to Bank a specific amount of Foreign Currency at a set price or on a specified date.
“GAAP” is generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other Person as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination.
“General Intangibles” is all “general intangibles” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation, all Intellectual Property, claims, income and other tax refunds, security and other deposits, payment intangibles, contract rights, options to purchase or sell real or personal property, rights in all litigation presently or hereafter pending (whether in contract, tort or
otherwise), insurance policies (including without limitation key man, property damage, and business interruption insurance), payments of insurance and rights to payment of any kind.
“Governmental Approval” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
“Governmental Authority” is any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization.
“Guarantor” is any Person providing a Guaranty in favor of Bank.
“Guaranty” is any guarantee of all or any part of the Obligations, as the same may from time to time be amended, restated, modified or otherwise supplemented.
“Indebtedness” is (a) indebtedness for borrowed money or the deferred price of property or services, such as reimbursement and other obligations for surety bonds, letters of credit and credit cards, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease obligations, (d) Contingent Obligations and (e) other short- and long-term obligations under debt agreements, lines of credit and extensions of credit.
“Indemnified Person” is defined in Section 11.3.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Information” is defined in Section 11.8.
“Insolvency Proceeding” is any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions, extensions generally with its creditors, or proceedings seeking reorganization, arrangement, receivership or other relief.
“Intellectual Property” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following:
(a) its Copyrights, Trademarks and Patents;
(b) any and all trade secrets and trade secret rights, including, without limitation, any rights to unpatented inventions, know-how and operating manuals;
(c) any and all source code;
(d) any and all design rights which may be available to such Person;
(e) any and all claims for damages by way of past, present and future infringement of any of the foregoing, with the right, but not the obligation, to sue for and collect such damages for said use or infringement of the Intellectual Property rights identified above; and
(f) all amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents.
“Interest Expense” means for any fiscal period, interest expense (whether cash or non-cash) determined in accordance with GAAP for the relevant period ending on such date, including, in any event, interest expense with respect to any Credit Extension and other Indebtedness of applicable target and its Subsidiaries, including, without limitation or duplication, all commissions, discounts, or related amortization and other fees and charges with respect
to letters of credit and bankers’ acceptance financing and the net costs associated with interest rate swap, cap, and similar arrangements, and the interest portion of any deferred payment obligation (including leases of all types).
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, and the rules and regulations promulgated thereunder, each as amended or modified from time to time.
“Inventory” is all “inventory” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including without limitation such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.
“Investment” is any beneficial ownership interest in any Person (including stock, partnership, membership, or other ownership interest or other equity securities), and any loan, advance or capital contribution to any Person.
“IP Agreement” is that certain Second Amended and Restated Intellectual Property Security Agreement between Borrower and Bank dated as of the Effective Date, as may be amended, modified or restated from time to time.
“ISA” is INNOVATIVE SIGNAL ANALYSIS INC., a Texas corporation.
“Key Person” is each of Borrower’s Chief Executive Officer, who is John Serafini as of the Effective Date.
“Letter of Credit” is a standby or commercial letter of credit issued by Bank upon request of Borrower based upon an application, guarantee, indemnity, or similar agreement.
“Lien” is a claim, mortgage, deed of trust, levy, attachment charge, pledge, hypothecation, security interest or other encumbrance of any kind, whether voluntarily incurred or arising by operation of law or otherwise against any property.
“Loan Documents” are, collectively, this Agreement and any schedules, exhibits, certificates, notices, and any other documents related to this Agreement, the Perfection Certificate, the Warrant, the Stock Pledge Agreement, the IP Agreement, any Control Agreement, any Bank Services Agreement, any subordination agreement, any note, or notes or guaranties executed by Borrower or any Guarantor, landlord waivers and consents, bailee waivers and consents, and any other present or future agreement by Borrower and/or any Guarantor with or for the benefit of Bank in connection with this Agreement or Bank Services, all as amended, restated, or otherwise modified in accordance with the terms thereof from time to time.
“Material Adverse Change” is (a) a material impairment in the perfection or priority of Bank’s Lien in the Collateral or in the value of such Collateral; (b) a material adverse change in the business, operations, or condition (financial or otherwise) of Borrower; or (c) a material impairment of the prospect of repayment of any portion of the Obligations.
“Mezzanine Loan Agreement” means that certain Mezzanine Loan and Security Agreement by and among Bank in its capacity as administrative agent and collateral agent, the Lenders (as such term is defined therein), and Borrower dated as of the Effective Date, as may be amended, modified, supplemented and/or restated from time to time in accordance with the Subordination Agreement.
“Net Income” means, as calculated on a consolidated basis for the applicable target and its Subsidiaries for any period as at any date of determination, the net profit (or loss), after provision for taxes, of the applicable target and its Subsidiaries for such period taken as a single accounting period.
“Obligations” are Borrower’s obligations to pay when due any debts, principal, interest, fees, Bank Expenses, and other amounts Borrower owes Bank or its Affiliates now or later, whether under this Agreement, the other Loan Documents (other than the Warrant), or otherwise, including, without limitation, all obligations relating to Bank Services and interest accruing after Insolvency Proceedings begin and debts, liabilities, or obligations of Borrower assigned to Bank or its Affiliates, and to perform Borrower’s duties under the Loan Documents (other than the Warrant).
“OFAC” is the Office of Foreign Assets Control of the United States Department of the Treasury and any successor thereto.
“Operating Documents” are, for any Person, such Person’s formation documents, as certified by the Secretary of State (or equivalent agency) of such Person’s jurisdiction of organization on a date that is no earlier than 30 days prior to the Effective Date, and, (a) if such Person is a corporation, its bylaws in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a partnership or limited partnership, its partnership agreement or limited partnership agreement (or similar agreement), each of the foregoing with all current amendments or modifications thereto.
“Other Connection Taxes” means, with respect to Bank, Taxes imposed as a result of a present or former connection between Bank and the jurisdiction imposing such Tax (other than connections arising from Bank having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Credit Extension or Loan Document).
“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Parent” is set forth in the first paragraph of this Agreement.
“Patents” means all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.
“Payment/Advance Form” is that certain form in the form attached hereto as Exhibit B.
“Payment Date” is set forth on Schedule I hereto.
“Perfection Certificate” is the Perfection Certificate delivered by Borrower in connection with this Agreement, as may be updated from time to time pursuant to the terms herein.
“Permitted Acquisition” means a transaction whereby Borrower acquires all or substantially all of the capital stock or property of another Person, which satisfies each of the following conditions:
(a) Borrower has delivered to Bank, evidence satisfactory to Bank in its sole and absolutely discretion that it will be in compliance with Section 5.8 of this Agreement at the time of any Permitted Acquisition and immediately after giving effect to such Permitted Acquisition;
(b) such transaction shall only involve an entity formed, and assets located, in the United States, and the party or parties being acquired is in the same or a substantially similar line of business as Borrower;
(c) no Event of Default has occurred and is continuing or would exist after giving effect to the transaction and Bank has received satisfactory evidence that Borrower is in compliance with all terms and conditions of this Agreement (and that it will be in compliance after giving effect to the transaction);
(d) the acquisition is approved by the Board (or equivalent control group) of all parties to the transaction;
(e) the total aggregate value of the consideration to be paid by Borrower and its Subsidiaries (including, without limitation, any earn-out and other deferred consideration obligations, but excluding capital stock of Parent that is not Disqualified Stock) in connection therewith in all of the contemplated transactions during the term of this Agreement does not exceed $12,500,000;
(f) Borrower provides Bank (i) written notice of the transaction at least 10 days before the closing of the transaction, and (ii) copies of the acquisition agreement and other material documents relative to the
contemplated transaction and such other financial information, financial analysis, documentation or other information relating to such transaction as Bank shall reasonably request at least 10 days before the closing of the transaction;
(g) Borrower is a surviving legal entity after completion of the contemplated transaction;
(h) the contemplated transaction is consensual and non-hostile;
(i) no Indebtedness will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of the contemplated transaction, other than Permitted Indebtedness, and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result of the contemplated transaction, other than Permitted Liens;
(j) any direct Subsidiary of Borrower acquired in the contemplated transaction shall, within 30 days (or such longer period of time as Bank may agree in writing) of the consummation of the transaction, become a Borrower) hereunder and provide to Bank a joinder to this Agreement to cause such Subsidiary to become a co-borrower hereunder, together with such appropriate financing statements and/or Control Agreements, all in form and substance satisfactory to Bank (including being sufficient to grant Bank a first priority Lien (subject to Permitted Liens) in and to the assets of such Subsidiary;
(k) the acquisition and the company being acquired is accretive in all respects;
(l) the assets being acquired or the target whose stock is being acquired did not have pro forma Consolidated Adjusted EBITDA that is negative (after taking into account reasonable adjustments, including the effects of proposed consolidation and restructuring by Borrower after such proposed purchase or acquisition) during the 12 month consecutive period most recently concluded prior to the consummation of such proposed acquisition; and
(m) Borrower shall have delivered to Bank, at least 5 Business Days prior to the date on which any such acquisition is to be consummated (or such later date as is agreed by Bank in its sole discretion), a certificate of a Responsible Officer of Borrower, in form and substance reasonably satisfactory to Bank, certifying that all of the requirements set forth in this definition have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition.
“Permitted Indebtedness” is:
(a) Borrower’s Indebtedness to Bank under this Agreement and the other Loan Documents;
(b) Indebtedness existing on the Effective Date which is shown on the Perfection Certificate;
(c) Subordinated Debt; provided that any convertible Indebtedness issued by Parent that is Subordinated Debt shall not require cash interest, principal or fees to be paid prior to maturity and shall have a maturity date at least 91 days after the Term Loan Maturity Date and the Term Loan Maturity Date (as defined in the Mezzanine Loan Agreement (or any successor or replacement definition));
(d) unsecured Indebtedness to trade creditors incurred in the ordinary course of business;
(e) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business;
(f) Indebtedness secured by Liens permitted under clauses (a) and (c) of the definition of “Permitted Liens” hereunder;
(g) Indebtedness in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be due and payable or with respect to which Borrower is contesting the amount or validity thereof in accordance with Section 4.8;
(h) Indebtedness consisting of judgments not otherwise constituting an Event of Default under Section 7.7;
(i) Indebtedness consisting of Permitted Investments under clauses (l) and (n) of the definition of “Permitted Liens” hereunder;
(j) extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness (a) through (i) above, provided that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome terms upon Borrower or its Subsidiary, as the case may be;
(k) Indebtedness in connection with the Mezzanine Loan Agreement so long as such Indebtedness is subject to the Subordination Agreement; and
(l) other unsecured Indebtedness not otherwise permitted by Section 6.4 not exceeding $200,000 in the aggregate outstanding at any time.
“Permitted Investments” are:
(a) Investments (including, without limitation, Subsidiaries) existing on the Effective Date which are shown on the Perfection Certificate;
(b) (i) Investments consisting of Cash Equivalents and (ii) any Investments permitted by Borrower’s investment policy, as amended from time to time, provided that such investment policy (and any such amendment thereto) has been approved in writing by Bank;
(c) Investments accepted in connection with Transfers permitted by Section 6.1;
(d) Investments consisting of the creation of a Subsidiary for the purpose of consummating a merger transaction permitted by Section 6.3 of this Agreement, which is otherwise a Permitted Investment;
(e) Investments consisting of Permitted Acquisitions;
(f) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of Borrower’s business;
(g) Investments in an aggregate outstanding amount not to exceed $500,000 at any time, consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business, and (ii) loans to employees, officers, directors, partners, managers and members relating to the purchase of equity securities of Borrower or its Subsidiaries pursuant to employee equity purchase plans or similar agreements approved by the Board;
(h) to the extent it is deemed to be an Investment, up-front fees, license fees, milestone payments, royalty payments and other cash payments arising in the ordinary course of business in connection with the acquisition of rights to intellectual property of a third party;
(i) Investments consisting of deposit or securities accounts (but only to the extent that Borrower is permitted to maintain such accounts pursuant to Section 5.7 of this Agreement) in which, to the extent required pursuant to Section 5.7 and Section 5.15, Bank has a Control Agreement in its favor;
(j) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business;
(k) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business; provided that this paragraph (j) shall not apply to Investments of Borrower in any Subsidiary;
(l) Investments by (i) Borrower in any Subsidiaries which are not a Borrower or Guarantor for ordinary, necessary and current operating expenses in an amount not to exceed $200,000 in the aggregate amongst all such Subsidiaries in any 12 month period, so long as an Event of Default does not exist at the time of any such Investment and would not exist after giving effect to any such Investment, (ii) Subsidiaries which are not a Borrower
or Guarantor in other Subsidiaries for ordinary, necessary and current operating expenses, (iii) any Subsidiary in Borrower, (iv) a Borrower in another Borrower and (v) Borrower in any Subsidiary which is a Borrower or Guarantor;
(m) joint ventures or strategic alliances in the ordinary course of Borrower’s business consisting of the non-exclusive licensing of technology, the development of technology or the providing of technical support, provided that any cash investments by Borrower do not exceed $200,000 in the aggregate in any 12 month period; and
(n) other Investments not otherwise permitted by Section 6.7 not exceeding $200,000 in the aggregate in any 12 month period.
“Permitted Liens” are:
(a) Liens existing on the Effective Date which are shown on the Perfection Certificate or arising under this Agreement or the other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or levies, either (i) not due and payable or (ii) being contested in good faith and for which Borrower maintains adequate reserves on Borrower’s Books, provided that no notice of any such Lien has been filed or recorded under the Internal Revenue Code;
(c) purchase money Liens or capital leases (i) on Equipment acquired or held by Borrower incurred for financing the acquisition of the Equipment securing no more than $200,000 in the aggregate amount outstanding, or (ii) existing on Equipment when acquired, if the Lien is confined to the property and improvements and the proceeds of the Equipment;
(d) non-exclusive licenses of Intellectual Property granted to third parties in the ordinary course of business;
(e) Liens of carriers, warehousemen, suppliers, or other Persons that are possessory in nature arising in the ordinary course of business so long as such Liens attach only to Inventory, securing liabilities in the aggregate amount not to exceed $250,000 and which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(f) Liens to secure payment of workers’ compensation, employment insurance, old-age pensions, social security and other like obligations incurred in the ordinary course of business (other than Liens imposed by ERISA);
(g) Liens, deposits and pledges to secure the performance of bids, tenders, contracts (other than contracts for the payment of money), public or statutory obligations, surety, stay, appeal, indemnity, performance or other similar bonds or other similar obligations arising in the ordinary course of business in an aggregate amount not to exceed $250,000;
(h) Liens arising from attachments or judgments, orders, or decrees in circumstances not constituting an Event of Default under Sections 7.4 and 7.7;
(i) leases or subleases of real property granted in the ordinary course of Borrower’s business (or, if referring to another Person, in the ordinary course of such Person’s business), and leases, subleases, non-exclusive licenses or sublicenses of personal property (other than Intellectual Property) granted in the ordinary course of Borrower’s business (or, if referring to another Person, in the ordinary course of such Person’s business), if the leases, subleases, licenses and sublicenses do not prohibit granting Bank a security interest therein;
(j) customary Liens of any bank in connection with statutory, common law and contractual rights of setoff and recoupment with respect to any deposit account or securities account of Borrower, provided that such account is permitted to be maintained pursuant to Section 5.7 of this Agreement;
(k) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(l) Liens arising from the filing of any precautionary financing statement on operating leases covering the leased property, to the extent such operating leases are permitted under this Agreement;
(m) Liens in favor of customs or revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(n) Liens securing Indebtedness permitted pursuant to clause (k) of the definition of “Permitted Indebtedness” so long as such Liens are subject to the Subordination Agreement; and
(o) Liens incurred in the extension, renewal or refinancing of the Indebtedness secured by Liens described in (a) through (n), to the extent such extension, renewal or refinancing is permitted hereunder, but any extension, renewal or replacement Lien must be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness may not increase.
“Person” is any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.
“Prime Rate” is set forth on Schedule I hereto.
“Prior Agreement” means that certain Second Amended and Restated Loan and Security Agreement dated as of March 29, 2022 by and between Parent and Bank, as amended from time to time.
“Protected Person” is defined in Section 11.3.
“Registered Organization” is any “registered organization” as defined in the Code with such additions to such term as may hereafter be made.
“Representatives” is defined in Section 11.8.
“Responsible Officer” is any of the Chief Executive Officer, President, Chief Financial Officer and Controller, or other similar officer of Borrower.
“Restricted License” is any material license or other material agreement (other than over-the-counter software commercially available to the public) with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with Bank’s and the Lenders’ right to sell any Collateral.; provided, however, that off-the-shelf software, open source code, application programming interfaces (APIs) and/or other trademarks, copyrights or patents or similar proprietary rights of others that are commercially available to the public under shrinkwrap licenses, clickwrap licenses, online terms of service or other terms of use or similar agreements in the ordinary course of business shall not constitute a Restricted License.
“Sanctioned Person” means a Person that: (a) is listed on any Sanctions list maintained by OFAC or any similar Sanctions list maintained by any other Governmental Authority having jurisdiction over Borrower; (b) is located, organized, or resident in any country, territory, or region that is the subject or target of Sanctions; or (c) is 50.0% or more owned or controlled by one (1) or more Persons described in clauses (a) and (b) hereof.
“Sanctions” means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by the United States government and any of its agencies, including, without limitation, OFAC and the U.S. State Department, or any other Governmental Authority having jurisdiction over Borrower.
“SEC” is the Securities and Exchange Commission, any successor thereto, and any analogous Governmental Authority.
“Securities Account” is any “securities account” as defined in the Code with such additions to such term as may hereafter be made.
“Series E Equity Financing” means the Parent’s sale of Series E preferred stock.
“Stock Pledge Agreement” is that certain Stock Pledge Agreement between Borrower and Bankt dated as of the Effective Date, as may be amended, modified or restated from time to time.
“Subordinated Debt” is indebtedness incurred by Borrower or any of its Subsidiaries subordinated to all of Borrower’s or any of its Subsidiaries’ now or hereafter indebtedness to Bank (pursuant to a subordination, intercreditor, or other similar agreement in form and substance satisfactory to Bank entered into between Bank and the other creditor), on terms acceptable to Bank.
“Subordination Agreement” means that certain Subordination Agreement by and among Bank, Agent (as such term is defined in the Mezzanine Loan Agreement) and the Lenders (as such term is defined in the Mezzanine Loan Agreement), dated as of the Effective Date (as the same may from time to time be amended, modified, supplemented and/or restated).
“Subsidiary” is, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock, partnership, membership, or other ownership interest or other equity securities having ordinary voting power (other than stock, partnership, membership, or other ownership interest or other equity securities having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless the context otherwise requires, each reference to a Subsidiary herein shall be a reference to a Subsidiary of Borrower or Guarantor.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan Advance” is defined in Section 1.1 of this Agreement.
“Term Loan Amortization Date” is set forth on Schedule I hereto.
“Term Loan Maturity Date” is set forth on Schedule I hereto.
“Trademarks” means, with respect to any Person, any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of such Person connected with and symbolized by such trademarks.
“Transfer” is defined in Section 6.1.
“USA Patriot Act” means the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (Public Law 107-56, signed into law on October 26, 2001), as amended from time to time.
“Warrant” is that certain Warrant to Purchase Stock dated as March 28, 2024 between Borrower and Bank, as amended, modified, supplemented and/or restated from time to time.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.
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| BORROWER: | |
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| HAWKEYE 360, INC. | |
| | | |
| | | |
| By: | /s/ Craig Searle | |
| | | |
| Name: Craig Searle | |
| | | |
| Title: Chief Financial Officer and Treasurer | |
| | | |
| | | |
| HAWKEYE 360 FEDERAL, INC. | |
| | | |
| | | |
| By: | /s/ Todd Probert | |
| | | |
| Name: Todd Probert | |
| | | |
| Title: President | |
| | | |
| | | |
| | | |
| BANK: | |
| | | |
| FIRST-CITIZENS BANK & TRUST COMPANY |
| | | |
| | | |
| By: | /s/ Tyler Dietrich | |
| | | |
| Name: Tyler Dietrich | |
| | | |
| Title: Managing Director | |
Signature Page to Loan and Security Agreement
SCHEDULE I
LSA PROVISIONS
EXHIBIT A
COMPLIANCE STATEMENT
EXHIBIT B
LOAN PAYMENT/ADVANCE REQUEST FORM
Exhibit 10.12
Execution Version
THIS AGREEMENT IS SUBJECT TO THAT CERTAIN SUBORDINATION AGREEMENT, DATED AS OF DECEMBER 18, 2025, BETWEEN SILICON VALLEY BANK, A DIVISION OF FIRST-CITIZENS BANK & TRUST COMPANY, AS FIRST LIEN LENDER, AND SILICON VALLEY BANK, A DIVISION OF FIRST-CITIZENS BANK & TRUST COMPANY, AS SECOND LIEN AGENT.
MEZZANINE LOAN AND SECURITY AGREEMENT
THIS MEZZANINE LOAN AND SECURITY AGREEMENT (this “Agreement”) is dated as of the Effective Date among (a) FIRST-CITIZENS BANK & TRUST COMPANY (“FCB”), in its capacity as administrative agent and collateral agent (“Agent”), (b) SILICON VALLEY BANK, A DIVISION OF FIRST-CITIZENS BANK & TRUST COMPANY, as a lender, (c) (i) ARIZONA INNOVATION CREDIT FUND, L.P., as a lender on behalf of Arizona Innovation Credit Fund, L.P. – Pool II (“AICF II”) and (ii) INNOVATION CREDIT SMA II, L.P., as a lender on behalf of Innovation Credit SMA II, L.P. – Pool II (“SMA” and together with AICF II collectively “Pinegrove”) (d) (i) HERCULES CAPITAL, INC., a Maryland corporation, as a lender (“Hercules Capital”), (ii) HERCULES PRIVATE CREDIT FUND 1 L.P., a Delaware limited partnership, as a lender (“HPCF 1”), (iii) HERCULES VENTURE GROWTH CREDIT OPPORTUNITIES FUND 1 L.P., a Delaware limited partnership, as a lender (“HVGCOF 1”), (iv) HERCULES GROWTH LENDING FUND IV LP, a Delaware limited partnership, as a lender (“HGLF IV”), and (v) HERCULES EVERGREEN FUND LP, a Delaware limited partnership, as a lender (“HEF” and, together with Hercules Capital, HPCF 1, HVGCOF 1, and HGLF IV, individually and collectively, “Hercules” and together with FCB, Pinegrove and each of the other lenders from time to time a party hereto collectively, the “Lenders”, and each individually, a “Lender”), and (e) (i) HAWKEYE 360, INC., a Delaware corporation (“Parent”) and (ii) HAWKEYE 360 FEDERAL, INC., a Delaware corporation (“HE Federal” and together with Parent, jointly and severally, individually and collectively, as the context requires, “Borrower”). The parties agree as follows:
1 LOAN AND TERMS OF PAYMENT
1.1 Term Loan.
(a) Availability. Subject to the terms and conditions of this Agreement, upon Borrower’s request on the Effective Date, the Lenders, severally and not jointly, shall make a term loan advance in the original principal amount of $34,000,000 (the “Term Loan Advance”). Borrower may request the Term Loan Advance as set forth on Schedule I hereto. The Term Loan Advance shall be made according to the respective Term Loan Commitment Percentages of the Lenders.
(b) Repayment. Borrower shall repay the Term Loan Advance as set forth in Schedule I hereto. All outstanding principal and accrued and unpaid interest under the Term Loan Advance (including the PIK Amount), and all other outstanding Obligations with respect to such Term Loan Advance, are due and payable in full on the Term Loan Maturity Date.
(c) Permitted Prepayment. Borrower shall have the option to prepay all, but not less than all, of the Term Loan Advance, provided Borrower (i) delivers written notice to Agent of its election to prepay the Term Loan Advance at least five (5) Business Days prior to such prepayment, and (ii) pays, on the date of such prepayment (A) the outstanding principal plus accrued and unpaid interest with respect to the Term Loan Advance (including the PIK Amount), (B) the Prepayment Fee (if applicable), (C) the Final Payment and (D) all other sums, if any, that shall have become due and payable with respect to the Term Loan Advance, including Lender Expenses and interest at the Default Rate with respect to any past due amounts.
(d) Mandatory Prepayment Upon an Acceleration. If the Term Loan Advance is accelerated by Agent or the Lenders following the occurrence and during the continuance of an Event of Default, Borrower shall immediately pay to Agent, for the account of the Lenders in accordance with their respective Pro Rata Share, an amount equal to the sum of (i) all outstanding principal plus accrued and unpaid interest with respect to the Term Loan Advance (including the PIK Amount), (ii) the Prepayment Fee (if applicable), (iii) the Final Payment and (iv) Lender
Expenses and all other sums, if any, that shall have become due and payable with respect to the Term Loan Advance, including interest at the Default Rate with respect to any past due amounts.
1.2 Overadvances. If:
(a) as of any month end on or prior to December 31, 2026 for which financial statements have been (or were required to have been) delivered to Agent pursuant to Section 5.3(a), (i) Borrower’s unrestricted and unencumbered (excluding Liens arising under this Agreement and Liens permitted pursuant to clauses (j) or (n) of the definition of Permitted Liens) cash and Cash Equivalents subject to a Control Agreement in favor of Agent for the benefit of the Lenders in accordance with this Agreement (except that cash and Cash Equivalents held in the SAM Account may be included in foregoing calculation without such a Control Agreement until such time that a Control Agreement is required pursuant to Section 5.7(c)) is less than $50,000,000 and (ii) Borrower’s Consolidated Revenue Leverage Ratio is greater than 0.80:1.00, notwithstanding anything set forth in Section 1.1, Borrower shall immediately (A) prepay to Senior Lender in cash the Term Loan Advance (as defined in the Senior Loan Agreement (or any successor or replacement definition)), or (B) to the extent permitted pursuant to the Subordination Agreement, prepay, without any Prepayment Fee, to Agent the Term Loan Advance under this Agreement, in either case, in an amount such that after giving pro forma effect to such prepayment as of the applicable month end, Borrower’s Consolidated Revenue Leverage Ratio will not exceed 0.80:1.00; and
(b) as of any month end thereafter for which financial statements have been (or were required to have been) delivered to Agent pursuant to Section 5.3(a), Borrower’s Consolidated Revenue Leverage Ratio is greater than the applicable level set forth below, notwithstanding anything set forth in Section 1.1, Borrower shall immediately (A) prepay to Senior Lender in cash the Term Loan Advance (as defined in the Senior Loan Agreement (or any successor or replacement definition)), or (B) to the extent permitted pursuant to the Subordination Agreement, prepay, without any Prepayment Fee, to Agent the Term Loan Advance, in either case in an amount such that after giving pro forma effect to such prepayment as of the applicable month end, Borrower’s Consolidated Revenue Leverage Ratio will not exceed the ratio opposite the applicable month end:
| | | | | | | | | | | |
| Month Ending | Maximum Consolidated Revenue Leverage
Ratio | |
| | | |
| January 31, 2027 through December 31, 2027 | 0.70:1.00 | |
| | | |
| January 31, 2028 and each month end thereafter | 0.60:1.00 | |
1.3 Payment of Interest on the Credit Extensions.
(a) Interest Payments. Interest on the principal amount of the Term Loan Advance is payable as set forth on Schedule I hereto.
(b) Interest Rate.
(i) Term Loan Advance. Subject to Section 1.3(c), the outstanding principal amount of the Term Loan Advance shall accrue interest as set forth on Schedule I hereto.
(ii) All-In Rate. Notwithstanding any terms in this Agreement to the contrary, if at any time the interest rate applicable to any Obligations is less than zero percent (0.0%), such interest rate shall be deemed to be zero percent (0.0%) for all purposes of this Agreement.
(c) Default Rate. Immediately upon the occurrence and during the continuance of an Event of Default, the outstanding Obligations shall bear interest at a rate per annum which is four percent (4.0%) above the rate that is otherwise applicable thereto (the “Default Rate”) unless Agent otherwise elects from time to time in its sole discretion to impose a smaller increase. Fees and expenses which are required to be paid by Borrower pursuant to the Loan Documents (including, without limitation, Lender Expenses) but are not paid when due shall bear interest until paid at a rate equal to the highest rate applicable to the Obligations. Payment or acceptance of the increased interest rate provided in this Section 1.3(c) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Agent or the Lenders.
(d) Adjustment to Interest Rate. Each change in the interest rate applicable to any amounts payable under the Loan Documents based on changes to the Prime Rate shall be effective on the effective date of any change to the Prime Rate and to the extent of such change.
(e) Interest Computation. Interest shall be computed as set forth on Schedule I hereto. In computing interest, the date of the making of any Credit Extension shall be included and the date of payment shall be excluded; provided, however, that if any Credit Extension is repaid on the same day on which it is made, such day shall be included in computing interest on such Credit Extension.
1.4 Fees. Borrower shall pay to Agent:
(a) Term Loan Advance Commitment Fee. A fully earned, non-refundable commitment fee payable to Agent for the ratable account of the Lenders as set forth on Schedule I hereto;
(b) Prepayment Fee. The Prepayment Fee, when due hereunder, which shall be fully earned and non-refundable as of such date, payable to Agent (as set forth in the definition of “Prepayment Fee”) for the ratable account of the Lenders;
(c) Final Payment. The Final Payment, when due hereunder, which shall be non-refundable as of such date and fully earned as of the Effective Date, payable to Agent for the ratable account of the Lenders; and
(d) Lender Expenses. All Lender Expenses incurred through and after the Effective Date, when due (or, if no stated due date, upon demand by Agent or any Lender to whom such Lender Expenses are owed).
Unless otherwise provided in this Agreement or in a separate writing by Agent, Borrower shall not be entitled to any credit, rebate, or repayment of any fees earned by Agent or any Lender pursuant to this Agreement notwithstanding any termination of this Agreement or the suspension or termination of any Lender’s obligation to make loans and advances hereunder. Agent may deduct amounts owing by Borrower under the clauses of this Section 1.4 pursuant to the terms of Section 1.5(c). Agent shall provide Borrower written notice of deductions made pursuant to the terms of the clauses of this Section 1.4.
1.5 Payments; Pro Rata Treatment; Application of Payments; Debit of Accounts.
(a) All payments (including prepayments) to be made by Borrower to Agent or to Lenders under any Loan Document shall be made to Agent for Agent’s own account or for the account of Lenders, as applicable, in immediately available funds in Dollars, without setoff, counterclaim, or deduction, before 12:00 p.m. Pacific time on the date when due. Payments of principal and/or interest received after 12:00 p.m. Pacific time are considered received at the opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment shall be due the next Business Day, and additional fees or interest, as applicable, shall continue to accrue until paid.
(b) If Agent receives any payment for the account of Lenders on or prior to 12:00 p.m. Pacific time on any Business Day, Agent shall pay to each applicable Lender such Lender’s Pro Rata Share of such payment on such Business Day. If Agent receives any payment for the account of Lenders after 12:00 p.m. Pacific time on any Business Day, Agent shall pay to each applicable Lender such Lender’s Pro Rata Share of such payment on the next Business Day.
(c) Except as otherwise provided herein, each payment (including each prepayment) by Borrower on account of principal or interest on the Term Loan Advance shall be applied according to each Lender’s Pro Rata Share of the outstanding principal amount of the Term Loan Advance. The amount of each principal prepayment of the Term Loan Advance shall be applied to reduce the then remaining installments of the Term Loan Advance based upon each Pro Rata Share of Term Loan Advance.
(d) Agent has the exclusive right to determine the order and manner in which all payments with respect to the Obligations may be applied. Borrower shall have no right to specify the order or the accounts to which Agent shall allocate or apply any payments required to be made by Borrower to Agent or otherwise received by Agent or any Lender under this Agreement when any such allocation or application is not specified elsewhere in this Agreement.
(e) Agent may debit any of Borrower’s deposit accounts maintained with FCB, including the Designated Deposit Account, for principal and interest payments or any other amounts Borrower owes Agent or any Lender when due under the Loan Documents (including the PIK Amount after it is capitalized). These debits shall not constitute a set-off.
(f) Unless Agent shall have been notified in writing by Borrower prior to the date of any payment due to be made by Borrower hereunder that Borrower will not make such payment to Agent, Agent may assume that Borrower is making such payment, and Agent may, but shall not be required to, in reliance upon such assumption, make available to Lenders their respective Pro Rata Share of a corresponding payment amount. If such payment is not made to Agent by Borrower within three (3) Business Days after such due date, Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of Agent or any Lender against Borrower.
(g) The obligations of Lenders hereunder to make Term Loan Advance and to make payments pursuant to Section 9.9 are several and not joint. The failure of any Lender to make the Term Loan Advance or make any such payment on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to make the Term Loan Advance or make any such payment under Section 9.9.
(h) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Term Loan Advance resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Term Loan Advance, as the case may be, and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Term Loan Advance, as the case may be, of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Term Loan Advance; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Commitments to any assignee or participant, other than to Borrower. Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of Borrower in the amount of such participation.
1.6 Change in Circumstances.
(a) Increased Costs. If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, any Lender, (ii) subject any Lender or Agent to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and (C) Connection Income Taxes) on its loans, loan principal, letters of credit,
commitment, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, or (iii) impose on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or Credit Extensions made by such Lender, and the result of any of the foregoing shall be to increase the cost to such Lender or Agent, as applicable, of making, converting to, continuing or maintaining any Credit Extension (or of maintaining its obligation to make any such Credit Extension), or to reduce the amount of any sum received or receivable by such Lender or Agent, as applicable, hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender or Agent, as applicable, Borrower shall promptly pay to Agent or such Lender, as applicable, such additional amount or amounts as will compensate such Lender or Agent, as applicable, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending of such Lender or such Lender’s holding company regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital as a consequence of this Agreement, any term loan facility, or the Credit Extensions made by such Lender to a level below that which such Lender could have achieved but for such Change in Law (taking into consideration such Lender’s or its holding company’s policies with respect to capital adequacy and liquidity), then from time to time upon written request of such Lender, Borrower shall promptly pay to such Lender or such Lender’s holding company such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or Agent setting forth the amount or amounts necessary to compensate such Lender or Agent or its holding company, as applicable, as specified in paragraph (a) or (b) of this Section and delivered to Borrower, shall be conclusive manifest error. Borrower shall pay such Lender or Agent, as applicable, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section 1.6 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that Borrower shall not be required to compensate such Lender pursuant to subsection (a) for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions (except that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine (9) month period shall be extended to include the period of retroactive effect).
1.7 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith discretion of Borrower) requires the deduction or withholding of any Tax from any such payment by Borrower, then (i) Borrower shall be entitled to make such deduction or withholding, (ii) Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law, and (iii) if such Tax is an Indemnified Tax, the sum payable by Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 1.7) such Agent and each Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) Payment of Other Taxes by Borrower. Without limiting the provisions of subsection (a) above, Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law.
(c) Tax Indemnification. Without limiting the provisions of subsections (a) and (b) above, Borrower shall, and does hereby, indemnify Agent and each Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 1.7) payable or paid by Agent or such Lender or required to be withheld or deducted from a payment to Agent or any Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A reasonably detailed certificate as to the amount of such payment or liability delivered to Borrower by Agent or such Lender shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 1.7, Borrower shall deliver to Agent a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Agent.
(e) Status of Lenders. If any Lender (including any assignee or successor) is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan Document, it shall deliver to Borrower and Agent, at the time or times reasonably requested by Borrower or Agent, such properly completed and executed documentation reasonably requested by Borrower as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by Borrower or Agent as will enable Borrower or Lender to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, each Lender shall deliver to Borrower and Agent whichever of IRS Form W-9, IRS Form W-8BEN-E, IRS Form W-8ECI or W-8IMY is applicable, as well as any applicable supporting documentation or certifications.
1.8 Procedures for Borrowing.
(a) Term Loan Advance. Subject to the prior satisfaction of all other applicable conditions to the making of a Term Loan Advance set forth in this Agreement (which must be satisfied no later than 12:00 p.m. Pacific time on the applicable Funding Date), to obtain a Term Loan Advance, Borrower shall notify Agent (which notice shall be irrevocable) by 12:00 p.m. Pacific time at least three (3) Business Days (or such shorter period as Agent agrees with respect to the Term Loan Advance advanced on the Effective Date) prior to the Funding Date of the Term Loan Advance. Such notice shall be made through Agent’s online banking platform by an individual duly authorized by an Administrator, by electronic mail or by telephone. In connection with any such notification, Borrower shall deliver to Agent by electronic mail or through Agent’s online banking platform a completed Notice of Borrowing executed by an Authorized Signer and such other reports and information as Agent may reasonably request. Such Notice of Borrowing and other information (if any) must be received by Agent prior to 12:00 p.m. Pacific time at least three (3) Business Days (or such shorter period as Agent agrees with respect to the Term Loan Advance advanced on the Effective Date prior to the requested Funding Date. Agent shall have determined to its satisfaction that any notice of or request for Term Loan Advance has been duly authorized by Borrower. Agent may rely on any notice given by a person whom Agent believes is an Authorized Signer or other individual authorized by an Administrator. Borrower will indemnify Agent for any loss Agent suffers due to such belief or reliance.
(b) In determining compliance with any condition hereunder to the making of a Credit Extension that, by its terms, must be fulfilled to the satisfaction of a Lender, Agent may presume that such condition is satisfactory to such Lender unless Agent shall have received notice to the contrary from such Lender prior to the making of such Credit Extension. Unless Agent shall have been notified in writing by any Lender prior to the date of any Credit Extension, that such Lender will not make the amount that would constitute its share of such borrowing available to Agent, Agent may assume that such Lender is making such amount available to Agent, and Agent may, in reliance upon such assumption, make available to Borrower a corresponding amount. If such amount is not made available to Agent by the required time on the Funding Date therefor, such Lender shall pay to Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate or (ii) a rate determined by Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to Agent. If such Lender’s share of such Credit Extension is not made available to Agent by such Lender within three (3) Business Days after such Funding Date, Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to the Term Loan Advance, on demand, from Borrower.
(c) Agent shall credit proceeds of a Credit Extension to the Designated Deposit Account. Each Lender may make the Term Loan Advance under this Agreement based on instructions from an Authorized Signer or other individual authorized by an Administrator, or without instructions if such Term Loan Advance is necessary to meet Obligations which have become due.
2 CONDITIONS OF CREDIT EXTENSIONS
2.1 Conditions Precedent to Initial Credit Extension. Subject to Section 5.15, the effectiveness of this Agreement and each Lender’s obligation to make the initial Credit Extension shall be subject to the satisfaction or waiver, prior to or concurrently with the making of such Credit Extension on or about the Effective Date, of the following conditions precedent:
(a) Loan Documents. Agent shall have received each of the following, each of which shall be in form and substance reasonably satisfactory to Agent:
(i) duly executed Loan Documents;
(ii) duly executed Warrant for each Lender, together with a capitalization table and copies of Parent’s equity documents;
(iii) duly executed Subordination Agreement;
(iv) duly executed collateral assignment of representations and warranties insurance policy;
(v) duly executed Perfection Certificate(s) of Borrower;
(vi) duly executed Stock Pledge Agreement;
(vii) a legal opinion of Borrower’s counsel dated as of the Effective Date;
(viii) a duly executed marketing consent forms; and
(ix) a completed Notice of Borrowing executed by Borrower and otherwise complying with the requirements of Section 1.8.
(b) Corporate Borrowing Certificates (or equivalent Officers’ Certificates); Certified Operating Documents; Good Standing Certificates. Agent shall have received (i) certificate duly executed by a Responsible Officer or secretary of Borrower with respect to Borrower attaching: (A) Operating Documents and (B) Borrowing Resolutions, and (ii) long-form good standing certificates of Borrower certified by the Secretary of State of the State of Delaware with respect to Borrower, and the Secretary of State (or equivalent agency) of each other jurisdiction in which Borrower is qualified to conduct business, in each case as of a date no earlier than 30 days prior to the Effective Date.
(c) Due Diligence. Agent and each Lender shall have (i) completed a due diligence investigation of each Borrower, and with results, satisfactory to Agent and each Lender and shall have been given such access to the management, records, books of account, contracts and properties of Borrower and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as it shall have requested received; (ii) received certified copies, dated as of a recent date, of searches for financing statements filed in the central filing office of the State of Delaware, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Credit Extension, will be terminated or released, and Intellectual Property search results and completed exhibits to the IP Agreement, and (iii) received all asset appraisals, field audits, and such other reports and certifications, as Agent has reasonably requested.
(d) Insurance. Agent shall have received evidence reasonably satisfactory to Agent that the insurance policies and endorsements required by Section 5.6 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and additional insured clauses or endorsements in favor of Agent.
(e) Existing Indebtedness. Bank shall have received (i) duly executed payoff letter from Comerica; and (ii) evidence that (A) the Liens securing Indebtedness owed by Borrower to Comerica will be
terminated and (B) the documents and/or filings evidencing the perfection of such Liens, including without limitation any financing statements and/or control agreements, have or will, concurrently with the initial Credit Extension, be terminated.
(f) Patriot Act, etc. Agent and each Lender shall have received all documentation and other information requested (including beneficial ownership information) in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the USA Patriot Act, and Borrower shall have satisfied all requirements related thereto.
(g) Acquisition, etc. The following transactions shall have been consummated, in each case on terms and conditions reasonably satisfactory to the Lenders:
(i) the Acquisition shall be consummated in all material respects in accordance with Applicable Law and the Acquisition Agreement;
(ii) all conditions to the consummation of the Acquisition set forth in the Acquisition Documentation shall have been satisfied without any amendments or waivers materially adverse to the Lenders;
(iii) Agent shall have received a fully executed Acquisition Agreement certified by a Responsible Officer to be a true and complete copy of the Acquisition Agreement; and
(iv) the merger certificate effectuating the Acquisition shall have been filed with the Texas Secretary of State.
(h) Payment of the fees and Lender Expenses then due as specified in Section 1.4 hereof.
(i) Senior Facility. Agent shall have received duly executed copies of the Senior Loan Documents and funding thereunder shall have occurred.
(j) Equity Contribution. Agent shall have received evidence that Parent has received unrestricted gross cash proceeds of at least $55,000,000 on or about the Effective Date from the issuance of capital stock of Parent or capital contributions in respect thereof, in each case excluding Disqualified Stock.
2.2 Conditions Precedent to all Credit Extensions. Each Lender’s obligation to make each Credit Extension, including the initial Credit Extension, is subject to the following conditions precedent:
(a) receipt of Borrower’s Credit Extension request and the related materials and documents as required by and in accordance with Section 1.8;
(b) the representations and warranties in this Agreement shall be true and correct in all material respects as of the date of any Credit Extension request and as of the Funding Date of each Credit Extension; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date, and no Default or Event of Default shall have occurred and be continuing or result from the Credit Extension. Each Credit Extension is Borrower’s representation and warranty on that date that the representations and warranties in this Agreement remain true and correct in all material respects; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true and correct in all material respects as of such date; and
(c) the Required Lenders determine to their satisfaction that there has not been a (i) material impairment in the general affairs, management, results of operation, financial condition, nor any material adverse deviation by Borrower from the business plan of Borrower presented to and accepted by Agent as of the Effective
Date (or from a business plan of Borrower presented to and accepted by Agent subsequent to the Effective Date pursuant to Section 5.3), or (ii) Material Adverse Change.
2.3 Covenant to Deliver. Borrower shall deliver to Agent each item required to be delivered to Agent under this Agreement as a condition precedent to any Credit Extension. A Credit Extension made prior to the receipt by Agent of any such item shall not constitute a waiver by Agent or any Lender of Borrower’s obligation to deliver such item, and the making of any Credit Extension in the absence of a required item shall be in each Lender’s commercially reasonable discretion.
3 CREATION OF SECURITY INTEREST
3.1 Grant of Security Interest.
(a) Borrower hereby grants Agent, for the benefit of the Lenders, to secure the payment and performance in full of all of the Obligations, a continuing security interest in, and pledges to Agent, for the benefit of the Lenders, the Collateral, wherever located, whether now owned or hereafter acquired or arising, and all proceeds and products thereof. For clarity, any reference to “Agent’s Lien” or any granting of Collateral to Agent in this Agreement or any Loan Document means the Lien granted to Agent for the benefit of the Lenders.
(b) Borrower acknowledges that it previously has entered, or may in the future enter, into Bank Services Agreements with FCB. Regardless of the terms of any Bank Services Agreement, Borrower and Affiliates agrees that any amounts Borrower owes FCB thereunder shall be deemed to be Obligations hereunder and that it is the intent of Borrower and FCB to have all such Obligations secured by the first priority perfected security interest in the Collateral granted herein (subject to Permitted Liens).
3.2 Authorization to File Financing Statements. Borrower hereby authorizes Agent to file financing statements, without notice to Borrower, with all jurisdictions deemed necessary or appropriate by Agent to perfect or protect Agent’s and the Lenders’ interests or rights hereunder, including a notice that any disposition of the Collateral, by Borrower or any other Person (except in accordance with this Agreement), shall be deemed to violate the rights of Agent under the Code. Such financing statements may indicate the Collateral as “all assets of the Debtor” or words of similar effect.
3.3 Termination. If this Agreement is terminated, Agent’s Lien in the Collateral shall continue until the Obligations (other than inchoate indemnity obligations, any obligations which, by their terms, are to survive the termination of this Agreement and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3) are repaid in full in cash. Upon payment in full in cash of the Obligations (other than inchoate indemnity obligations, any obligations which, by their terms, are to survive the termination of this Agreement and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3) and at such time as Agent’s and each Lender’s obligation to make Credit Extensions has terminated, Agent shall, at Borrower’s sole cost and expense, terminate its security interest in the Collateral and all rights therein shall revert to Borrower. In the event (a) all Obligations (other than inchoate indemnity obligations and any obligations which, by their terms, are to survive the termination of this Agreement), except for Bank Services, are satisfied in full, and (b) this Agreement is terminated, Agent shall terminate the security interest granted herein upon Borrower providing cash collateral acceptable to Agent in its commercially reasonable discretion for Bank Services, if any. In the event such Bank Services consist of outstanding Letters of Credit, Borrower shall provide to Agent cash collateral in an amount equal to at least (x) 103.0% of the face amount of all such Letters of Credit denominated in Dollars and (y) 108.0% of the Dollar Equivalent of the face amount of all such Letters of Credit denominated in a Foreign Currency, plus, in each case, all interest, fees, and costs due or estimated by FCB in its commercially reasonable judgment to become due in connection therewith, to secure all of the Obligations relating to such Letters of Credit.
3.4 Release of Collateral. Agent hereby agrees that any Liens granted to Agent by Borrower or any of its Subsidiaries on any Collateral shall be automatically released (a) in accordance with Section 3.3, upon the satisfaction in full, in cash, of the Obligations and termination of this Agreement (other than inchoate indemnity obligations, any obligations which, by their terms, are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3), (b) if such Collateral is sold, transferred or otherwise disposed of by Borrower or any of its Subsidiaries pursuant to any sale,
transfer or other disposition that is made in compliance with, and subject to the terms and condition of, this Agreement or (c) if required to effect any sale, transfer or other disposition of such Collateral in connection with any exercise of remedies by Agent pursuant to Section 8. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of Borrower or any of its Subsidiaries in respect of) all interests retained by Agent in Borrower or any of its Subsidiaries. Upon Borrower’s reasonable request and at Borrower’s sole cost and expense, Agent shall execute, deliver or authorize such documents as may be reasonably required to evidence any release described above.
4 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
4.1 Due Organization, Authorization; Power and Authority.
(a) Borrower and each of its Subsidiaries are each duly existing and in good standing as a Registered Organization in their respective jurisdiction of formation and are qualified and licensed to do business and is in good standing in any jurisdiction in which the conduct of their respective business or their ownership of property requires that they be qualified except where the failure to do so could not reasonably be expected to have a material adverse effect on Borrower’s business or operations.
(b) All information set forth on the Perfection Certificate (as updated from time to time pursuant to the terms herein) pertaining to Borrower and each of its Subsidiaries is true and correct in all material respects (it being understood and agreed that Borrower may from time to time update certain information in the Perfection Certificate after the Effective Date to the extent permitted by one or more specific provisions in this Agreement and the Perfection Certificate shall be deemed to be updated to the extent such notice is provided to Agent of such permitted update).
(c) The execution, delivery and performance by Borrower and each of its Subsidiaries of the Loan Documents to which it is a party have been duly authorized, and do not (i) conflict with any of Borrower’s or any such Subsidiary’s organizational documents, (ii) contravene, conflict with, constitute a default under or violate any material Applicable Law, (iii) contravene, conflict with or violate any applicable order, writ, judgment, injunction, decree, determination or award of any Governmental Authority by which Borrower or any of its Subsidiaries or any of their property or assets may be bound or affected, (iv) require any action by, filing (other than a financing statement), registration, or qualification with, or Governmental Approval from, any Governmental Authority (except such Governmental Approvals which have already been obtained and are in full force and effect or are being obtained pursuant to Section 5.2(b)), or (v) conflict with, contravene, constitute a default or breach under, or result in or permit the termination or acceleration of, any material agreement by which Borrower or any of its Subsidiaries is bound. Neither Borrower nor any of its Subsidiaries are in default under any agreement to which it is a party or by which it is bound in which the default could reasonably be expected to have a material adverse effect on Borrower’s or any of its Subsidiary’s business or operations.
4.2 Collateral.
(a) The security interest granted herein is and shall at all times continue to be a first priority perfected security interest in the Collateral (subject to Permitted Liens). Borrower has good title to, rights in, and the power to transfer each item of the Collateral upon which it purports to grant a Lien hereunder, free and clear of any and all Liens except Permitted Liens.
(b) Borrower has no Collateral Accounts at or with any bank or financial institution other than FCB or FCB’s Affiliates except for the Collateral Accounts described in the Perfection Certificate delivered to Agent in connection herewith and which Borrower has taken such actions as are necessary to give Agent a perfected security interest therein, pursuant to the terms of Section 5.7(c). The Accounts are bona fide, existing obligations of the Account Debtors.
(c) The Collateral (other than (i) any mobile Equipment in possession of Borrower’s employees or agents, (ii) promotional, marketing, and advertising materials, (iii) items in transit, or (iv) with an aggregate value in excess of $750,000) is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate or as permitted pursuant to Section 6.2. None of the components of the Collateral (other than (i) any mobile Equipment in possession of Borrower’s employees or agents, (ii) promotional, marketing, and advertising materials, (iii) items in transit, or (iv) with an aggregate value in excess of $750,000) shall be maintained at locations other than as provided in the Perfection Certificate or as permitted pursuant to Section 6.2.
(d) All Inventory is in all material respects of good and marketable quality, free from material defects.
(e) Borrower owns, or possesses the right to use to the extent necessary in its business, all Intellectual Property, licenses and other intangible assets that are used in the conduct of its business as now operated, except to the extent that such failure to own or possess the right to use such asset would not reasonably be expected to have a material adverse effect on Borrower’s business or operations, and no such asset, to the best knowledge of Borrower, conflicts with the valid Intellectual Property, license, or intangible asset of any other Person to the extent that such conflict could reasonably be expected to have a material adverse effect on Borrower’s business or operations.
(f) Except as noted on the Perfection Certificate or for which notice has been given to Agent pursuant to and in accordance with Section 5.9(c), Borrower is not a party to, nor is it bound by, any Restricted License.
4.3 Litigation. Other than as set forth in the Perfection Certificate or as disclosed to Agent pursuant to Section 5.3(i), there are no actions, investigations or proceedings pending or, to the knowledge of any Responsible Officer, threatened in writing by or against Borrower or any of its Subsidiaries which could reasonably be expected to result in damages or costs, including settlement payments, to Borrower or any of its Subsidiaries of more than, individually or in the aggregate, $500,000, not covered by independent third party insurance as to which liability has been accepted by the carrier providing such insurance.
4.4 Financial Statements; Financial Condition. All consolidated financial statements for Parent and any of its Subsidiaries delivered to Agent by submission to the Financial Statement Repository, or otherwise submitted to Agent fairly present in all material respects Parent’s consolidated financial condition and Parent’s consolidated results of operations for the periods covered thereby, subject, in the case of unaudited financial statements, to normal year-end adjustments and the absence of footnote disclosures. All consolidated financial statements for ISA and any of its Subsidiaries delivered to Agent by submission to the Financial Statement Repository, or otherwise submitted to Agent fairly present in all material respects ISA’s consolidated financial condition and ISA’s consolidated results of operations for the periods covered thereby, subject, in the case of unaudited financial statements, to normal year-end adjustments and the absence of footnote disclosures. There has not been any material deterioration in Parent’s consolidated financial condition since the date of the most recent financial statements submitted to the Financial Statement Repository, or otherwise submitted to Agent. As of the Effective Date, there has not been any material deterioration in ISA’s consolidated financial condition since the date of the most recent financial statements submitted to the Financial Statement Repository, or otherwise submitted to Agent.
4.5 Solvency. The fair salable value of Parent’s consolidated assets (including goodwill minus disposition costs) exceeds the fair value of Borrower’s liabilities; Borrower is not left with unreasonably small capital after the transactions in this Agreement, the Acquisition, and the incurrence of Indebtedness under the Senior Loan Agreement; and Borrower and each of its Subsidiaries are able to pay their debts (including trade debts) as they mature.
4.6 Regulatory Compliance. Borrower is not an “investment company” or a company “controlled” by an “investment company” under the Investment Company Act of 1940, as amended. Borrower is not engaged as one of its important activities in extending credit for margin stock (under Regulations X, T and U of the Federal Reserve Board of Governors). Borrower and each of its Subsidiaries (a) have complied with all Applicable Law and (b) have not violated any Applicable Law, except, in the case of clauses (a) and (b), where the non-compliance with which or violation of which could not reasonably be expected to have a material adverse effect on Borrower’s business or operations. Borrower and each of its Subsidiaries have duly complied with, and their respective facilities, business,
assets, property, leaseholds, real property and Equipment are in compliance with, Environmental Laws, except where the failure to do so could not reasonably be expected to have a material adverse effect on Borrower’s business or operations; there have been no outstanding citations, notices or orders of non-compliance issued to Borrower or any of its Subsidiaries or relating to their respective facilities, businesses, assets, property, leaseholds, real property or Equipment under such Environmental Laws which would not reasonably be expected to have a material adverse effect on Borrower’s business or operations. Borrower and each of its Subsidiaries have obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all Governmental Authorities that are necessary to continue their respective businesses as currently conducted in all material respects.
4.7 Subsidiaries; Investments. Borrower does not own any stock, unit, membership interest, partnership, or other ownership interest or other equity securities except for Permitted Investments.
4.8 Tax Returns and Payments; Pension Contributions.
(a) Borrower and each of its Subsidiaries have timely filed, or submitted extensions for, all required tax returns and reports, except for returns or reports related to taxes as may be due or owing in amounts that do not individually or in the aggregate, exceed $100,000, and Borrower and each of its Subsidiaries have timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower and each of its Subsidiaries except (a) to the extent such taxes are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor, or (b) if such taxes, assessments, deposits and contributions do not, individually or in the aggregate, exceed $100,000. Borrower is unaware of any claims or adjustments proposed for any of Borrower’s or any of its Subsidiary’s prior tax years which could result in additional taxes becoming due and payable by Borrower or any of its Subsidiaries in excess of $100,000 in the aggregate.
(b) If and to the extent applicable, Borrower and each of its Subsidiaries have paid all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with their terms, and neither Borrower nor any of its Subsidiaries has withdrawn from participation in, and has not permitted partial or complete termination of, or permitted the occurrence of any other event with respect to, any such plan which could reasonably be expected to result in any liability of Borrower or any of its Subsidiaries, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.
4.9 Full Disclosure. No written representation, warranty or other statement of Borrower or any of its Subsidiaries in any report, certificate or written statement submitted to the Financial Statement Repository or otherwise submitted to Agent or any Lender in connection with the Loan Documents, or the transactions contemplated thereby, as of the date such representation, warranty, or other statement was made, taken together with all such reports, certificates and written statements submitted to the Financial Statement Repository or otherwise submitted to Agent or any Lender in connection with the Loan Documents, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained in the reports, certificates or written statements not misleading in light of the circumstances under which they were made (it being recognized by Agent and each Lender that the projections and forecasts provided by Borrower or any of its Subsidiaries in good faith and based upon reasonable assumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results). As of the date hereof, the representations and warranties of the purchaser, and to Borrower’s knowledge, of the seller, contained in the Acquisition Documentation, as are material to the interest of the Lenders, are true and correct in all material respects and all conditions to the consummation of the Acquisition set forth in the Acquisition Documentation have been satisfied without any amendments or waivers materially adverse to the Lenders.
4.10 Sanctions. Neither Borrower nor any of its Subsidiaries is: (a) in violation of any Sanctions; or (b) a Sanctioned Person. Neither Borrower nor any of its Subsidiaries, directors, or officers, or, to the knowledge of Borrower, any of its employees, agents or Affiliates: (i) conducts any business or engages in any transaction or dealing with any Sanctioned Person, including making or receiving any contribution of funds, goods or services to or for the benefit of any Sanctioned Person; (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to any Sanctions; (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in
any Sanctions; or (iv) otherwise engages in any transaction that could cause Agent or any Lender to violate any Sanctions.
4.11 Certain Documents. Borrower has delivered to Agent a complete and correct copy of the Acquisition Documentation, including any amendments, supplements or modifications with respect to any of the foregoing. The Acquisition Agreement is the valid, binding and enforceable obligation of the parties thereto.
5 AFFIRMATIVE COVENANTS
Borrower shall do all of the following:
5.1 Use of Proceeds. Cause the proceeds of the Credit Extensions to be used solely (a) as working capital, (b) to finance the Acquisition, (c) repay in full Indebtedness of ISA to Comerica, or (d) to fund its general business purposes, and not for personal, family, household or agricultural purposes, and not in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any applicable anti-corruption law.
5.2 Government Compliance.
(a) Maintain its and all of its Subsidiaries’ legal existence (except as permitted under Section 6.3 with respect to Subsidiaries only) and good standing in their respective jurisdictions of formation and maintain qualification in each jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on Borrower’s business or operations. Borrower shall comply, and have each Subsidiary comply with all Applicable Law, except where the non-compliance with which could not reasonably be expected to have a material adverse effect on Borrower’s business or operations.
(b) Obtain all of the Governmental Approvals necessary for the performance by Borrower and each of its Subsidiaries of their obligations under the Loan Documents to which it is a party, including any grant of a security interest to Agent for the benefit of the Lenders in all of the Collateral. Upon the request of Agent, Borrower shall promptly provide copies of any such obtained Governmental Approvals to Agent.
5.3 Financial Statements, Reports, Statements. Deliver to Agent by submitting to the Financial Statement Repository, for Agent’s distribution to each Lender:
(a) Monthly Financial Statements. As soon as available, but no later than 30 days after the last day of each month, a company prepared consolidated balance sheet, income statement and cash flow statement covering Borrower’s consolidated operations for such month in a form reasonably acceptable to Agent;
(b) Compliance Statement. Within 30 days after the last day of each month and together with the statements set forth in Section 5.3(a), a duly completed Compliance Statement, confirming that as of the end of such month, Borrower was in full compliance with all of the terms and conditions of this Agreement, and setting forth calculations showing compliance with the financial covenants set forth in this Agreement and such other information as Agent may reasonably request;
(c) Annual Operating Budget and Financial Projections. Within the earlier of (i) 60 days after the end of each fiscal year of Parent and (ii) 60 days after the first Board meeting of each fiscal year of Parent, and within 10 days of any Board approved updates or amendments thereto, (A) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the current fiscal year of Parent, and (B) annual financial projections for the current fiscal year (on a quarterly basis), in each case as approved by the Board, together with any related business forecasts used in the preparation of such annual financial projections;
(d) Annual Audited Financial Statements. As soon as available, and in any event within 180 days following the end of Parent’s fiscal year, audited consolidated financial statements prepared under GAAP, consistently applied, together with an unqualified opinion (other than a “going concern” or like qualification or emphasis of matter based on the pending maturity of the Indebtedness under this Agreement and/or the Senior Loan
Agreement) on the financial statements from an independent certified public accounting firm reasonably acceptable to Agent; provided that, Grant Thornton LLP shall be considered acceptable to Agent;
(e) Accounts and Backlog Information Commencing with the statements to be delivered for the month ended February 28, 2026, within 30 days after the end of each month and together with the statements set forth in Section 5.3(a), (i) monthly accounts receivable agings, aged by invoice date, (ii) monthly accounts payable agings, aged by invoice date, and outstanding or held check registers, if any, and (iii) a backlog report in form and substance reasonably satisfactory to Agent;
(f) SEC Filings. In the event that Parent or any of its Subsidiaries becomes subject to the reporting requirements under the Exchange Act within five (5) Business Days of filing, notification of the filing and copies of all periodic and other reports, proxy statements and other materials filed by Parent and/or any of its Subsidiaries or any Guarantor with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange, or distributed to its shareholders, as the case may be. Documents required to be delivered pursuant to the terms hereof (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Parent or any of its Subsidiaries posts such documents, or provides a link thereto, on Parent’s or any of its Subsidiaries’ website on the internet at Parent’s or any of its Subsidiaries’ website address;
(g) Security Holder and Subordinated Debt Holder Reports. Within 5 Business Days of delivery, copies of all material statements, reports and notices made available to Parent’s security holders or to any holders of Subordinated Debt (solely in their capacities as security holders or holders of Subordinated Debt and not in any other role);
(h) Beneficial Ownership Information. Prompt written notice of any changes to the beneficial ownership information set out in Section 14 of the Perfection Certificate. Borrower understands and acknowledges that Agent and each Lender relies on such true, accurate and up-to-date beneficial ownership information to meet Agent’s and such Lender’s regulatory obligations to obtain, verify and record information about the beneficial owners of its legal entity customers;
(i) Legal Action Notice. Prompt written notice of any legal actions, investigations or proceedings pending or threatened in writing against Parent or any of its Subsidiaries that could reasonably be expected to result in damages or costs to Parent or any of its Subsidiaries of, individually or in the aggregate, $500,000 or more;
(j) Tort Claim Notice. If Borrower shall acquire a commercial tort claim with a value, individually or in the aggregate, in excess of $500,000, Borrower shall promptly notify Agent in a writing signed by Borrower of the general details thereof and grant to Agent for the benefit of the Lenders, in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to Agent;
(k) Government Filings. Within 5 Business Days after the same are sent or received, copies of all correspondence, reports, documents and other filings by Parent or any of its Subsidiaries with any Governmental Authority regarding compliance with or maintenance of Governmental Approvals or Applicable Law or that could reasonably be expected to have a material effect on any of the Governmental Approvals or otherwise on the business of Parent or any of its Subsidiaries;
(l) Registered Organization. If Borrower is not a Registered Organization as of the Effective Date but later becomes one, promptly notify Agent of such occurrence and provide Agent with Borrower’s organizational identification number;
(m) Default. Prompt written notice of the occurrence of a Default or Event of Default;
(n) Acquisition Documentation. Not later than 3 days prior to the effectiveness thereof, copies of substantially final drafts of any proposed, material amendment, supplement, waiver or other modification with respect to the Acquisition Documentation;
(o) Board Package and Decks. Within 15 days of submission to the Board, copies of each board package and deck that Parent provides and/or presents to its Board in connection with its regularly scheduled annual and quarterly meetings or otherwise; provided that, Parent may redact any information contained in such materials that is (i) subject to attorney-client privilege or other legal privilege, (ii) prohibited from being disclosed pursuant to Applicable Law or Borrower’s contractual obligations with a Person that is not an Affiliate of Borrower and not entered into to evade obligations hereunder, or (iii) so long as no Event of Default under Section 7.1 or 7.5 has occurred and is continuing, information or data subject to CUI (Controlled Unclassified Information) / ITAR (International Traffic in Arms Regulations) controls;
(p) Capitalization Table. Prior to an IPO, within 30 days after each fiscal year of Parent, a current capitalization table of Parent, in form and detail acceptable to Agent;
(q) 409A. Prior to an IPO, within 10 days after approval by the Board thereof, a copy of Borrower’s most recent 409A valuation report;
(r) Key Person. Within ten 10 Business Days following such departure, provide notice to Agent of any Key Person departing from or ceasing to be employed by Borrower; and
(s) Other Information. Promptly, from time to time, such other information regarding Borrower or any of its Subsidiaries or compliance with the terms of any Loan Documents as reasonably requested by Agent or any Lender.
Any submission by Borrower of a Compliance Statement or any other financial statement submitted to the Financial Statement Repository pursuant to this Section 5.3 or otherwise submitted to Agent shall be deemed to be a representation by Borrower that (i) as of the date of such Compliance Statement or other financial statement, the information and calculations set forth therein are true and correct, (ii) as of the end of the compliance period set forth in such submission, Borrower is in compliance with all required covenants except as noted in such Compliance Statement or other financial statement, as applicable, (iii) as of the date of such submission, no Events of Default have occurred or are continuing, except as noted in such Compliance Statement, (iv) all representations and warranties other than any representations or warranties that are made as of a specific date in Section 4 remain true and correct in all material respects as of the date of such submission except as noted in such Compliance Statement or other financial statement, as applicable, (v) as of the date of such submission, Borrower and each of its Subsidiaries has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 4.8, and (vi) as of the date of such submission, no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Agent.
Agent shall deliver to each Lender any materials or information delivered by Borrower to it in its capacity as Agent hereunder. In addition, Agent shall promptly deliver to each Lender any notices or other materials received by it indicating the occurrence or continuance of any Event of Default hereunder, in each case, to the extent such notices or materials are clearly marked as a “Notice of Default/Event of Default” or Agent has actual knowledge that such notices or other materials contain such information.
5.4 Taxes; Pensions.
(a) Timely file, and require each of its Subsidiaries to timely file (in each case, unless subject to a valid extension), all required tax returns and reports and timely pay, and require each of its Subsidiaries to timely pay, all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower and each of its Subsidiaries in excess of $100,000, except for deferred payment of any taxes contested pursuant to the terms of Section 4.8(a) hereof, and shall deliver to Agent, on demand, appropriate certificates attesting to such payments, and pay, and require each of its Subsidiaries to pay, all amounts necessary to fund all present pension, profit sharing and deferred compensation plans in accordance with their terms.
(b) To the extent Borrower or any of its Subsidiaries defers payment of any contested taxes, (i) notify Agent in writing of the commencement of, and any material development in, the proceedings, and (ii) post bonds or take any other steps required to prevent the Governmental Authority levying such contested taxes from obtaining a Lien upon any of the Collateral that is other than a “Permitted Lien.”
5.5 Access to Collateral; Books and Records. At reasonable times, on two (2) Business Days’ written notice (provided no notice is required if an Event of Default has occurred and is continuing), Agent, or its agents, shall have the right to inspect the Collateral and the right to audit and copy Borrower’s Books. Such inspections and audits shall be conducted no more often than once every 12 months, unless an Event of Default has occurred and is continuing, in which case such inspections and audits shall occur as often as Agent shall determine is necessary. The foregoing inspections and audits shall be conducted at Borrower’s expense and the charge therefor shall be $1,000.00 per person per day (or such higher amount as shall represent Agent’s then-current standard charge for the same), plus documented out-of-pocket expenses. In the event Borrower and Agent schedule an audit more than eight (8) days in advance, and Borrower cancels or reschedules the audit with less than eight (8) days written notice to Agent, then (without limiting any of Agent’s rights or remedies) Borrower shall pay Agent a fee of $2,000.00 plus any documented out-of-pocket expenses incurred by Agent to compensate Agent for the anticipated costs and expenses of the cancellation or rescheduling.
5.6 Insurance.
(a) Keep its business and the Collateral insured for risks and in amounts standard for companies in Parent’s industry and location and as Agent may reasonably request (including without limitation, cybersecurity insurance). Insurance policies shall be in a form, with financially sound and reputable insurance companies that are not Affiliates of Borrower, and in amounts standard for companies in Borrower’s industry and location.
(b) All property policies shall have a lender’s loss payable endorsement showing Agent as lender loss payee (or similar as reasonably acceptable to Agent). All liability policies shall show, or have endorsements showing, Agent as an additional insured. Agent shall be named as lender loss payee and/or additional insured with respect to any such insurance providing coverage in respect of any Collateral.
(c) Ensure that proceeds payable under any property policy are, at Agent’s option (subject to the Subordination Agreement), payable to Agent on account of the Obligations. Notwithstanding the foregoing, (i) so long as no Event of Default has occurred and is continuing, Borrower shall have the option of applying the proceeds of any casualty policy up to $500,000 individually with respect to any loss or in the aggregate for all losses under all casualty policies in any one year, toward the replacement or repair of destroyed or damaged property; provided that any such replaced or repaired property (A) shall be of equal or like value as the replaced or repaired Collateral and (B) shall be deemed Collateral in which Agent, for the benefit of the Lenders, has been granted a first priority security interest, and (ii) after the occurrence and during the continuance of an Event of Default, all proceeds payable under such casualty policy shall, at the option of Agent, be payable to Agent on account of the Obligations.
(d) At Agent’s request, Borrower shall deliver certified copies of insurance policies and evidence of all premium payments. Each provider of any such insurance required under this Section 5.6 shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to Agent, that it will give Agent 30 days (10 days’ for nonpayment of premium) prior written notice before any such policy or policies shall be canceled. Borrower shall provide notice to Bank on the next Compliance Statement delivered by Borrower to Agent if any of Borrower’s insurance policies are altered in any material respect or any new policies are opened. If Borrower fails to obtain insurance as required under this Section 5.6 or to pay any amount or furnish any required proof of payment to third persons and Agent, Agent may make all or part of such payment or obtain such insurance policies required in this Section 5.6, and take any action under the policies Agent deems prudent.
5.7 Accounts.
(a) Maintain Borrower’s, any of its Subsidiaries’, and any Guarantor’s primary banking relationship (including all United States-based operating accounts) with FCB or FCB’s Affiliates such that consolidated account balances of Borrower and its Subsidiaries and Guarantors maintained with FCB or FCB’s
Affiliates represent at least 75% of the aggregate Dollar Equivalent value of all cash and Cash Equivalents of Borrower and its Subsidiaries and Guarantors.
(b) Subject to Section 5.15, in addition to the foregoing, Borrower, any Subsidiary of Borrower and any Guarantor, shall obtain any business credit card, letter of credit and cash management services exclusively from FCB or FCB’s Affiliates.
(c) In addition to and without limiting the restrictions in (a), Borrower shall provide Agent 5 Business Days prior written notice before establishing any Collateral Account at or with any bank or financial institution other than FCB or its Affiliates. For each Collateral Account that Borrower at any time maintains, Borrower shall cause the applicable bank or financial institution (including, for the avoidance of doubt, Agent) at or with which any Collateral Account is maintained to execute and deliver a Control Agreement or other appropriate instrument with respect to such Collateral Account to perfect Agent’s Lien in such Collateral Account in accordance with the terms hereunder, which Control Agreement may not be terminated without the prior written consent of Agent. The provisions of the previous sentence shall not apply to (i) deposit accounts exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees and identified to Agent by Borrower as such; provided, however, that the funds on deposit in such deposit accounts will at no time exceed the actual payroll, payroll taxes, withholding taxes and other employee wage and benefit payments then owing for the immediately succeeding payroll period (or greater amount to the extent required by Applicable Law), (ii) deposit accounts holding less than $500,000 in the aggregate amongst all such accounts, (iii) those deposit accounts maintained with FCB ending x1253, x9466, and x9100 securing those certain letters of credit issued by FCB identified as numbers 001100442795, 001100545359, and 001100545590 for so long as such accounts are securing such letters of credit, provided that the funds in such account shall not exceed the lesser of $4,587,194.75 (excluding interest, if any, thereon) and 105.0% of the aggregate face amounts of such letters of credit at any time, and (iv) that certain Securities Account maintained with SVB Asset Management identified as account number ending 2159 (the “SAM Account”) until, in this case of this clause (iv), such time as Borrower’s Indebtedness to Senior Lender under the Senior Loan Agreement is paid in full, all commitments to lender under Senior Loan Agreement have expired or been terminated, and the Senior Loan Agreement has been terminated (other than provisions which, by their terms, are to survive the termination of the Senior Loan Agreement).
5.8 Financial Covenant. Maintain at all times, certified to Agent as of the last day of each month, unrestricted and unencumbered (excluding Liens arising under this Agreement and Liens permitted pursuant to clauses (j) or (n) of the definition of Permitted Liens) cash and Cash Equivalents of Borrower with FCB or FCB’s Affiliates subject to a Control Agreement in favor of Agent (subject to the time period set forth in Section 5.15(f)), for the benefit of the Lenders (except that cash and Cash Equivalents held in the SAM Account may be included in foregoing calculation without such a Control Agreement until such time that a Control Agreement is required pursuant to Section 5.7(c)), in accordance with this Agreement of at least $10,000,000.
5.9 Protection and Registration of Intellectual Property Rights.
(a) (i) Use commercially reasonable efforts to protect, defend and maintain the validity and enforceability of Borrower’s and each Subsidiary’s Intellectual Property, except to the extent that such failure to do so would not reasonably be expected to have a material adverse effect on Borrower’s business or operations; (ii) promptly (and in any event no later than each month at the time of then-next Compliance Statement delivered pursuant to Section 5.3(b)) advise Agent in writing of infringements or any other event that could reasonably be expected to materially and adversely affect the value Borrower’s and each Subsidiary’s Intellectual Property; and (iii) not allow any Intellectual Property material to Borrower’s or any Subsidiary’s business to be abandoned, forfeited or dedicated to the public without Agent’s written consent.
(b) If Borrower (i) obtains any Patent, registered Trademark, registered Copyright, registered mask work, or any pending application for any of the foregoing, whether as owner, licensee or otherwise, or (ii) applies for any Patent or the registration of any Trademark, then Borrower shall promptly provide written notice thereof to Agent (and in any event no later than in connection with the then-next Compliance Statement required to be delivered hereunder) and shall execute such intellectual property security agreements and other documents and take such other actions as Agent may request in its commercially reasonable discretion to perfect and maintain a first priority perfected security interest in favor of Agent in such property within five (5) Business Days of such request. If Borrower intends
to register any Copyrights or mask works in the United States Copyright Office, Borrower shall: (x) provide Agent with at least 15 Business Days prior written notice of Borrower’s registration of such Copyrights or mask works together with a copy of the application it intends to file with the United States Copyright Office (excluding exhibits thereto); (y) prior to the date of registration of the Copyrights or mask works described in (x), execute an intellectual property security agreement and such other documents and take such other actions as Agent may request in its commercially reasonable discretion to perfect and maintain a first priority perfected security interest in favor of Agent in such Copyrights or mask works; and (z) record such intellectual property security agreement with the United States Copyright Office contemporaneously with filing the Copyright or mask work application(s) with the United States Copyright Office. Borrower shall promptly provide to Agent copies of all applications that it files for Patents or for the registration of Trademarks, Copyrights or mask works, together with evidence of the recording of the intellectual property security agreement required for Agent to perfect and maintain a first priority perfected security interest in such property.
(c) Provide written notice to Agent within 30 days of entering or becoming bound by any Restricted License. Borrower shall take such commercially reasonable steps as Agent requests to obtain the consent of, or waiver by, any person whose consent or waiver is necessary for (i) any such Restricted License to be deemed “Collateral” and for Agent to have a security interest in it that might otherwise be restricted or prohibited by law or by the terms of any such Restricted License, whether now existing or entered into in the future, and (ii) Agent to have the ability in the event of a liquidation of any Collateral to dispose of such Collateral in accordance with Agent’s and the Lender’s rights and remedies under this Agreement and the other Loan Documents.
5.10 Litigation Cooperation. From the date hereof and continuing through the termination of this Agreement, make available to Agent, without expense to Agent, Borrower and its officers, employees and agents and Borrower’s books and records, to the extent that Agent may deem them reasonably necessary to prosecute or defend any third-party suit or proceeding instituted by or against Agent or the Lenders with respect to any Collateral or relating to Borrower; provided that Borrower shall not be required to provide access to materials constituting a privileged communication.
5.11 Formation or Acquisition of Subsidiaries. Notwithstanding and without limiting the negative covenants contained in Sections 6.3 and 6.7 hereof, within 15 days after Borrower or any Guarantor forms any Subsidiary or acquires any Subsidiary after the Effective Date (including, without limitation, pursuant to a Division), Borrower and such Guarantor shall (a) cause such new Subsidiary to provide to Agent a joinder to this Agreement to become a co-borrower hereunder or a guaranty to become a Guarantor hereunder (as determined by Agent in its commercially reasonable discretion following consultation with the Lenders), together with documentation, all in form and substance reasonably satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary), (b) provide to Agent or Senior Lender, as applicable, appropriate certificates and powers and financing statements, pledging all of the direct or beneficial ownership interest in such Subsidiary, in form and substance reasonably satisfactory to Agent; and (c) provide to Agent all other documentation in form and substance reasonably satisfactory to Agent, including one or more opinions of counsel satisfactory to Agent, which in its opinion is appropriate with respect to the execution and delivery of the applicable documentation referred to above. Any document, agreement, or instrument executed or issued pursuant to this Section 5.11 shall be a Loan Document.
5.12 Inventory; Returns. Keep all Inventory in good and marketable condition, free from material defects. Returns and allowances between Borrower and its Account Debtors shall follow Borrower’s customary practices as they exist at the Effective Date. Borrower shall promptly notify Agent of all returns, recoveries, disputes and claims that involve more than $200,000.
5.13 Further Assurances. Execute any further instruments and take such further action as Agent reasonably requests to perfect, protect, ensure the priority of or continue Bank’s Lien on the Collateral or to effect the purposes of this Agreement.
5.14 Sanctions. (a) Not, and not permit any of its Subsidiaries to, engage in any of the activities described in Section 4.10 in the future; (b) not, and not permit any of its Subsidiaries to, become a Sanctioned Person; (c) ensure that the proceeds of the Obligations are not used to violate any Sanctions; and (d) deliver to Agent any certification or other evidence requested from time to time by Agent in its sole discretion, confirming each such
Person’s compliance with this Section 5.14. In addition, have implemented, and will consistently apply while this Agreement is in effect, procedures to ensure that the representations and warranties in Section 4.10 remain true and correct while this Agreement is in effect.
5.15 Post-Closing Matters. Deliver to Agent or Senior Lender, as applicable, each of the following, in form and substance reasonably acceptable to Agent within the time periods set forth below (or such longer periods as agreed to by Agent in its sole discretion):
(a) within 10 Business Days of the Effective Date, any certificates or other instruments representing or evidencing any Borrower’s equity interests in its Subsidiaries, accompanied by appropriate duly executed instruments of transfer or assignment (including, without limitation, stock powers and irrevocable proxies) in blank;
(b) within 30 days of the Effective Date, duly executed Control Agreements pertaining to accounts of Borrower maintained with Citibank, Comerica and PNC Bank;
(c) within 30 days of the Effective Date, Agent shall have received insurance certificates and endorsements satisfying the requirements of Section 5.6, in form and substance reasonably satisfactory to Agent;
(d) Borrower shall use commercially reasonable efforts to provide, within thirty 45 days of the Effective Date, Agent with duly executed landlord’s consents in favor of Agent for the principal place of business of each Borrower and for each of Borrower’s leased locations containing in excess of $750,000 of Borrower’s assets or property, by the respective landlord thereof;
(e) within 90 days of the Effective Date, ISA shall maintain all business credit card, letter of credit and other cash management services exclusively with FCB or FCB’s Affiliates;
(f) within fifteen (15) Business Days of the Effective Date, duly executed Control Agreements pertaining to accounts of Borrower maintained with FCB; and
(g) within fifteen (15) days of the Effective Date:
(i) a duly executed joinder agreement to the Loan Documents pursuant to which, among other things, ISA shall become a co-borrower hereunder;
(ii) a duly executed intellectual property security agreement;
(iii) a legal opinion of ISA’s counsel;
(iv) a certificate duly executed by a Responsible Officer or secretary of ISA with respect to ISA attaching: (A) Operating Documents and (B) Borrowing Resolutions, and (C) long-form good standing certificates of ISA certified by the Secretary of State of the State of Texas and the Secretary of State (or equivalent agency) of each other jurisdiction in which Borrower is qualified to conduct business, in each case as of a date no earlier than 30 days prior to the date of joinder;
(v) certified copies, dated as of a recent date, of searches for financing statements filed in the central filing office of the State of Texas, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements constitute Permitted Liens, and Intellectual Property search results and completed exhibits to the intellectual property security agreement; and
(vi) all documentation and other information requested by Agent or a Lender (including beneficial ownership information) in connection with applicable “know your
customer” and anti-money-laundering rules and regulations, including the USA Patriot Act, and Borrower shall have satisfied all requirements related thereto.
6 NEGATIVE COVENANTS
Borrower shall not do any of the following without the prior written consent of Agent, as directed by the Lenders in accordance with Section 12.6 hereof:
6.1 Dispositions. Convey, sell, lease, transfer, assign, or otherwise dispose of (including, without limitation, pursuant to a Division) (collectively, “Transfer”), or permit any of its Subsidiaries to Transfer, all or any part of its business or property, except for Transfers (a) of Inventory in the ordinary course of business; (b) of worn-out, surplus or obsolete Equipment that is, in the reasonable judgment of Borrower, no longer economically practicable to maintain or useful in the ordinary course of business of Borrower; (c) consisting of Permitted Liens and Permitted Investments; (d) consisting of the sale or issuance of any stock, partnership, membership, or other ownership interest or other equity securities of Borrower not prohibited under Section 6.2 of this Agreement; (e) consisting of Borrower’s or its Subsidiaries’ use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents; (f) of non-exclusive licenses for the use of the property of Borrower or its Subsidiaries in the ordinary course of business; (g) consisting of the one-time sale, for fair market value, of ISA’s commercial property business line; provided that (i) at the time of any such Transfer, no Event of Default shall have occurred and be continuing or would result therefrom, (ii) such Transfer shall occur within 360 days after the Effective Date, (iii) Borrower shall be in compliance with Section 5.8 immediately after giving pro forma effect to such Transfer, (iv) at least 75% of the fair market value of the consideration received by Borrower for such Transfer shall be received by Borrower upon consummation of the such Transfer and shall be in the form of cash or Cash Equivalents, and (v) such line of business shall have generated less than 5.0% of Parent’s pro forma consolidated revenue, determined in accordance with GAAP, for the most recent 4 fiscal quarter period ending prior to such Transfer for which financial statements have been (or were required to have been) delivered to Agent; and (h) of other non-material assets not to exceed $200,000 in the aggregate per fiscal year.
6.2 Changes in Business, Management, Control, or Business Locations. (a) Engage in or permit any of its Subsidiaries to engage in any business other than the businesses currently engaged in by Borrower and such Subsidiary, as applicable, or reasonably related or incidental thereto; (b) liquidate or dissolve or permit any of its Subsidiaries to liquidate or dissolve; (c) permit, allow or suffer to occur any Change in Control; or (d) without at least 10 days prior written notice to Agent, (i) add any new offices or business locations, including warehouses (unless such new offices or business locations contain less than $750,000 in Borrower’s assets or property) or deliver any portion of the Collateral valued, individually or in the aggregate, in excess of $750,000 to a bailee at a location other than to a bailee and at a location already disclosed in the Perfection Certificate, (ii) change its jurisdiction of organization, (iii) change its organizational structure or type, (iv) change its legal name, or (v) change any organizational number (if any) assigned by its jurisdiction of organization. If Borrower intends to add any new offices or business locations, including warehouses, containing in excess of $750,000 of Borrower’s assets or property, then Borrower will use commercially reasonable efforts to cause the landlord of any such new offices or business locations, including warehouses, to execute and deliver a landlord consent in form and substance satisfactory to Agent. If Borrower intends to deliver any portion of the Collateral valued, individually or in the aggregate, in excess of $750,000 to a bailee, and Agent and such bailee are not already parties to a bailee agreement governing both the Collateral and the location to which Borrower intends to deliver the Collateral, then Borrower will use commercially reasonable efforts to cause such bailee to execute and deliver a bailee agreement in form and substance reasonably satisfactory to Agent.
6.3 Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with any other Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the stock, partnership, membership, or other ownership interest or other equity securities or property of another Person (including, without limitation, by the formation of any Subsidiary or pursuant to a Division) other than Permitted Acquisitions. A Subsidiary may merge or consolidate into another Subsidiary or into Borrower or Guarantor; provided that, in a merger or consolidation involving a Guarantor or Borrower, such Guarantor or Borrower is the surviving entity; provided further that, in a merger or consolidation between a Guarantor and Borrower, Borrower is the surviving entity.
6.4 Indebtedness. Create, incur, assume, or be liable for any Indebtedness, or permit any Subsidiary to do so, other than Permitted Indebtedness. Further, notwithstanding the foregoing or anything set forth herein, Borrower shall not create, incur, assume, or be liable for any Permitted Indebtedness, or permit any Subsidiary to do so, to the extent prohibited by Borrower’s or such Subsidiary’s Operating Documents.
6.5 Encumbrance. Create, incur, allow, or suffer to exist any Lien on any of its property, or assign or convey any right to receive income, including the sale of any Accounts, or permit any of its Subsidiaries to do so, except for Permitted Liens, permit any Collateral not to be subject to the first priority security interest granted herein (subject only to Permitted Liens that are permitted pursuant to the terms of this Agreement to have superior priority to Agent’s Lien in this Agreement), or enter into any agreement, document, instrument or other arrangement (except with or in favor of Agent) with any Person which directly or indirectly prohibits or has the effect of prohibiting Borrower or any Subsidiary from assigning, mortgaging, pledging, granting a security interest in or upon, or encumbering any of Borrower’s or any Subsidiary’s Intellectual Property, except (a) as is otherwise permitted in Section 6.1 hereof and the definition of “Permitted Liens” herein, (b) customary restrictions on assignment, transfer and encumbrances in license agreements under which Borrower or a Subsidiary is the licensee, and (c) covenants with such restrictions in contracts of sale or merger or acquisition agreements, provided that in the case of this clause (c), (i) such covenants do not prohibit or restrict Borrower from granting a security interest in Borrower’s or any Subsidiary’s Intellectual Property in favor of Agent and (ii) the counter-parties to such covenants are not permitted to receive or obtain a security interest in Borrower’s Intellectual Property or any Collateral.
6.6 Maintenance of Collateral Accounts. Maintain any Collateral Account except pursuant to the terms of Section 5.7(c). In addition, neither Borrower nor any of its Subsidiaries shall maintain any accounts or sub- accounts in connection with an insured cash sweep program, except with respect to which Agent has a Control Agreement over the master account on terms and conditions satisfactory to the Agent in its discretion and such master account is maintained with FCB.
6.7 Distributions; Investments; Deferred Payments. (a) Pay any dividends or make any distribution or payment or redeem, retire or purchase any stock, partnership, membership, or other ownership interest or other equity securities provided that Borrower may (i) convert any of its convertible securities into other securities pursuant to the terms of such convertible securities or otherwise in exchange thereof, (ii) pay dividends solely in common stock, (iii) repurchase the stock, partnership, membership, or other ownership interest or other equity securities of former employees, officers, directors or consultants pursuant to stock repurchase agreements so long as an Event of Default does not exist at the time of any such repurchase and would not exist after giving effect to any such repurchase, provided that the aggregate amount of all such repurchases does not exceed $200,000 per fiscal year, (iv) make cash payments in lieu of fractional shares upon conversion of convertible securities or upon any stock split or consolidation, in amount not to exceed $50,000 in the aggregate, and (v) pay any dividends or make any distribution or payment or redeem, retire or purchase any stock, partnership, membership, or other ownership interest or other equity securities with the identifiable cash proceeds of the Series E Equity Financing (excluding Disqualified Stock), in each case under this clause (v) on or before February 28, 2026 in accordance with the sources and uses delivered to the Lenders prior to the Effective Date; (b) directly or indirectly make any Investment (including, without limitation, by the formation of any Subsidiary) other than Permitted Investments, or permit any of its Subsidiaries to do so; or (c) make earn-out payments, payments in respect of seller debt or holdbacks, or deferred purchase price payments in connection with a Permitted Acquisition unless (i) no Event of Default shall have occurred and be continuing or would result from such payment, (ii) Borrower shall be in compliance with Section 5.8 immediately after giving pro forma effect to such payment, and (iii) such payment shall be permitted by any applicable subordination agreement, if any.
6.8 Transactions with Affiliates. Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower, except for (i) transactions that are in the ordinary course of Borrower’s business, upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arm’s length transaction with a non-affiliated Person, (ii) Subordinated Debt or equity investments (not prohibited by Section 6.2 and excluding equity investments in Disqualified Stock) by Borrower’s existing investors, (iii) reasonable and customary compensation arrangements as approved by the Board or relevant board of directors, board of managers or equivalent governing body; and (iv) transactions of the type described in and permitted to be between Affiliates under Section 6.7 of this Agreement.
6.9 Subordinated Debt. Except as expressly permitted under the terms of the subordination, intercreditor, or other similar agreement to which any Subordinated Debt is subject: (a) make or permit any payment on such Subordinated Debt; or (b) amend any provision in any document relating to such Subordinated Debt which would increase the amount thereof, provide for earlier or greater principal, interest, or other payments thereon, or adversely affect the subordination thereof to Obligations owed to Agent and the Lenders.
6.10 Compliance. (a) Become an “investment company” or a company controlled by an “investment company”, under the Investment Company Act of 1940, as amended, or undertake as one of its important activities extending credit to purchase or carry margin stock (as defined in Regulation U of the Board of Governors of the Federal Reserve System), or use the proceeds of any Credit Extension for that purpose; (b)(i) fail to meet the minimum funding requirements of ERISA, (ii) permit a Reportable Event or Prohibited Transaction, as defined in ERISA, to occur, (iii) fail to comply with the Federal Fair Labor Standards Act or (iv) violate any other law or regulation, if the foregoing subclauses (i) through (iv), individually or in the aggregate, could reasonably be expected to have a material adverse effect on Borrower’s business or operations, or permit any of its Subsidiaries to do so; or (c) withdraw or permit any Subsidiary to withdraw from participation in, permit partial or complete termination of, or permit the occurrence of any other event with respect to, any present pension, profit sharing and deferred compensation plan which could reasonably be expected to result in any liability of Borrower, including any liability to the Pension Benefit Guaranty Corporation or its successors or any other Governmental Authority.
6.11 Amendments to Acquisition Documentation. (a) Amend, supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and conditions of the indemnities and licenses furnished to Borrower or its Subsidiaries pursuant to the Acquisition Documentation such that after giving effect thereto such indemnities or licenses shall be materially less favorable to the interests of Borrower, any Guarantor or Agent with respect thereto; (b) otherwise amend, supplement or otherwise modify the terms and conditions of the Acquisition Documentation or any such other documents except for any such amendment, supplement or modification that could not reasonably be expected to have a Material Adverse Change; or (c) fail to enforce, in a commercially reasonable manner, the material rights of Borrower or any Guarantor (including rights to indemnification) under the Acquisition Documentation.
6.12 Digital Assets. Own, hold, acquire, mine, or make any direct investment in any Digital Asset or indirect investment designed to give investors exposure to Digital Assets or the performance thereof, nor shall Borrower permit any of its Subsidiaries to do so.
7 EVENTS OF DEFAULT
Any one of the following shall constitute an event of default (an “Event of Default”) under this Agreement:
7.1 Payment Default. Borrower fails to (a) make any payment of principal or interest on any Credit Extension on its due date, or (b) pay any other Obligations within three (3) Business Days after such Obligations are due and payable (which three (3) Business Day cure period shall not apply to payments due on the Term Loan Maturity Date). During the cure period, the failure to make or pay any payment specified under clause (b) hereunder is not an Event of Default (but no Credit Extension will be made during the cure period);
7.2 Covenant Default.
(a) Borrower fails or neglects to perform any obligation in Section 5 (other than Sections 5.2 (Government Compliance), clauses (c), (g), (n)-(q), and (s) of 5.3 (Financial Statements, Reports 5.10 (Litigation Cooperation), 5.12 (Inventory; Returns) and 5.13 (Further Assurances)) or violates any covenant in Section 6; or
(b) Borrower fails or neglects to perform, keep, or observe any other term, provision, condition, covenant or agreement contained in this Agreement or any Loan Documents, and as to any default (other than those specified in this Section 7) under such other term, provision, condition, covenant or agreement that can be cured, has failed to cure the default within ten (10) days after the occurrence thereof; provided, however, that if the default cannot by its nature be cured within the ten (10) day period or cannot after diligent attempts by Borrower be cured within such ten (10) day period, and such default is likely to be cured within a reasonable time, then Borrower shall have an additional period (which shall not in any case exceed 30 days) to attempt to cure such default, and within
such reasonable time period the failure to cure the default shall not be deemed an Event of Default (but no Credit Extensions shall be made during such cure period). Cure periods provided under this section shall not apply, among other things, to financial covenants or any other covenants that are required to be satisfied, completed or tested by a date certain or any covenants set forth in clause (a) above;
7.3 Material Adverse Change. A Material Adverse Change occurs;
7.4 Attachment; Levy; Restraint on Business.
(a) (i) The service of process seeking to attach, by trustee or similar process, any funds of Borrower or any Subsidiary in excess of $200,000, or (ii) a notice of lien or levy is filed against any of Borrower’s or any of its Subsidiaries’ assets by any Governmental Authority, and the same under subclauses (i) and (ii) hereof are not, within ten (10) days after the occurrence thereof, discharged or stayed (whether through the posting of a bond or otherwise); provided, however, no Credit Extensions shall be made during any ten (10) day cure period; or
(b) (i) any material portion of Borrower’s or any of its Subsidiaries’ assets is attached, seized, levied on, or comes into possession of a trustee or receiver, or (ii) any court order enjoins, restrains, or prevents Borrower or any of its Subsidiaries from conducting all or any material part of its business;
7.5 Insolvency. (a) Borrower or any of its Subsidiaries is unable to pay its debts (including trade debts) as they become due or otherwise becomes insolvent; (b) Borrower or any of its Subsidiaries begins an Insolvency Proceeding; or (c) an Insolvency Proceeding is begun against Borrower or any of its Subsidiaries and is not dismissed or stayed within 30 days (but no Credit Extensions shall be made while any of the conditions described in clause (a) exist or until any Insolvency Proceeding is dismissed);
7.6 Other Agreements. There is, under any agreement to which Borrower, any of Borrower’s Subsidiaries, or any Guarantor is a party with a third party or parties (excluding, for the avoidance of doubt, the Senior Loan Agreement), (a) any default resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount individually or in the aggregate in excess of $500,000; or (b) any breach or default by Borrower, any of Borrower’s Subsidiaries, or any Guarantor, the result of which could reasonably be expected to have a material adverse effect on Borrower’s, any of Borrower’s Subsidiaries’, or any Guarantor’s business or operations; provided, however, that the Event of Default under this Section 7.6 caused by the occurrence of a breach or default under such other agreement shall be cured or waived for purposes of this Agreement upon Agent receiving written notice from the party asserting such breach or default of such cure or waiver of the breach or default under such other agreement, if at the time of such cure or waiver under such other agreement (x) Agent has not declared an Event of Default under this Agreement and/or exercised any rights with respect thereto; (y) any such cure or waiver does not result in an Event of Default under any other provision of this Agreement or any Loan Document; and (z) in connection with any such cure or waiver under such other agreement, the terms of any agreement with such third party are not modified or amended in any manner which could in the commercially reasonable judgment of Agent be materially less advantageous to Borrower or any Guarantor;
7.7 Judgments; Penalties. One or more fines, penalties or final judgments, orders or decrees for the payment of money in an amount, individually or in the aggregate, or litigation or other dispute resolution settlement payments by Borrower or any of its Subsidiaries, of at least $500,000 (not covered by independent third-party insurance as to which liability has been accepted by such insurance carrier) shall be rendered against Borrower or any of its Subsidiaries by any Governmental Authority, and the same are not, within 30 days after the entry, assessment or issuance thereof, discharged, or after execution thereof, or stayed pending appeal, or such judgments are not discharged prior to the expiration of any such stay (provided that no Credit Extensions will be made prior to the discharge, or stay of such fine, penalty, judgment, order or decree);
7.8 Misrepresentations. Borrower or any of its Subsidiaries or any Person acting for Borrower or any of its Subsidiaries makes any representation, warranty, or other statement now or later in this Agreement, any Loan Document or in any writing delivered to Agent or the Lenders in connection with this Agreement or any other Loan Document or to induce Agent or the Lenders to enter this Agreement or any Loan Document, and such representation, warranty, or other statement is incorrect in any material respect when made (it being agreed and acknowledged by Agent and the Lenders that the projections and forecasts provided by Borrower or any of its Subsidiaries in good faith
and based upon reasonable assumptions are not viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results);
7.9 Subordinated Debt. If: (a) any document, instrument, or agreement evidencing any Subordinated Debt shall for any reason be revoked or invalidated or otherwise cease to be in full force and effect (except in accordance with its terms), or any Person (other than Agent) shall be in breach thereof or contest in any manner the validity or enforceability thereof or deny that it has any further liability or obligation thereunder; (b) a default or event of default (however defined) has occurred under any document, instrument, or agreement evidencing any Subordinated Debt, which default shall not have been cured or waived within any applicable grace period; or (c) the Obligations shall for any reason be subordinated or shall not have the priority contemplated by this Agreement or any applicable subordination or intercreditor agreement;
7.10 Lien Priority. There is a material impairment in the perfection or priority of Agent’s security interest in the Collateral;
7.11 Guaranty. (a) Any guaranty of any Obligations terminates or ceases for any reason to be in full force and effect; (b) any Guarantor does not perform any obligation or covenant under any guaranty of the Obligations; (c) any circumstance described in Sections 7.3, 7.4, 7.5, 7.6, 7.7, or 7.8 of this Agreement occurs with respect to any Guarantor, (d) the death, liquidation, winding up, or termination of existence of any Guarantor; or (e)(i) a material impairment in the perfection or priority of Agent’s Lien in the collateral provided by Guarantor or in the value of such collateral or (ii) a material adverse change in the general affairs, management, results of operation, condition (financial or otherwise) or the prospect of repayment of the Obligations occurs with respect to any Guarantor; or
7.12 Governmental Approvals. Any material Governmental Approval shall have been (a) revoked, rescinded, suspended, modified in a materially adverse manner or not renewed in the ordinary course for a full term or (b) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of such Governmental Approval or that could reasonably be expected to result in the Governmental Authority taking any of the actions described in clause (a) above, and such decision or such revocation, rescission, suspension, modification or non-renewal (i) causes, or could reasonably be expected to cause, a Material Adverse Change, or (ii) materially adversely affects the legal qualifications of Borrower or any of its Subsidiaries to hold such Governmental Approval in any applicable jurisdiction and such revocation, rescission, suspension, modification or non-renewal could reasonably be expected to materially adversely affect the status of or legal qualifications of Borrower or any of its Subsidiaries to hold any Governmental Approval in any other jurisdiction.
8 RIGHTS AND REMEDIES
8.1 Rights and Remedies. Subject to the Subordination Agreement, upon the occurrence and during the continuance of an Event of Default, Agent may, or as directed by Required Lenders, shall, without notice or demand, do any or all of the following:
(a) declare all Obligations immediately due and payable (but if an Event of Default described in Section 7.5 occurs all Obligations are immediately due and payable without any action by Agent or any Lender);
(b) stop advancing money or extending credit for Borrower’s benefit under this Agreement or under any other agreement between Borrower and Agent or any Lender;
(c) demand that Borrower (i) deposit cash with FCB in an amount equal to at least (A) 105.0% of the aggregate face amount of any Letters of Credit denominated in Dollars remaining undrawn, and (B) 110.0% of the Dollar Equivalent of the aggregate face amount of any Letters of Credit denominated in a Foreign Currency remaining undrawn (plus, in each case, all interest, fees, and costs due or estimated by FCB in its commercially reasonable discretion to become due in connection therewith), to secure all of the Obligations relating to such Letters of Credit, as collateral security for the repayment of any future drawings under such Letters of Credit, and Borrower shall forthwith deposit and pay such amounts, and (ii) pay in advance all letter of credit fees scheduled to be paid or payable over the remaining term of any Letters of Credit;
(d) terminate any FX Contracts (it being understood and agreed that (i) neither Agent nor any Lender is obligated to deliver the currency which Borrower has contracted to receive under any FX Contract, and Agent or any Lender may cover its exposure for any FX Contracts by purchasing or selling currency in the interbank market as Agent or such Lender deems appropriate; (ii) Borrower shall be liable for all losses, damages, costs, margin obligations and expenses incurred by Agent or such Lender arising from Borrower’s failure to satisfy its obligations under any FX Contract or the execution of any FX Contract; and (iii) neither Agent nor any Lender shall not be liable to Borrower for any gain in value of a FX Contract that Agent or such Lender may obtain in covering Borrower’s breach);
(e) verify the amount of, demand payment of and performance under, and collect any Accounts and General Intangibles, settle or adjust disputes and claims directly with Account Debtors for amounts on terms and in any order that Agent considers advisable, and notify any Person owing Borrower money of Agent’s security interest in such funds;
(f) make any payments and do any acts it considers necessary or reasonable to protect the Collateral and/or its security interest in the Collateral. Borrower shall assemble the Collateral if Agent requests and make it available as Agent designates. Agent may enter premises where the Collateral is located, take and maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any Lien which appears to be prior or superior to its security interest and pay all expenses incurred. Borrower grants Agent a license to enter and occupy any of its premises, without charge, to exercise any of Agent’s and the Lenders’ rights or remedies;
(g) apply to the Obligations any (i) balances and deposits of Borrower it holds, or (ii) amount held by Agent, the Lenders, or Agent’s or Lenders’ Affiliates owing to or for the credit or the account of Borrower;
(h) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell the Collateral. For use solely upon the occurrence and during the continuation of an Event of Default, Agent is hereby granted a non-exclusive, royalty-free license or other right to use, without charge, Borrower’s labels, Patents, Copyrights, mask works, rights of use of any name, trade secrets, trade names, Trademarks, and advertising matter, or any similar property as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Agent’s and the Lenders’ exercise of their rights under this Section 8.1, Borrower’s rights under all licenses and all franchise agreements inure to Agent, for the benefit of the Lenders;
(i) place a “hold” on any account maintained with Agent or any Lender and/or deliver a notice of exclusive control, any entitlement order, or other directions or instructions pursuant to any Control Agreement or similar agreements providing control of any Collateral;
(j) demand and receive possession of Borrower’s Books; and
(k) exercise all rights and remedies available to Agent and the Lenders under the Loan Documents or at law or equity, including all remedies provided under the Code or any Applicable Law (including disposal of the Collateral pursuant to the terms thereof).
8.2 Power of Attorney. Borrower hereby irrevocably appoints Agent as its true and lawful attorney-in-fact, (a) exercisable upon the occurrence and during the continuance of an Event of Default, to: (i) endorse Borrower’s name on any checks, payment instruments, or other forms of payment or security; (ii) sign Borrower’s name on any invoice or bill of lading for any Account or drafts against Account Debtors; (iii) demand, collect, sue, and give releases to any Account Debtor for monies due, settle and adjust disputes and claims about the Accounts directly with Account Debtors, and compromise, prosecute, or defend any action, claim, case, or proceeding about any Collateral (including filing a claim or voting a claim in any bankruptcy case in Agent’s or Borrower’s name, as Agent chooses); (iv) make, settle, and adjust all claims under Borrower’s insurance policies; (v) pay, contest or settle any Lien, charge, encumbrance, security interest, or other claim in or to the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge the same; and (vi) transfer the Collateral into the name of Agent or a third party as the Code permits; and (b) regardless of whether an Event of Default has occurred, to: (i) sign Borrower’s name on and submit the documentation required under the Federal Assignment of Claims Act of 1940, as amended, to the government of the United States seeking approval of the novation or assignment of each contract relating to Borrower’s Accounts owing from an Account Debtor which is a United States government entity or any
department, agency, or instrumentality thereof; and (ii) sign Borrower’s name on any documents necessary to perfect or continue the perfection of Agent’s security interest in the Collateral. Agent’s foregoing appointment as Borrower’s attorney in fact, and all of Agent’s rights and powers, coupled with an interest, are irrevocable until such time as all Obligations (other than inchoate indemnity obligations, and any other obligations which, by their terms, are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3 of this Agreement) have been satisfied in full, Agent and the Lenders are under no further obligation to make Credit Extensions and the Loan Documents have been terminated. Agent shall not incur any liability in connection with or arising from the exercise of such power of attorney and shall have no obligation to exercise any of the foregoing rights and remedies.
8.3 Protective Payments. If Borrower fails to obtain the insurance called for by Section 5.6 or fails to pay any premium thereon or fails to pay any other amount which Borrower is obligated to pay under this Agreement or any other Loan Document or which may be required to preserve the Collateral, Agent may obtain such insurance or make such payment, and all amounts so paid by Agent are Lender Expenses and immediately due and payable, bearing interest at the then highest rate applicable to the Obligations, and secured by the Collateral. Agent will make reasonable efforts to provide Borrower with notice of Agent obtaining such insurance at the time it is obtained or within a reasonable time thereafter. No payments by Agent are deemed an agreement to make similar payments in the future or Agent’s or any Lender’s waiver of any Event of Default.
8.4 Application of Payments and Proceeds. If an Event of Default has occurred and is continuing, Agent may apply any funds in its possession, whether from Borrower account balances, payments, proceeds realized as the result of any collection of Accounts or other disposition of the Collateral, or otherwise, to the Obligations in such order as Agent shall determine in its sole discretion. Any surplus shall be paid to Borrower or other Persons legally entitled thereto; Borrower shall remain liable to Agent and the Lenders for any deficiency. If Agent, in its commercially reasonable discretion, directly or indirectly, enters into a deferred payment or other credit transaction with any purchaser at any sale of Collateral, Agent shall have the option, exercisable at any time, of either reducing the Obligations by the principal amount of the purchase price or deferring the reduction of the Obligations until the actual receipt by Agent of cash therefor.
8.5 Liability for Collateral. Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession or under its control, under Section 9-207 of the Code or otherwise, shall be to deal with it in the same manner as Agent deals with its own property consisting of similar instruments or interests. Borrower bears all risk of loss, damage or destruction of the Collateral.
8.6 No Waiver; Remedies Cumulative. Agent’s and any Lender’s failure, at any time or times, to require strict performance by Borrower of any provision of this Agreement or any other Loan Document shall not waive, affect, or diminish any right of Agent and the Lenders thereafter to demand strict performance and compliance herewith or therewith. No waiver hereunder shall be effective unless signed by the party granting the waiver and then is only effective for the specific instance and purpose for which it is given. Agent’s and the Lenders’ rights and remedies under this Agreement and the other Loan Documents are cumulative. Agent and each Lender has all rights and remedies provided under the Code, by law, or in equity. Agent’s and the Lenders’ exercise of one right or remedy is not an election and shall not preclude Agent and the Lenders from exercising any other remedy under this Agreement or other remedy available at law or in equity, and Agent’s and the Lenders’ waiver of any Event of Default is not a continuing waiver. Agent’s and the Lenders’ delay in exercising any remedy is not a waiver, election, or acquiescence.
8.7 Demand Waiver. Borrower waives demand, notice of default or dishonor, notice of payment and nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper, and guarantees held by Agent on which Borrower is liable.
8.8 Borrower Liability. Any Borrower may, acting singly, request Credit Extensions hereunder. Each Borrower hereby appoints each other as agent for the other for all purposes hereunder, including with respect to requesting Credit Extensions hereunder. Each Borrower hereunder shall be liable for the Credit Extensions and Obligations as set forth on Schedule I hereto. Each Borrower waives (a) any suretyship defenses available to it under the Code or any other Applicable Law, and (b) any right to require Agent or any Lender to: (i) proceed against any Borrower or any other person; (ii) proceed against or exhaust any security; or (iii) pursue any other remedy. Agent and the Lenders may exercise or not exercise any right or remedy it has against any Borrower or any security it holds
(including the right to foreclose by judicial or non-judicial sale) without affecting any Borrower’s liability. Notwithstanding any other provision of this Agreement or other related document, each Borrower irrevocably waives all rights that it may have at law or in equity (including, without limitation, any law subrogating Borrower to the rights of Agent and the Lenders under this Agreement) to seek contribution, indemnification or any other form of reimbursement from any other Borrower, or any other Person now or hereafter primarily or secondarily liable for any of the Obligations, for any payment made by Borrower with respect to the Obligations in connection with this Agreement or otherwise and all rights that it might have to benefit from, or to participate in, any security for the Obligations as a result of any payment made by Borrower with respect to the Obligations in connection with this Agreement or otherwise. Any agreement providing for indemnification, reimbursement or any other arrangement prohibited under this Section 8.8 shall be null and void. If any payment is made to a Borrower in contravention of this Section 8.8, such Borrower shall hold such payment in trust for Agent and the Lenders and such payment shall be promptly delivered to Agent for application to the Obligations, whether matured or unmatured.
9 AGENT; DEFAULTING LENDER; ERRONEOUS PAYMENTS; INTERCEDITOR PROVISIONS
9.1 APPOINTMENT AND AUTHORITY.
(a) Each Lender hereby irrevocably appoints FCB to act on its behalf as Agent hereunder and under the other Loan Documents and authorizes Agent to take such actions on its behalf and to exercise such powers as are delegated to Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In performing its functions and duties hereunder and under the other Loan Documents, Agent is acting solely on behalf of the Lenders (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature.
(b) The provisions of this Section 9 are solely for the benefit of Agent and Lenders, and Borrower shall not have rights as a third-party beneficiary of any of such provisions (except in limited circumstances expressly provided for herein relating to the maintenance of the Register). Notwithstanding any provision to the contrary elsewhere in this Agreement, Agent shall not have any duties or responsibilities to any Lender or any other Person, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent.
9.2 Delegation of Duties. Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by Agent. Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Indemnified Persons. The exculpatory provisions of this Section 9 shall apply to any such sub-agent and to the Indemnified Persons of Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent a final and nonappealable decision of a court of competent jurisdiction determines that Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.3 Exculpatory Provisions. Agent shall have no duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, Agent shall not:
(a) be subject to any fiduciary, trust, agency or other similar duties, regardless of whether any Event of Default has occurred and is continuing;
(b) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Agent is required to exercise as directed in writing by the Lenders, as applicable; provided that Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to any Loan Document or applicable law; and
(c) except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and Agent shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by any Person serving as Agent or any of its Affiliates in any capacity.
Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders, (ii) as Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 12.6 or (iii) in the absence of its own gross negligence or willful misconduct.
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Section 2 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Agent.
9.4 Reliance by Agent. Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. In determining compliance with any condition hereunder to the making of a Credit Extension that, by its terms, must be fulfilled to the satisfaction of a Lender, Agent may presume that such condition is satisfactory to such Lender unless Agent shall have received notice to the contrary from such Lender prior to the making of such Credit Extension. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon Lenders and all future holders of the Credit Extensions.
9.5 Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default, unless Agent has received notice from a Lender or Borrower referring to this Agreement, describing such Event of Default and stating that such notice is a “notice of default”. In the event that Agent receives such a notice, Agent shall give notice thereof to Lenders. Agent shall take such action with respect to such Event of Default as shall be reasonably directed by the Lenders.
9.6 Non-Reliance on Agent and Other Lenders. Each Lender expressly acknowledges that neither Agent nor any of its officers, directors, employees, agents, attorneys in fact or affiliates has made any representations or warranties to it and that no act by Agent hereafter taken, including any review of the affairs of a Borrower or its Subsidiaries or any Affiliate of a Borrower or its Subsidiaries, shall be deemed to constitute any representation or warranty by Agent to any Lender. Each Lender represents to Agent that it has, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of Borrower and its Subsidiaries and their Affiliates and made its own decision to make its Credit Extensions hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of Borrower and its Subsidiaries and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to Lenders by Agent hereunder, Agent shall have no duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of Borrower, its Subsidiaries or any Affiliate that may come into the possession of Agent or any of its officers, directors, employees, agents, attorneys in fact or Affiliates.
9.7 Indemnification. Each Lender agrees to indemnify Agent in its capacity as such (to the extent not reimbursed by Borrower and without limiting the obligation of Borrower to do so in accordance with the terms hereof), according to its Pro Rata Share, in effect on the date on which indemnification is sought under this Section 9.7 (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Obligations shall have been paid in full, in accordance with its Pro Rata Share, immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, Lender Expenses, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Credit Extensions) be imposed on, incurred by or asserted against Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by Agent under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, Lender Expenses, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted primarily from Agent’s gross negligence or willful misconduct. The agreements in this Section shall survive the payment of the Credit Extensions and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. The Person serving as Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each such Person serving as Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Borrower, any Guarantor or any Subsidiary or other Affiliate thereof as if such Person were not Agent hereunder and without any duty to account therefor to Lenders.
9.9 Successor Agent. Agent may at any time give notice of its resignation to Lenders and Borrower, which resignation shall not be effective until the time at which the majority of the Lenders have delivered to Agent their written consent to such resignation. Upon receipt of any such notice of resignation, the Lenders shall have the right, in consultation with Borrower, to appoint a successor. If no such successor shall have been so appointed by the Lenders and shall have accepted such appointment within thirty (30) days after the retiring Agent has received the written consent of the majority of the Lenders to such resignation, then the retiring Agent may on behalf of Lenders, appoint a successor Agent meeting the qualifications set forth above; provided that in no event shall any such successor Agent be a Defaulting Lender and provided further that if the retiring Agent shall notify Borrower and Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by Agent on behalf of the Lenders under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed and such collateral security is assigned to such successor Agent) and (2) all payments, communications and determinations provided to be made by, to or through Agent shall instead be made by or to each Lender directly, until such time as the Lenders appoint a successor Agent as provided for above in this Section 9.9. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 9.9). The fees payable by Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Section 9 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Indemnified Persons in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Agent.
9.10 Actions by Agent. In case of the pendency of any proceeding with respect to Borrower or any Guarantor under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Agent shall have made any demand on Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Term Loan Advance and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and Agent allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender to make such payments to Agent and, in the event that Agent shall consent to the making of such payments directly to the Lenders to pay to Agent any amount due to it, in its capacity as Agent, under the Loan Documents. Nothing contained herein shall be deemed to authorize Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize Agent to vote in respect of the claim of any Lender in any such proceeding.
9.11 Register. Agent, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment(s) of, and principal amount (and stated interest) of the Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower, Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
9.12 Defaulting Lender.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as long as said Lender is a Defaulting Lender.
(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 7 or otherwise, and including any amounts made available to Agent by such Defaulting Lender pursuant to Section 12.10), shall be applied at such time or times as may be determined by Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Agent hereunder; second, as Borrower may request (so long as no Event of Default exists), to the funding of the Term Loan Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Agent; third, if so determined by Agent and Borrower, to be held in a Deposit Account and released pro rata to satisfy such Defaulting Lender’s potential future funding obligations with respect to the Term Loan Advance under this Agreement; fourth, so long as no Event of Default has occurred and is continuing, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of the Term Loan Advance in respect of which such Defaulting Lender has not fully funded its appropriate share and (B) the Term Loan Advance were made at a time when the conditions set forth in Section 2.1 were satisfied or waived, such payment shall be applied solely to pay the Term Loan Advance, as the case may be, of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of the Term Loan Advance of such Defaulting Lender until such time as all Term Loan Advance are held by the
Lenders pro rata in accordance with the Term Loan Commitments under this Agreement. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 9.12(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(b) Defaulting Lender Cure. If Borrower and Agent agree in writing that a Lender is no longer a Defaulting Lender, Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will, to the extent applicable, purchase at par that portion of outstanding the Term Loan Advance of the other Lenders or take such other actions as Agent may determine to be necessary to cause the Term Loan Advance to be held on a pro rata basis by the Lenders in accordance with their respective Pro Rata Shares, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while such Lender was a Defaulting Lender; and provided further that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender having been a Defaulting Lender.
(c) Termination of Defaulting Lender. Borrower may terminate the unused amount of the Term Loan Commitment of any Lender that is a Defaulting Lender upon not less than ten (10) Business Days’ prior notice to Agent (which shall promptly notify the Lenders thereof), and in such event the provisions of Section 9.12(a)(ii) will apply to all amounts thereafter paid by Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim Borrower, Agent or any Lender may have against such Defaulting Lender.
(d) If the Person serving as Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the non-Defaulting Lenders may, to the extent permitted by applicable law, by notice in writing to Borrower and such Person, remove such Person as Agent and, in consultation with Borrower, appoint a successor. If no such successor shall have been so appointed by the non-Defaulting Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the non-Defaulting Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
9.13 Erroneous Payments. (a) If Agent notifies a Lender, or any Person who has received funds on behalf of a Lender (any such Lender or other recipient, a “Payment Recipient”) that Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds received by such Payment Recipient from Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter, return to Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Lender or any Person who has received funds on behalf of a Lender hereby further agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in a notice of payment, prepayment or repayment sent by Agent (or any of its Affiliates) with respect to
such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by Agent (or any of its Affiliates), or (z) that such Lender or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part) in each case:
(II) (A) in the case of immediately preceding clauses (x) or (y), an error shall be presumed to have been made (absent written confirmation from Agent to the contrary) or (B) an error has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(III) such Lender shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of such error) notify Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying Agent pursuant to this Section 9.13.
(c) Each Lender hereby authorizes Agent to set off, net and apply any and all amounts at any time owing to such Lender under any Loan Document, or otherwise payable or distributable by Agent to such Lender from any source, against any amount due to Agent under clause (a) hereof or under the indemnification provisions of this Agreement.
(d) In the event that an Erroneous Payment (or portion thereof) is not recovered by Agent for any reason, after demand therefor by Agent in accordance with clause (a) hereof, from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon Agent’s notice to such Lender at any time, (i) such Lender shall be deemed to have assigned its portion of the Term Loan Advance (but not its Commitments), with respect to the term loan facility hereunder (the “Erroneous Payment Impacted Facility”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as Agent may specify) (such assignment of the Term Loan Advance (but not Commitments) of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) at par plus any accrued and unpaid interest (with the assignment fee to be waived by Agent in such instance), and is hereby (together with Borrower) deemed to execute and deliver an Assignment and Assumption with respect to such Erroneous Payment Deficiency Assignment, (ii) Agent as the assignee Lender shall be deemed to acquire the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, Agent as the assignee Lender shall become a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) Agent may reflect in the Register its ownership interest in the Term Loan Advance subject to the Erroneous Payment Deficiency Assignment. Agent may, in its discretion, sell the Term Loan Advance acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Term Loan Advance (or portion thereof), and Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. In addition, each party hereto agrees that, except to the extent that Agent has sold the Term Loan Advance (or portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether Agent may be equitably subrogated, Agent shall be contractually subrogated to all the rights and interests of the applicable Lender under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).
(e) The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by Borrower or any Guarantor, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by Agent from Borrower for the purpose of making such Erroneous Payment.
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by Agent for the return of any Erroneous Payment received, including without limitation any defense based on “discharge for value” or any similar doctrine
(g) Each party’s obligations, agreements and waivers under this Section 9.13 shall survive the resignation or replacement of Agent, any transfer of rights or obligations by, or the replacement of, a Lender the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
9.14 Intercreditor Provisions.
(a) Transfer of Interests in Credit Extensions.
(i) Notwithstanding anything to the contrary in Section 12.2, no Lender may sell or grant any participation in, assign or otherwise transfer any of its interest in this Agreement, or the Loan Documents, without the prior written consent of the other Lenders, except that no such consent shall be required in connection with (a) any sale or grant of any participation in, or assignment or transfer by any Lender of, any of its interest in this Agreement and other Loan Documents to any Affiliate of such Lender, or (b) a Lender’s own financing or securitization transactions, in which case, such Lender may assign, transfer or indorse its rights hereunder and under the other Loan Documents to any Person or party providing such financing or formed to undertake such securitization transaction and any transferee of such Person or party upon the occurrence of a default, event of default or similar occurrence with respect to such financing or securitization transaction; provided that no such assignment, transfer or indorsement under the foregoing clause (b) shall release such Lender from any of its obligations under this Agreement or under the Loan Documents or substitute any such Person or party for such Lender as a party hereto until Agent shall have received and accepted an effective assignment agreement from such Person or party in form satisfactory to Agent executed, delivered and fully completed by the applicable parties thereto, and shall have received such other information regarding such Person or party as contemplated by Section 12.2 of this Agreement or as Agent reasonably shall require.
(ii) The transferee shall assume all obligations of the transferring Lender under this Agreement and the other Loan Documents with respect to the portion of the transferor’s interest in this Agreement and the other Loan Document transferred; provided, that to the extent the transferor shall not transfer the entirety and shall retain any portion of its interest in this Agreement and the other Loan Documents, the transferor shall retain its obligations under this Agreement and the other Loan Documents with respect to that portion of its interest.
(iii) The transferee shall provide to the other Lenders evidence reasonably satisfactory to such Lenders that the proposed transferee has the financial ability and legal authority to assume and perform all obligations of the transferring Lender under this Agreement and the other applicable Loan Documents.
(b) Possession of Collateral. If any Lender shall obtain possession of any Collateral, it shall hold such Collateral for itself and as agent and bailee for the other Lenders for purposes of perfecting Agent’s or such other Lenders’ security interest therein.
(c) Decision to Exercise Remedies. Upon the occurrence and during the continuance of an Event of Default, Agent shall take such actions and only such actions as Lenders mutually agree to take to enforce their rights and remedies under this Agreement and the other Loan Documents; provided, however, that if after consultation, Lenders cannot mutually agree on what action to take, then each Lender shall have the right upon prior written notice to the others to cause the acceleration of this Agreement on behalf of all Lenders in accordance with Section 8.1. Upon such acceleration, the Lenders shall mutually agree as to what Enforcement Action to take; provided, however, that if after consultation, Lenders cannot mutually agree on what action to take, then the Lender
wishing to take the stronger Enforcement Action (the “Enforcing Lender”) shall have the right to determine and shall control the timing, order and type of Enforcement Actions which will be taken and all other matters in connection with any such Enforcement Actions. To facilitate these rights to control Enforcement Actions, upon any Lender becoming the Enforcing Lender, if the Enforcing Lender is not already Agent, then automatically and without the necessity of any further action being taken by any party, (x) the original Agent shall be deemed to have resigned as Agent and (y) the Lenders shall be deemed to have unanimously appointed the Enforcing Lender as successor Agent under this Agreement and the Loan Documents (and the Enforcing Lender shall be deemed to have accepted such appointment) in accordance with Section 9.9 of this Agreement, provided that, once the Enforcing Lender shall have been appointed as Agent under the provisions of this sentence, the Enforcing Lender as such successor Agent shall no longer be bound by the restrictions of the first sentence of this paragraph, but instead shall have the right to determine and control all Enforcement Actions as provided for in the immediately preceding sentence (subject to the provisions of the following sentence). In taking such Enforcement Actions pursuant to the previous sentence, the Enforcing Lender as such successor Agent shall act reasonably and in good faith and shall consult with and keep the other Lenders informed thereof at reasonable intervals; provided, that notwithstanding any such consultations and provision of information to the other Lenders, the Enforcing Lender as such successor Agent shall retain the right to make all determinations in the event of disagreements between the Enforcing Lender and the other Lenders. In all cases with respect to Enforcement Actions, the Enforcing Lender shall have the right to act both on its own behalf and as agent for the other Lenders with respect thereto. In addition, the other Lenders shall take such actions and execute such documents and instruments as the Enforcing Lender may reasonably request in connection with and to facilitate any such Enforcement Actions and take any other action as the successor Agent requests to perfect or continue Agent’s Lien in the Collateral or to effect the purposes of this Agreement and the Loan Documents.
(d) Voting Rights. Notwithstanding the foregoing or anything to the contrary herein or in any Loan Document, in all cases, the following shall require the written consent of each Lender: (i) any change in the terms of principal repayment, any reduction of the principal of, rate of interest on or any fees with respect to any Credit Extension under this Agreement or any forgiveness of any principal, interest or fees with respect to any Credit Extension under this Agreement, (ii) postponements of the date fixed for, or waiver of, any payment of principal of any Credit Extension under this Agreement or of interest on any Credit Extension under this Agreement (other than default interest) or any fees provided for hereunder (other than late charges or for any termination of any commitment); (iii) amendments of any provisions in which the action of all, or all affected, Lenders shall be required for Agent to take any action under the Loan Documents, or of any provisions granting voting rights to any Lender in any manner that would eliminate or reduce the voting rights of any Lender, including the reduction of any percentage specified in the definition of Required Lenders, and including, without limitation, Section 9.14(c); (iv) release of all or substantially all or any material portion of the Collateral, authorization of Borrower to sell or otherwise dispose of all or substantially all or any material portion of the Collateral or release any Guarantor from all or any portion of the Obligations or its guaranty obligations with respect thereto, except, in each case with respect to this clause (iv), as otherwise may be expressly permitted under this Agreement or the other Loan Documents (including in connection with any disposition permitted under Section 6.1); (v) consent to the assignment, delegation or other transfer by Borrower of any of its rights and obligations under any Loan Document or release of Borrower of its payment obligations under any Loan Document; (vi) amendments to any of the provisions of Section 1.10 of this Agreement, the definition of Pro Rata Share, any definitions that provide for the Lenders to receive their pro rata shares of any fees, payments, reduction of commitments, setoffs or proceeds of Collateral or any other provisions in a manner that would affect pro rata treatment of the Lenders required thereby; (vii) subordination of the Liens granted in favor of Agent securing the Obligations, or subordination in right of payment of the Obligations; (viii) amendments of any of the provisions of Section 12.2 or Section 12.6; (ix) any other forbearance or waiver of rights under the Loan Documents; or (x) any extension or increase to the Term Loan Commitment.
(e) Application of Proceeds after an Event of Default or received in connection with Insolvency Proceeding. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, as among the Lenders, subject to Section 9.14(h), the proceeds of the Collateral, or any part thereof, the proceeds of any remedy under the Loan Documents after the occurrence and during the continuance of an Event of Default and any proceeds received pursuant to an Insolvency Proceeding (collectively, the “Proceeds of Collection”) shall upon receipt by any Lender be paid to and applied as follows:
(i) First, to Agent, in an amount up to the sum of all accrued fees owing to Agent under this Agreement;
(ii) Second, to the payment of then outstanding out-of-pocket costs and expenses of Agent and the Lenders (in proportion to such costs and expenses theretofore incurred by each), including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made under the Loan Documents by Agent and the Lenders;
(iii) Third, to Lenders, ratably, in an amount equal to the sum of all accrued interest owing to the Lenders on the Term Loan Advance hereunder;
(iv) Fourth, to Lenders, ratably, in an amount equal to the sum of the outstanding principal and premium, if any owing to Lenders from Borrower on the Term Loan Advance hereunder;
(v) Fifth, to Agent and the Lenders, ratably (in proportion to all remaining Obligations owing to each) in an amount equal to the sum of all other outstanding and unpaid Obligations (including indemnification claims not otherwise satisfied pursuant to the preceding clauses); and
(vi) Finally, after the full and final payment in cash of all of the Obligations (other than inchoate obligations, any obligations under Bank Services Agreements for which other satisfactory arrangements with the provider of such Bank Services have been made and any other obligations which, by their terms, are to survive the termination of this Agreement), to Borrower or its representatives or as a court of competent jurisdiction may direct.
(vii) Notwithstanding anything in this Agreement to the contrary, the above priorities shall not apply to any and/or all of FCB’s and its Affiliates’ present and future rights (whether described as rights of setoff, banker’s liens, chargeback or otherwise, and whether available to FCB and its Affiliates under the law or under any other agreement between FCB and Borrower concerning any account maintained by Borrower with FCB or any of its Affiliates) with respect to: (a) the face amount of a check, draft, money order, instrument, wire transfer of funds, automated clearing house entry, credit from a merchant card transaction, other electronic transfer of funds or other item (i) deposited in or credited to any such account and returned unpaid or otherwise uncollected or subject to an adjustment entry, whether for insufficient funds or for any other reason and without regard to the timeliness of the return or adjustment or the occurrence or timeliness of any other person’s notice of nonpayment or adjustment, (ii) subject to a claim against FCB or its Affiliates for breach of transfer, presentment, encoding, retention or other warranty under Federal Reserve Regulations or Operating Circulars, clearing house rules, the UCC or other applicable law, or (iii) for a merchant card transaction, against which a contractual demand for chargeback has been made; (b) service charges, fees or expenses payable or reimbursable to FCB or its Affiliates in connection with any such account or any related services; and (c) any adjustments or corrections of any posting or encoding errors, for which FCB and its Affiliates shall be senior to the other Lenders.
(f) Insolvency Events. Subject to Section 9.14(h), in the event of any distribution, division, or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the property of Borrower or the proceeds thereof to the creditors of Borrower, or the readjustment of any Claims, whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding involving the readjustment of all or any part of any of the Claims, or the application of the property of Borrower to the payment or liquidation thereof, or upon the dissolution or other winding up of Borrower’s business, or upon the sale of all or any substantial part of Borrower’s property (any of the foregoing being hereinafter referred to as an “Insolvency Event”), then, and in any such event, and subject to any subordination arrangements to which the Lenders may be subject, (i) all payments and distributions of any kind or character, whether in cash or property or securities in respect of the Lenders’ Claims shall be distributed pursuant to the provisions of Section 9.14(e); (ii) each Lender shall promptly file a claim or claims, on the form required in such proceeding, for the full outstanding amount of such Lender’s Claim, and shall use its best efforts to cause said claim or claims to be approved; (iii) each of the Lenders hereby irrevocably agrees that, to the extent that it fails timely to do so, any other Lender may in the name of the first Lender, or otherwise, prove up any and all Claims of the first Lender relating to the first
Lender’s Claim; and (iv) in the event that, notwithstanding the foregoing, any payment or distribution of any kind or character (other than any payment received by FCB or its Affiliates in respect of Bank Services) in respect of a Lender’s Claims, whether in cash, properties or securities, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders for application to the payments of amounts due on the other Lenders’ Claims.
(g) Foreclosure.
(i) Credit Bid By Lenders. Only by mutual agreement shall the Lenders make or cause to be made a credit bid at any foreclosure sale or other sale of any of the Collateral on behalf of the Lenders. If Lenders are the successful bidders at the sale, then (A) the amount to be credited against their respective Claims shall be allocated pro rata between the Lenders according to the balances of such Claims, and (B) Lenders shall take title to the Collateral so purchased together, each holding a pro rata undivided interest in such Collateral. The parties shall mutually agree as to the most favorable disposition of any Collateral purchased with any such credit bid.
(ii) Cash Bid for Account of One Lender. No Lender shall make or cause to be made a cash bid at any foreclosure sale or other sale of any of the Collateral without the prior written consent of the other Lenders. If a cash bid is made and is successful, then (A) the proceeds of the sale shall be allocated as set forth in Section 9.14(e), and (B) the Lender that entered the successful bid shall acquire the Collateral so purchased for its own account, and no other Lender shall have any further interest in that Collateral upon the payment to such other Lender of the shares of the proceeds in accordance with Section 9.14(e).
(h) Priority of Bank Services; Cash Collateral. The parties agree that (x) notwithstanding anything to the contrary contained in this Agreement, FCB’s or any its Affiliate’s lien on any Collateral in respect of Bank Services shall be senior in priority to the liens of Lenders under this Agreement to the extent of Borrower’s reimbursement obligations in respect of such Bank Services (collectively, the “Borrower Reimbursement Obligations”), and (y) FCB may extend credit to Borrower in connection with the provision of Bank Services and take such action as FCB deems necessary to enforce its rights and remedies (including, without limitation, any Enforcement Action against any Collateral and Borrower) to satisfy the Borrower Reimbursement Obligations with respect to Bank Services, all without prior notice to or the consent of Agent or any Lender. Notwithstanding the terms of this Agreement to the contrary, any Proceeds of Collection received by Agent or a Lender shall be paid over to FCB to be applied to the Borrower Reimbursement Obligations, with any remainder, after satisfaction of the Borrower Reimbursement Obligations to FCB, to be distributed to Agent and the Lenders in the manner and order set forth in Sections 1.10 and 9.14(e), as applicable. In addition to the provision of Bank Services by FCB, which may be provided on a cash secured or a non-cash secured basis, the parties acknowledge that Borrower may in the future desire to pledge cash and/or securities in connection with the provision by FCB to Borrower of Bank Services. The parties agree that notwithstanding anything to the contrary contained in this Agreement, Borrower may pledge cash and/or securities to FCB as collateral to secure its obligations to FCB relating to Bank Services (such cash and/or securities and the proceeds thereof (but expressly excluding any other Collateral) being hereinafter referred to as the “Cash Collateral”). Agent and the Lenders may not foreclose upon, or force FCB to take any actions with respect to, the Cash Collateral notwithstanding anything in this Agreement to the contrary. FCB consents to Borrower’s grant to Lenders of liens and security interests against the Cash Collateral, and the parties agree that the Cash Collateral and proceeds thereof shall be distributed to Agent and the Lenders, after satisfaction of the Borrower Reimbursement Obligations to FCB, in the manner and order set forth in Sections 1.10 and 9.14(e), as applicable. This Section 9.14(h) shall not in any way limit FCB’s rights under Section 9.14(e).
(i) Relationship of Lenders. The relationship among the Lenders is, and at all times shall remain solely that of co-lenders. Lenders shall not under any circumstances be construed to be partners or joint venturers of one another; nor shall the Lenders under any circumstances be deemed to be in a relationship of confidence or trust or a fiduciary relationship with one another, or to owe any fiduciary duty to one another. Lenders do not undertake or assume any responsibility or duty to one another to select, review, inspect, supervise, pass judgment upon or otherwise inform each other of any matter in connection with Borrower’s property, any Collateral held by any Lender or the operations of Borrower. Each Lender shall rely entirely on its own judgment with respect
to such matters, and any review, inspection, supervision, exercise of judgment or supply of information undertaken or assumed by any Lender in connection with such matters is solely for the protection of such Lender.
(j) Lender Representations. Each Lender represents and warrants that it is duly existing and in good standing under the laws of the jurisdiction of its formation and is qualified and licensed to do business in, and is in good standing in, any state in which the conduct of its business or its ownership of property requires that it be so qualified, except for such states as to which any failure so to qualify would not have a material adverse effect on such Lender. Each Lender represents and warrants that it has all necessary power and authority to execute, deliver and perform this Agreement in accordance with the terms hereof and that it has all requisite power and authority to own and operate its properties and to carry on its business as now conducted. Each Lender represents and warrants that (i) the execution and delivery of this Agreement and the consummation of the transactions contemplated herein have each been duly authorized by all necessary action on the part of such Lender and (ii) this Agreement has been duly executed and delivered and constitutes a legal, valid and binding obligation of such Lender, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application relating to or affecting the enforcement of creditors’ rights or by general principles of equity.
(k) Return of Payments. To the extent any payment for the account of Borrower in connection with the Loan Documents (other than any payment received by FCB in respect of Bank Services) is required to be returned as a voidable transfer or otherwise, the Lenders shall contribute to one another as is necessary to ensure that such return of payment is on a pro rata basis, to the extent that the original receipt of such payment was received on a pro rata basis.
10 NOTICES
All notices, consents, requests, approvals, demands, or other communication by any party to this Agreement or any other Loan Document must be in writing and shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when sent by electronic mail; (c) one (1) Business Day after deposit with a reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or email address indicated below; provided that, for clause (b), if such notice, consent, request, approval, demand or other communication is not sent during the normal business hours of the recipient, it shall be deemed to have been sent at the opening of business on the next Business Day of the recipient. Agent or Borrower may change its mailing or electronic mail address by giving the other party written notice thereof in accordance with the terms of this Section 10.
| | | | | | | | | | | |
| If to Borrower: | Hawkeye 360, Inc. |
| | | |
| | 196 Van Buren Street, Suite 450 |
| | | |
| | Herndon, Virginia 20170 |
| | | |
| | Attn: | John Serafini, Chief Executive Officer, and Chief Legal Officer |
| | | |
| | Email: | [ ] |
| | | |
| with a copy to (which shall not constitute notice): | Cooley LLP |
| | | |
| | 110 N. Wacker Drive |
| | | |
| | Chicago, IL 60606-1511 |
| | | |
| | Attn: | Addison Pierce |
| | | |
| | Email: | [ ] |
| | | | | | | | | | | |
| | | |
| If to Agent: | Silicon Valley Bank, a division of First-Citizens Bank & Trust Company |
| | | |
| | | |
| | 11 W. 42nd Street |
| | | |
| | New York, New York 10036 |
| | | |
| | Attn: | Tyler Dietrich |
| | | |
| | Email: | [ ] |
| | | |
| with a copy to (which shall not constitute notice): | Morrison & Foerster LLP |
| | | |
| | 200 Clarendon Street |
| | | |
| | Boston, Massachusetts 02116 |
| | | |
| | Attn: | Charles Stavros |
| | | |
| | Email: | [ ] |
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
Except as otherwise expressly provided in any of the Loan Documents, New York law governs the Loan Documents without regard to principles of conflicts of law that would require the application of the laws of another jurisdiction. Borrower, Agent and the Lenders each irrevocably and unconditionally submit to the exclusive jurisdiction of the State and Federal courts in the borough of Manhattan in New York, New York; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Agent and the Lenders from bringing suit or taking other legal action in any other jurisdiction with respect to the Loan Documents or to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Agent and the Lenders. Borrower expressly, irrevocably and unconditionally submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and Borrower hereby irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby irrevocably and unconditionally consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Borrower hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to Borrower at the address set forth in, or subsequently provided by Borrower in accordance with, Section 10 of this Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower’s actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER, AGENT AND EACH LENDER WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT. EACH PARTY HERETO HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
This Section 11 shall survive the termination of this Agreement and the repayment of all Obligations.
12 GENERAL PROVISIONS
12.1 Termination Prior to Maturity Date; Survival. All covenants, representations and warranties made in this Agreement shall continue in full force until this Agreement has terminated pursuant to its terms and all Obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.3 of this Agreement) have been satisfied. So long as Borrower has satisfied the Obligations (other than inchoate indemnity obligations, and any other obligations which, by their terms, are to survive the termination of this Agreement, and any Obligations under Bank Services Agreements that are cash collateralized in accordance with Section 3.1 of this Agreement), this Agreement may be terminated prior to the Term Loan Maturity Date by Borrower, effective three (3) Business Days after written notice of termination is given to Agent. Those obligations that are expressly specified in this Agreement as surviving this Agreement’s termination shall continue to survive notwithstanding this Agreement’s termination.
12.2 Successors and Assigns.
(a) This Agreement binds and is for the benefit of the successors and permitted assigns of each party. Borrower may not assign or transfer this Agreement or any rights or obligations under it without Agent’s prior written consent (which may be granted or withheld in Agent’s sole discretion) and any other attempted assignment or transfer by Borrower shall be null and void. Agent and each Lender has the right, without the consent of or notice to Borrower, to sell, transfer, assign, negotiate, or grant participation in all or any part of, or any interest in, such Lender’s obligations, rights, and benefits under this Agreement and the other Loan Documents (other than the Warrant, as to which assignment, transfer and other such actions are governed by the terms thereof). Notwithstanding the foregoing, so long as no Event of Default shall have occurred and is continuing, no Agent or any Lender shall assign its interests in the Loan Documents (other than the Warrant, as to which assignment, transfer and other such actions are governed by the terms thereof) to any Person who in the reasonable estimation of Agent or such Lender is (a) a direct competitor of Borrower, whether as an operating company or direct or indirect parent with voting control over such operating company, or (b) a vulture fund or distressed debt fund.
(b) Upon its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which Agent and the parties to the Assignment and Assumption are participants, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (c) of this Section and any written consent to such assignment required by paragraph (c) of this Section, Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee is a Defaulting Lender, Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of, or notice to, Borrower or Agent, sell participations to one or more banks or other entities (a “Participant”), in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment(s) and/or the Advances made by it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) Borrower, Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in clauses (i), (ii) or (iii) the first proviso to this Section 12.2(c) that affects such Participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Term Loan Advance or its other obligations under any Loan Document) to any Person except to
the extent that such disclosure is necessary to establish that such Commitment, Advance, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
12.3 Indemnification; Damage Waiver, etc.
(a) General Indemnification. Borrower shall indemnify, defend and hold Agent, each Lender and their respective Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of Agent, each Lender and their respective Affiliates (each, an “Indemnified Person”) harmless against all losses, claims, damages, liabilities and related documented out-of-pocket expenses (including Lender Expenses and the reasonable and documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnified Person) (collectively, “Indemnified Claims”) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Credit Extension or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of hazardous materials on or from any property owned or operated by Borrower or any of its Subsidiaries, or any environmental liability related in any way to Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower, and regardless of whether any Indemnified Person is a party thereto; provided that such indemnity shall not, as to any Indemnified Person, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified Person. All amounts due under this Section 12.3 shall be payable promptly after demand therefor. This Section 12.3(a) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(b) Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, Borrower shall not assert, and hereby waives, any claim against Agent, each Lender and their respective Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of Agent, each Lender and their respective Affiliates (each, a “Protected Person”) , on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) or any loss of profits arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Credit Extension, or the use of the proceeds thereof. No Protected Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
This Section 12.3 shall survive the termination of this Agreement until all statutes of limitation with respect to the Indemnified Claims, losses, and expenses for which indemnity is given shall have run.
12.4 Time of Essence. Time is of the essence for the performance of all Obligations in this Agreement.
12.5 Severability of Provisions. Each provision of this Agreement is severable from every other provision in determining the enforceability of any provision.
12.6 Amendments in Writing; Waiver; Integration. No purported amendment or modification of any Loan Document, or waiver, discharge or termination of any obligation under any Loan Document, or release, or subordinate Lenders’ security interest in, or consent to the transfer of, any Collateral shall be enforceable or admissible unless, and only to the extent, expressly set forth in a writing signed by the Required Lenders (and acknowledged by Agent), or Agent, as consented to by the Required Lenders, or as otherwise required pursuant to Section 9.14(d), and Borrower. Without limiting the generality of the foregoing, no oral promise or statement, nor any action, inaction, delay, failure to require performance or course of conduct shall operate as, or evidence, an amendment, supplement or waiver or have any other effect on any Loan Document. Any waiver granted shall be limited to the specific circumstance expressly described in it and shall not apply to any subsequent or other circumstance, whether similar or dissimilar, or give rise to, or evidence, any obligation or commitment to grant any further waiver. The Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties, and negotiations among the parties about the subject matter of the Loan Documents merge into the Loan Documents.
12.7 Counterparts. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, is an original, and all taken together, constitute one Agreement. Delivery of an executed signature page of this Agreement by electronic mail transmission shall be effective as delivery of a manually executed counterpart hereof.
12.8 Confidentiality. Agent and each Lender agrees to maintain the confidentiality of Information (as defined below), except that Information may be disclosed (a) to Agent, Lenders and/or Agent’s or Lenders’ subsidiaries or Affiliates, and their respective employees, directors, partners, potential partners, officers, managers, agents, attorneys, accountants and other professional advisors (collectively, “Representatives” and, together with Agent and the Lenders, collectively, “Lender Entities”); (b) to prospective transferees, assignees, credit providers or purchasers of any of Agent’s or a Lender’s interests under or in connection with this Agreement and their Representatives (provided, however, that any prospective transferee, assignee, credit provider, purchaser or their Representatives shall have entered into an agreement containing provisions substantially the same as those in this Section); (c) as required by law, regulation, subpoena, or other order; (d) to Agent’s or any Lender’s regulators or as otherwise required or requested in connection with Agent’s or any Lender’s examination or audit; (e) in connection with the exercise of remedies under the Loan Documents or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; and (f) to third-party service providers of Agent and/or any Lender so long as such service providers have executed a confidentiality agreement with Agent or the Lenders, as applicable, with terms no less restrictive than those contained herein. “Information” means all information received from Borrower regarding Borrower or its business, in each case other than information that is either: (i) in the public domain or in Agent’s or any Lender’s possession when disclosed to Agent or such Lender, or becomes part of the public domain (other than as a result of its disclosure by Agent or a Lender in violation of this Agreement) after disclosure to Agent and/or the Lenders; or (ii) disclosed to Agent and/or a Lender by a third party, if Agent or such Lender, as applicable, does not know that the third party is prohibited from disclosing the information.
12.9 Electronic Execution of Documents. The words “execution,” “signed,” “signature” and words of like import in any Loan Document shall be deemed to include electronic signatures, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature or the use of a paper-based recordkeeping systems, as the case may be, to the extent and as provided for in any Applicable Law, including, without limitation, any state law based on the Uniform Electronic Transactions Act.
12.10 Right of Setoff. Borrower hereby grants to Agent, for the benefit of the Lenders, and each Lender a Lien and a right of setoff as security for all Obligations to Agent and the Lenders, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Lender or any entity under the control of Lender (including a subsidiary of Lender) or in transit to any of them, and other obligations owing to Agent or any such entity. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, Agent or any Lender may setoff the same or any part thereof and apply the same to any liability or Obligation of Borrower even though unmatured and regardless of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF
WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
12.11 Captions and Section References. The headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. Unless indicated otherwise, section references herein are to sections of this Agreement.
12.12 Construction of Agreement. The parties hereto mutually acknowledge that they and their attorneys have participated in the preparation and negotiation of this Agreement. In cases of uncertainty this Agreement shall be construed without regard to which of the parties caused the uncertainty to exist.
12.13 Relationship. The relationship of the parties to this Agreement is determined solely by the provisions of this Agreement. The parties do not intend to create any agency, partnership, joint venture, trust, fiduciary or other relationship with duties or incidents different from those of parties to an arm’s-length contract.
12.14 Third Parties. Nothing in this Agreement, whether express or implied, is intended to: (a) confer any benefits, rights or remedies under or by reason of this Agreement on any Persons other than the express parties to it and their respective permitted successors and assigns; (b) relieve or discharge the obligation or liability of any Person not an express party to this Agreement; or (c) give any Person not an express party to this Agreement any right of subrogation or action against any party to this Agreement.
12.15 Anti-Terrorism Law. Agent and each Lender hereby notifies Borrower that, pursuant to the requirements of Anti-Terrorism Law, Agent or such Lender may be required to obtain, verify and record information that identifies Borrower, which information may include the name and address of Borrower and other information that will allow Agent or such Lender to identify Borrower in accordance with Anti-Terrorism Law. Borrower hereby agrees to take any action necessary to enable Agent or such Lender to comply with the requirements of Anti-Terrorism Law.
12.16 Online Banking Platform. If Borrower uses Agent’s online banking platform in connection with this Agreement, Borrower agrees to be bound by and comply with the applicable online banking terms and conditions and related online banking documents as in effect from time to time. The online banking terms and conditions may be provided as hyperlinks or “click-through” agreements on the website, which may be updated from time to time. Continued use of Agent’s online banking platform shall constitute Borrower’s acceptance of the applicable terms and conditions. Borrower is solely responsible for any of Borrower’s employees’ or agents’ compliance with the online banking terms and conditions and shall ensure that (a) all persons utilizing Agent’s online banking platform in connection with this Agreement, including the Administrator and other users added by them, have all relevant authority to perform the specified roles and functions on Borrower’s behalf, and (b) any use of Agent’s online banking platform in connection with this Agreement complies with the terms of this Agreement. Agent shall be entitled to assume the authenticity, accuracy and completeness of any information, instruction or request for a Credit Extension submitted via Agent’s online banking platform and to further assume that any submissions or requests made via Agent’s online banking platform have been duly authorized by an Administrator and are otherwise in accordance with the terms of this Agreement.
13 ACCOUNTING TERMS AND OTHER DEFINITIONS
13.1 Accounting and Other Terms.
(a) Accounting terms not defined in this Agreement shall be construed following GAAP. Calculations and determinations must be made following GAAP (except for with respect to unaudited financial statements for the absence of footnotes and subject to year-end audit adjustments), provided that if at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or Agent (or Agent on behalf of the Lenders) shall so request, Borrower, Agent and the Lenders shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP; provided, further, that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) Borrower shall provide Agent financial statements and
other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
(b) As used in the Loan Documents: (i) the words “shall” or “will” are mandatory, the word “may” is permissive, the word “or” is not exclusive, the words “includes” and “including” are not limiting, the singular includes the plural, and numbers denoting amounts that are set off in brackets are negative; (ii) the term “continuing” in the context of an Event of Default means that the Event of Default has not been remedied (if capable of being remedied) or waived; and (iii) whenever a representation or warranty is made to Borrower’s knowledge or awareness, to the “best of” Borrower’s knowledge, or with a similar qualification, knowledge or awareness means the actual knowledge, after reasonable investigation, of any Responsible Officer.
13.2 Definitions. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in this Section 13.2. All other terms contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the Code to the extent such terms are defined therein. As used in this Agreement, the following capitalized terms have the following meanings:
“Account” is, as to any Person, any “account” of such Person as “account” is defined in the Code with such additions to such term as may hereafter be made, and includes, without limitation, all accounts receivable and other sums owing to such Person.
“Account Debtor” is any “account debtor” as defined in the Code with such additions to such term as may hereafter be made.
“Acquisition” is the Merger (as defined in the Acquisition Agreement (as in effect on the Effective Date).
“Acquisition Agreement” is that certain Agreement and Plan of Merger dated as of the Effective Date, by and among Parent; Forrestal Merger Sub, Inc., a Texas corporation and wholly owned subsidiary of Parent; ISA; and David Stevens, as the Shareholder Representative.
“Acquisition Documentation” is, collectively, the Acquisition Agreement and all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof or entered into in connection therewith.
“Administrator” is an individual that is named:
(a) as an “Administrator” or similar role in the online banking enrollment form or related documents completed by Borrower with the authority to determine who will be authorized to use Agent’s online banking platform on behalf of Borrower in connection with this Agreement; and
(b) as an Authorized Signer of Borrower in an approval by the Board.
“Affiliate” is, with respect to any Person, each other Person that owns or controls directly or indirectly the Person, any Person that controls or is controlled by or is under common control with the Person, and each of that Person’s senior executive officers, directors, partners and, for any Person that is a limited liability company, that Person’s managers and members.
“Agent” is defined in the preamble hereof.
“Agreement” is defined in the preamble hereof.
“AICF II” is defined in the preamble hereof.
“Anti-Terrorism Law” means any law relating to terrorism or money-laundering, including Executive Order No. 13224 and the USA Patriot Act.
“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators, including the Corporate Transparency Act.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.2), and accepted by Agent, in any form approved by Agent.
“Authorized Signer” means any individual listed in Borrower’s Borrowing Resolution who is authorized to execute the Loan Documents, including making (and executing if applicable) any Credit Extension request, on behalf of Borrower.
“Bank Services” are any products, credit services, and/or financial accommodations previously, now, or hereafter provided to Borrower or any of its Subsidiaries by FCB or any FCB Affiliate, including, without limitation, any letters of credit, cash management services (including, without limitation, merchant services, direct deposit of payroll, business credit cards, and check cashing services), interest rate swap arrangements, and foreign exchange services as any such products or services may be identified in FCB’s various agreements related thereto (each, a “Bank Services Agreement”).
“Bank Services Agreement” is defined in the definition of Bank Services.
“Board” is Borrower’s board of directors or equivalent governing body.
“Borrower” is set forth in the first paragraph of this Agreement.
“Borrower Reimbursement Obligations” is defined in Section 9.14(h).
“Borrower’s Books” are all Borrower’s books and records including ledgers, federal and state tax returns, records regarding Borrower’s assets or liabilities, the Collateral, business operations or financial condition, and all computer programs or storage or any equipment containing such information.
“Borrowing Resolutions” are, with respect to any Person, those resolutions adopted by such Person’s board of directors (and, if required under the terms of such Person’s Operating Documents, stockholders) and delivered by such Person to Agent approving the Loan Documents to which such Person is a party and the transactions contemplated thereby, together with a certificate executed by its secretary on behalf of such Person certifying (a) such Person has the authority to execute, deliver, and perform its obligations under each of the Loan Documents to which it is a party, (b) that set forth as a part of or attached as an exhibit to such certificate is a true, correct, and complete copy of the resolutions then in full force and effect authorizing and ratifying the execution, delivery, and performance by such Person of the Loan Documents to which it is a party, (c) the name(s) of the Person(s) authorized to execute the Loan Documents, including making (and executing if applicable) any Credit Extension request, on behalf of such Person, together with a sample of the true signature(s) of such Person(s), and (d) that Agent and the Lenders may conclusively rely on such certificate unless and until such Person shall have delivered to Agent a further certificate canceling or amending such prior certificate.
“Business Day” is a day other than a Saturday, Sunday or other day on which commercial banks in the State of California are authorized or required by law to close.
“Cash Collateral” is defined in Section 9.14(h).
“Cash Equivalents” are (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any State thereof having maturities of not more than one (1) year from the date of acquisition; (b) commercial paper maturing no more than one (1) year after its creation and having the highest rating from either Standard & Poor’s Ratings Group or Moody’s Investors Service, Inc.; (c) FCB’s certificates of deposit issued maturing no more than one (1) year after issue; and (d) money market funds at least 95.0% of the assets of which constitute Cash Equivalents of the kinds described in clauses (a) through (c) of this definition.
“Change in Control” means (a) at any time, any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d) 5 under the Exchange Act), directly or indirectly, of 49.0% or more of the ordinary voting power for the election of directors, partners, managers and members, as applicable, of Parent (determined on a fully diluted basis) other than by the sale of Parent’s equity securities in a public offering; (b) during any period of 12 consecutive months, a majority of the members of the Board of Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or (c) at any time, Parent shall cease to own and control, of record and beneficially, directly or indirectly, 100.0% of each class of outstanding stock, partnership, membership, or other ownership interest or other equity securities of each Subsidiary of Parent free and clear of all Liens (except Permitted Liens).
“Change in Law” means the occurrence, after the Effective Date, of: (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in Applicable Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Claim” means any and all present and future “claims” (used in its broadest sense, as contemplated by and defined in Section 101(5) of the United States Bankruptcy Code, but without regard to whether such claim would be disallowed under the United States Bankruptcy Code) of a Lender now or hereafter arising or existing under or relating to this Agreement and related Loan Documents, whether joint, several, or joint and several, whether fixed or indeterminate, due or not yet due, contingent or non-contingent, matured or unmatured, liquidated or unliquidated, or disputed or undisputed, whether under a guaranty or a letter of credit, and whether arising under contract, in tort, by law, or otherwise, any interest or fees thereon (including interest or fees that accrue after the filing of a petition by or against Borrower under the United States Bankruptcy Code, irrespective of whether allowable under the United States Bankruptcy Code), any costs of Enforcement Actions, including reasonable attorneys’ fees and costs, and any prepayment or termination premiums.
“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in effect in the State of New York; provided, that, to the extent that the Code is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of the Code, the definition of such term contained in Article or Division 9 shall govern; provided further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, or priority of, or remedies with respect to, Agent’s Lien on any Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies and for purposes of definitions relating to such provisions.
“Collateral” consists of all of Borrower’s right, title and interest in and to the following personal property:
(a) all goods, Accounts (including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles, Intellectual Property, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, securities accounts, securities entitlements and all other
investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located;
(b) all Borrower’s Books relating to the foregoing, and any and all claims, rights and interests in any of the above and all substitutions for, additions, attachments, accessories, accessions and improvements to and replacements, products, proceeds and insurance proceeds of any or all of the foregoing; and
(c) Notwithstanding the foregoing, the Collateral does not include any property to the extent that such grant of security interest is prohibited by any Applicable Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except to the extent that such Applicable Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity; provided, however, that such security interest shall attach immediately at such time as such Applicable Law is not effective or applicable, or such prohibition, breach, default or termination is no longer applicable or is waived, and to the extent severable, shall attach immediately to any portion of the Collateral that does not result in such consequences.
“Collateral Account” is any Deposit Account, Securities Account, or Commodity Account.
“Commitment” and “Commitments” means the Term Loan Commitment(s).
“Commodity Account” is any “commodity account” as defined in the Code with such additions to such term as may hereafter be made.
“Compliance Statement” is that certain statement in the form attached hereto as Exhibit A.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Adjusted EBITDA” shall mean (a) Net Income, plus (b) to the extent deducted in the calculation of Net Income (i) Interest Expense, (ii) depreciation expense and amortization expense, and (iii) income tax expense.
“Consolidated Revenue Leverage Ratio” means, as at the last day of any period, the ratio of (a) the sum of (i) the outstanding Term Loan Advances (including the PIK Amount) under this Agreement plus (ii) the outstanding Term Loan Advances (as defined in the Senior Loan Agreement (or any successor or replacement definition)), to (b) Parent’s consolidated revenue under GAAP measured on a trailing twelve-month basis; provided that for purposes of this definition, consolidated revenue for any period shall be determined on a pro forma basis to give effect to any Permitted Acquisitions or any disposition of any business consummated during such period, in each case as if such transaction occurred on the 1st day of such period.
“Contingent Obligation” is, for any Person, any direct or indirect liability of that Person for (a) any direct or indirect guaranty by such Person of any indebtedness, lease, dividend, letter of credit, credit card or other obligation of another, (b) any other obligation endorsed, co-made, discounted or sold with recourse by that Person, or for which that Person is directly or indirectly liable; (c) any obligations for undrawn letters of credit for the account of that Person; and (d) all obligations from any interest rate, currency or commodity swap agreement, interest rate cap or collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not include endorsements in the ordinary course of business. The amount of a Contingent Obligation is the stated or determined amount of the primary obligation for which the Contingent Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it determined by the Person in good faith; but the amount may not exceed the maximum of the obligations under any guarantee or other support arrangement.
“Control Agreement” is any control agreement entered into among the depository institution at which Borrower maintains a Deposit Account or the securities intermediary or commodity intermediary at which Borrower maintains a Securities Account or a Commodity Account, Borrower, and Agent pursuant to which Agent obtains control (within the meaning of the Code) over such Deposit Account, Securities Account, or Commodity Account.
“Copyrights” are any and all copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret.
“Credit Extension” is the Term Loan Advance or any other extension of credit by any Lender for Borrower’s benefit.
“Default” means any event which with notice or passage of time or both, would constitute an Event of Default.
“Default Rate” is defined in Section 1.3(c).
“Defaulting Lender” is, subject to Section 10.10(b), any Lender that (a) has failed to (i) fund all or any portion of its Term Loan Advance within two (2) Business Days of the date the Term Loan Advance were required to be funded hereunder unless such Lender notifies Agent and Borrower in writing that such failure is the result of such Lender’s reasonable determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified Borrower or Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Term Loan Advance hereunder and states that such position is based on such Lender’s reasonable determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Agent or Borrower, to confirm in writing to Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of an Insolvency Proceeding, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 10.10(b)) upon delivery of written notice of such determination to Borrower and each Lender.
“Deposit Account” is any “deposit account” as defined in the Code with such additions to such term as may hereafter be made.
“Designated Deposit Account” is the deposit account established by Borrower with FCB for purposes of receiving Credit Extensions.
“Digital Assets” means all cryptocurrencies, virtual currencies, coins, tokens and other digital assets. For the avoidance of doubt any references to cash or Cash Equivalents in this Agreement shall be deemed not to include Digital Assets.
“Disqualified Stock” is any capital stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the later of the Term Loan Maturity Date under this Agreement and the Term Loan Maturity Date (as defined in the Senior Loan Agreement (or any successor or replacement definition)).
“Division” means, in reference to any Person which is an entity, the division of such Person into two (2) or more separate Persons, with the dividing Person either continuing or terminating its existence as part of such division, including, without limitation, as contemplated under Section 18-217 of the Delaware Limited Liability Company Act for limited liability companies formed under Delaware law, Section 17-220 of the Delaware Revised Uniform Limited Partnership Act for limited partnerships formed under Delaware law, or any analogous action taken pursuant to any other Applicable Law with respect to any corporation, limited liability company, partnership or other entity.
“Dollar Equivalent” is, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in a Foreign Currency, the equivalent amount therefor in Dollars as determined by Agent at such time on the basis of the then-prevailing rate of exchange in San Francisco, California, for sales of the Foreign Currency for transfer to the country issuing such Foreign Currency.
“Dollars,” “dollars” or use of the sign “$” means only lawful money of the United States and not any other currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted into lawful money of the United States.
“Effective Date” is set forth on Schedule I hereto.
“Enforcement Action” means, with respect to any Lender and with respect to any Claim of such Lender or any item of Collateral in which such Lender has or claims a security interest, lien or right of offset, any action, whether judicial or nonjudicial, to repossess, collect, accelerate, offset, recoup, give notification to third parties with respect to, sell, dispose of, foreclose upon, give notice of sale, disposition, or foreclosure with respect to, or obtain equitable or injunctive relief with respect to, such Claim or Collateral. The filing, or the joining in the filing, by any Lender of an involuntary bankruptcy or insolvency proceeding against Borrower also is an Enforcement Action.
“Enforcing Lender” has the meaning given to such term in Section 9.14(c).
“Environmental Laws” means any Applicable Law (including any permits, concessions, grants, franchises, licenses, agreements or governmental restrictions) relating to pollution or the protection of health, safety or the environment or the release of any hazardous materials into the environment (including those related to hazardous materials, air emissions, discharges to waste or public systems and health and safety matters).
“Equipment” is all “equipment” as defined in the Code with such additions to such term as may hereafter be made, and includes without limitation all machinery, fixtures, goods, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing.
“ERISA” is the Employee Retirement Income Security Act of 1974, as amended, and its regulations.
“Erroneous Payment” has the meaning assigned to it in Section 9.13(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 9.13(d).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 9.139.(d).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 9.13(d).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 9.13(d).
“Event of Default” is defined in Section 7.
“Exchange Act” is the Securities Exchange Act of 1934, as amended.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to Agent or any Lender or required to be withheld or deducted from a payment to Agent or any Lender, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of Agent or any Lender being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Agent or any Lender with respect to an applicable interest in a Credit Extension pursuant to a law in effect on the date on which (i) Agent or any Lender acquires such interest in the Credit Extensions or (ii) Agent or any Lender changes its lending office, except in each case to the extent that, pursuant to Section 1.7, amounts with respect to such Taxes were payable either to Agent’s or such Lender’s assignor immediately before Agent or such Lender became a party hereto or to Agent or such Lender immediately before it changed its lending office, (c) Taxes attributable to Agent’s or any Lender’s failure to comply with Section 1.7(e), and (d) any withholding Taxes imposed under FATCA.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Internal Revenue Code.
“Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day of such transactions received by SVB from three federal funds brokers of recognized standing selected by it.
“Final Payment” is a payment (in addition to and not a substitution for the regular monthly payments of accrued interest) due on the earliest to occur of (a) the Term Loan Maturity Date, (b) the repayment of the Term Loan Advance in full, (c) as required pursuant to Sections 1.5(c) or 1.5(d), or (d) the termination of this Agreement, in an amount equal to the original aggregate principal amount of the Term Loan Advance multiplied by one and 95/100 percent (1.95%).
“Financial Statement Repository” is Agent’s e-mail address specified in Section 10 or such other means of collecting information approved and designated by Agent after providing notice thereof to Borrower from time to time.
“Foreign Currency” is the lawful money of a country other than the United States.
“Funding Date” is any date on which a Credit Extension is made to or for the account of Borrower which shall be a Business Day.
“Funds Flow Memorandum” is that certain memorandum, in form and substance satisfactory to the Agent and attached to the Notice of Borrowing, detailing the source and use of the proceeds of the Term Loan Advance.
“FX Contract” is any foreign exchange contract by and between Borrower and FCB under which Borrower commits to purchase from or sell to FCB a specific amount of Foreign Currency at a set price or on a specified date.
“GAAP” is generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other Person as
may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination.
“General Intangibles” is all “general intangibles” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation, all Intellectual Property, claims, income and other tax refunds, security and other deposits, payment intangibles, contract rights, options to purchase or sell real or personal property, rights in all litigation presently or hereafter pending (whether in contract, tort or otherwise), insurance policies (including without limitation key man, property damage, and business interruption insurance), payments of insurance and rights to payment of any kind.
“Governmental Approval” is any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
“Governmental Authority” is any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization.
“Guarantor” is any Person providing a Guaranty in favor of Agent and the Lenders.
“Guaranty” is any guarantee of all or any part of the Obligations, as the same may from time to time be amended, restated, modified or otherwise supplemented.
“HE Federal” is defined in the preamble hereof.
“HEF” is defined in the preamble hereof
“Hercules” is defined in the preamble hereof.
“Hercules Capital” is defined in the preamble hereof.
“HGLF IV” is defined in the preamble hereof.
“HPCF 1” is defined in the preamble hereof.
“HVGCOF 1” is defined in the preamble hereof.
“Indebtedness” is (a) indebtedness for borrowed money or the deferred price of property or services, such as reimbursement and other obligations for surety bonds, letters of credit and credit cards, (b) obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease obligations, (d) Contingent Obligations and (e) other short- and long-term obligations under debt agreements, lines of credit and extensions of credit.
“Indemnified Claims” is defined in Section 12.3.
“Indemnified Person” is defined in Section 12.3.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Information” is defined in Section 12.8.
“Insolvency Proceeding” is any proceeding by or against any Person under the United States Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit of creditors, compositions,
extensions generally with its creditors, or proceedings seeking reorganization, arrangement, receivership or other relief.
“Intellectual Property” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following:
(a) its Copyrights, Trademarks and Patents;
(b) any and all trade secrets and trade secret rights, including, without limitation, any rights to unpatented inventions, know-how and operating manuals;
(c) any and all source code;
(d) any and all design rights which may be available to such Person;
(e) any and all claims for damages by way of past, present and future infringement of any of the foregoing, with the right, but not the obligation, to sue for and collect such damages for said use or infringement of the Intellectual Property rights identified above; and
(f) all amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents.
“Interest Expense” means for any fiscal period, interest expense (whether cash or non-cash) determined in accordance with GAAP for the relevant period ending on such date, including, in any event, interest expense with respect to any Credit Extension and other Indebtedness of applicable target and its Subsidiaries, including, without limitation or duplication, all commissions, discounts, or related amortization and other fees and charges with respect to letters of credit and bankers’ acceptance financing and the net costs associated with interest rate swap, cap, and similar arrangements, and the interest portion of any deferred payment obligation (including leases of all types).
“Internal Revenue Code” means the U.S. Internal Revenue Code of 1986, and the rules and regulations promulgated thereunder, each as amended or modified from time to time.
“Inventory” is all “inventory” as defined in the Code in effect on the date hereof with such additions to such term as may hereafter be made, and includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products, including without limitation such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returned goods and any documents of title representing any of the above.
“Investment” is any beneficial ownership interest in any Person (including stock, partnership, membership, or other ownership interest or other equity securities), and any loan, advance or capital contribution to any Person.
“IP Agreement” is that certain Intellectual Property Security Agreement between Borrower and Agent dated as of the Effective Date, as may be amended, modified or restated from time to time.
“IPO” is Parent’s initial, underwritten offering and sale of its securities to the public pursuant to an effective registration statement under the Securities Act of 1933, as amended.
“ISA” is INNOVATIVE SIGNAL ANALYSIS INC., a Texas corporation.
“Key Person” is Parent’s Chief Executive Officer, who is John Serafini as of the Effective Date.
“Lender Entities” is defined in Section 12.8.
“Lender Expenses” are all of Agent’s and the Lenders’ audit fees, costs and reasonable and documented expenses (including reasonable, out-of-pocket and documented attorneys’ fees and expenses) for preparing, amending, negotiating, administering, defending and enforcing the Loan Documents (including, without limitation, those
incurred in connection with appeals or Insolvency Proceedings) or otherwise incurred with respect to Borrower or any Guarantor in connection with the Loan Documents.
“Lender” and “Lenders” is defined in the preamble.
“Letter of Credit” is a standby or commercial letter of credit issued by FCB upon request of Borrower based upon an application, guarantee, indemnity, or similar agreement.
“Lien” is a claim, mortgage, deed of trust, levy, attachment charge, pledge, hypothecation, security interest or other encumbrance of any kind, whether voluntarily incurred or arising by operation of law or otherwise against any property.
“Loan Documents” are, collectively, this Agreement and any schedules, exhibits, certificates, notices, and any other documents related to this Agreement, the Perfection Certificate, the Warrant, each Funds Flow Memorandum, the Stock Pledge Agreement, the IP Agreement, any Control Agreements, any Bank Services Agreement, any subordination agreement, any note, or notes or guaranties executed by Borrower or any Guarantor, landlord waivers and consents, bailee waivers and consents, and any other present or future agreement by Borrower and/or any Guarantor with or for the benefit of Agent and the Lenders in connection with this Agreement or Bank Services, all as amended, restated, or otherwise modified in accordance with the terms thereof from time to time.
“Material Adverse Change” is (a) a material impairment in the perfection or priority of Agent’s Lien in the Collateral or in the value of such Collateral; (b) a material adverse change in the business, operations, or condition (financial or otherwise) of Borrower; or (c) a material impairment of the prospect of repayment of any portion of the Obligations.
“Net Income” means, as calculated on a consolidated basis for the applicable target and its Subsidiaries for any period as at any date of determination, the net profit (or loss), after provision for taxes, of the applicable target and its Subsidiaries for such period taken as a single accounting period.
“Notice of Borrowing” is that certain form in the form attached hereto as Exhibit B.
“Obligations” are Borrower’s obligations to pay when due any debts, principal (including the PIK Amount), interest, fees, Lender Expenses, the Prepayment Fee, the Final Payment, and other amounts Borrower owes Agent and the Lenders now or later, whether under this Agreement, the other Loan Documents (other than the Warrant), or otherwise, including, without limitation, all obligations relating to Bank Services and interest accruing after Insolvency Proceedings begin and debts, liabilities, or obligations of Borrower assigned to Agent and/or the Lenders or their Affiliates, and to perform Borrower’s duties under the Loan Documents (other than the Warrant).
“OFAC” is the Office of Foreign Assets Control of the United States Department of the Treasury and any successor thereto.
“Operating Documents” are, for any Person, such Person’s formation documents, as certified by the Secretary of State (or equivalent agency) of such Person’s jurisdiction of organization on a date that is no earlier than 30 days prior to the Effective Date, and, (a) if such Person is a corporation, its bylaws in current form, (b) if such Person is a limited liability company, its limited liability company agreement (or similar agreement), and (c) if such Person is a partnership or limited partnership, its partnership agreement or limited partnership agreement (or similar agreement), each of the foregoing with all current amendments or modifications thereto.
“Other Connection Taxes” means, with respect to Agent or any Lender, Taxes imposed as a result of a present or former connection between Agent or such Lender and the jurisdiction imposing such Tax (other than connections arising from Agent or such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Credit Extension or Loan Document).
“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Parent” is set forth in the first paragraph of this Agreement.
“Participant” is defined in Section 12.2(c).
“Participant Register” is defined in Section 12.2(c).
“Patents” means all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.
“Payment Date” is set forth on Schedule I hereto.
“Payment Recipient” has the meaning assigned to it in Section 9.13(a).
“Perfection Certificate” is the Perfection Certificate delivered by Borrower in connection with this Agreement, as may be updated from time to time pursuant to the terms herein.
“Permitted Acquisition” means a transaction whereby Borrower acquires all or substantially all of the capital stock or property of another Person, which satisfies each of the following conditions:
(a) Borrower has delivered to Agent, evidence satisfactory to Agent in its sole and absolutely discretion that it will be in compliance with Section 5.8 of this Agreement at the time of any Permitted Acquisition and immediately after giving effect to such Permitted Acquisition;
(b) such transaction shall only involve an entity formed, and assets located, in the United States, and the party or parties being acquired is in the same or a substantially similar line of business as Borrower;
(c) no Event of Default has occurred and is continuing or would exist after giving effect to the transaction and Agent has received satisfactory evidence that Borrower is in compliance with all terms and conditions of this Agreement (and that it will be in compliance after giving effect to the transaction);
(d) the acquisition is approved by the Board (or equivalent control group) of all parties to the transaction;
(e) the total aggregate value of the consideration to be paid by Borrower and its Subsidiaries (including, without limitation, any earn-out and other deferred consideration obligations, but excluding capital stock of Parent that is not Disqualified Stock) in connection therewith in all of the contemplated transactions during the term of this Agreement does not exceed $12,500,000;
(f) Borrower provides Agent (i) written notice of the transaction at least 10 days before the closing of the transaction, and (ii) copies of the acquisition agreement and other material documents relative to the contemplated transaction and such other financial information, financial analysis, documentation or other information relating to such transaction as Agent shall reasonably request at least 10 days before the closing of the transaction;
(g) Borrower is a surviving legal entity after completion of the contemplated transaction;
(h) the contemplated transaction is consensual and non-hostile;
(i) no Indebtedness will be incurred, assumed, or would exist with respect to Borrower or its Subsidiaries as a result of the contemplated transaction, other than Permitted Indebtedness, and no Liens will be
incurred, assumed, or would exist with respect to the assets of Borrower or its Subsidiaries as a result of the contemplated transaction, other than Permitted Liens;
(j) any direct Subsidiary of Borrower acquired in the contemplated transaction shall, within 30 days (or such longer period of time as Agent may agree in writing) of the consummation of the transaction, become a Borrower) hereunder and provide to Agent a joinder to this Agreement to cause such Subsidiary to become a co-borrower hereunder, together with such appropriate financing statements and/or Control Agreements, all in form and substance reasonably satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such Subsidiary;
(k) the acquisition and the company being acquired is accretive in all respects;
(l) the assets being acquired or the target whose stock is being acquired did not have pro forma Consolidated Adjusted EBITDA that is negative (after taking into account reasonable adjustments, including the effects of proposed consolidation and restructuring by Borrower after such proposed purchase or acquisition) during the 12 month consecutive period most recently concluded prior to the consummation of such proposed acquisition; and
(m) Borrower shall have delivered to Agent, at least 5 Business Days prior to the date on which any such acquisition is to be consummated (or such later date as is agreed by Agent in its sole discretion), a certificate of a Responsible Officer of Borrower, in form and substance reasonably satisfactory to Agent, certifying that all of the requirements set forth in this definition have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition.
“Permitted Indebtedness” is:
(a) Borrower’s Indebtedness to Agent and the Lenders under this Agreement and the other Loan Documents;
(b) Indebtedness existing on the Effective Date which is shown on the Perfection Certificate;
(c) Subordinated Debt; provided that any convertible Indebtedness issued by Parent that is Subordinated Debt shall not require cash interest, principal or fees to be paid prior to maturity and shall have a maturity date at least 91 days after the Term Loan Maturity Date and the Term Loan Maturity Date (as defined in the Senior Loan Agreement (or any successor or replacement definition));
(d) unsecured Indebtedness to trade creditors incurred in the ordinary course of business;
(e) Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business;
(f) Indebtedness secured by Liens permitted under clauses (a) and (c) of the definition of “Permitted Liens” hereunder;
(g) Indebtedness in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be due and payable or with respect to which Borrower is contesting the amount or validity thereof in accordance with Section 4.8;
(h) Indebtedness consisting of judgments not otherwise constituting an Event of Default under Section 7.7;
(i) Indebtedness consisting of Permitted Investments under clauses (l) and (n) of the definition of “Permitted Liens” hereunder;
(j) extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness (a) through (i) above, provided that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome terms upon Borrower or its Subsidiary, as the case may be;
(k) Indebtedness in connection with the Senior Loan Agreement so long as such Indebtedness is subject to the Subordination Agreement;
(l) Indebtedness to FCB in connection with Bank Services (other than the letters of credit set forth in clause (m) below) in an aggregate principal amount not to exceed $5,000,000 at any time;
(m) Indebtedness in connection with those certain letters of credit identified as numbers 001100442795, 001100545359, and 001100545590 issued by FCB in the aggregate face amounts of $4,587,194.75, including any renewals or extensions thereof; and
(n) other unsecured Indebtedness not otherwise permitted by Section 6.4 not exceeding $200,000 in the aggregate outstanding at any time.
“Permitted Investments” are:
(a) Investments (including, without limitation, Subsidiaries) existing on the Effective Date which are shown on the Perfection Certificate;
(b) (i) Investments consisting of Cash Equivalents and (ii) any Investments permitted by Borrower’s investment policy, as amended from time to time, provided that such investment policy (and any such amendment thereto) has been approved in writing by Agent;
(c) Investments accepted in connection with Transfers permitted by Section 6.1;
(d) Investments consisting of the creation of a Subsidiary for the purpose of consummating a merger transaction permitted by Section 6.3 of this Agreement, which is otherwise a Permitted Investment;
(e) Investments consisting of Permitted Acquisitions;
(f) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of Borrower’s business;
(g) Investments in an aggregate outstanding amount not to exceed $500,000 at any time, consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business, and (ii) loans to employees, officers, directors, partners, managers and members relating to the purchase of equity securities of Borrower or its Subsidiaries pursuant to employee equity purchase plans or similar agreements approved by the Board;
(h) to the extent it is deemed to be an Investment, up-front fees, license fees, milestone payments, royalty payments and other cash payments arising in the ordinary course of business in connection with the acquisition of rights to intellectual property of a third party;
(i) Investments consisting of deposit or securities accounts (but only to the extent that Borrower is permitted to maintain such accounts pursuant to Section 5.7 of this Agreement) in which, to the extent required pursuant to Section 5.7 and Section 5.15, Agent has a Control Agreement in its favor;
(j) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business;
(k) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business; provided that this paragraph (j) shall not apply to Investments of Borrower in any Subsidiary;
(l) Investments by (i) Borrower in any Subsidiaries which are not a Borrower or Guarantor for ordinary, necessary and current operating expenses in an amount not to exceed $200,000 in the aggregate amongst all such Subsidiaries in any 12 month period, so long as an Event of Default does not exist at the time of any such Investment and would not exist after giving effect to any such Investment, (ii) Subsidiaries which are not a Borrower or Guarantor in other Subsidiaries for ordinary, necessary and current operating expenses, (iii) any Subsidiary in Borrower, (iv) a Borrower in another Borrower and (v) Borrower in any Subsidiary which is a Borrower or Guarantor;
(m) joint ventures or strategic alliances in the ordinary course of Borrower’s business consisting of the non-exclusive licensing of technology, the development of technology or the providing of technical support, provided that any cash investments by Borrower do not exceed $200,000 in the aggregate in any 12 month period; and
(n) other Investments not otherwise permitted by Section 6.7 not exceeding $200,000 in the aggregate in any 12 month period.
“Permitted Liens” are:
(a) Liens existing on the Effective Date which are shown on the Perfection Certificate or arising under this Agreement or the other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or levies, either (i) not due and payable or (ii) being contested in good faith and for which Borrower maintains adequate reserves on Borrower’s Books, provided that no notice of any such Lien has been filed or recorded under the Internal Revenue Code;
(c) purchase money Liens or capital leases (i) on Equipment acquired or held by Borrower incurred for financing the acquisition of the Equipment securing no more than $200,000 in the aggregate amount outstanding, or (ii) existing on Equipment when acquired, if the Lien is confined to the property and improvements and the proceeds of the Equipment;
(d) non-exclusive licenses of Intellectual Property granted to third parties in the ordinary course of business;
(e) Liens of carriers, warehousemen, suppliers, or other Persons that are possessory in nature arising in the ordinary course of business so long as such Liens attach only to Inventory, securing liabilities in the aggregate amount not to exceed $250,000 and which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;
(f) Liens to secure payment of workers’ compensation, employment insurance, old-age pensions, social security and other like obligations incurred in the ordinary course of business (other than Liens imposed by ERISA);
(g) Liens, deposits and pledges to secure the performance of bids, tenders, contracts (other than contracts for the payment of money), public or statutory obligations, surety, stay, appeal, indemnity, performance or other similar bonds or other similar obligations arising in the ordinary course of business in an aggregate amount not to exceed $250,000;
(h) Liens arising from attachments or judgments, orders, or decrees in circumstances not constituting an Event of Default under Sections 7.4 and 7.7;
(i) leases or subleases of real property granted in the ordinary course of Borrower’s business (or, if referring to another Person, in the ordinary course of such Person’s business), and leases, subleases, non-exclusive licenses or sublicenses of personal property (other than Intellectual Property) granted in the ordinary course of Borrower’s business (or, if referring to another Person, in the ordinary course of such Person’s business), if the leases, subleases, licenses and sublicenses do not prohibit granting Agent a security interest therein;
(j) customary Liens of any bank in connection with statutory, common law and contractual rights of setoff and recoupment with respect to any deposit account or securities account of Borrower, provided that such account is permitted to be maintained pursuant to Section 5.7 of this Agreement;
(k) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
(l) Liens arising from the filing of any precautionary financing statement on operating leases covering the leased property, to the extent such operating leases are permitted under this Agreement;
(m) Liens in favor of customs or revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(n) Liens securing Indebtedness permitted pursuant to clause (k) of the definition of “Permitted Indebtedness” so long as such Liens are subject to the Subordination Agreement;
(o) Liens on cash collateral securing Indebtedness permitted (i) pursuant to clause (l) of the definition of “Permitted Indebtedness” in an amount not to exceed $5,000,000 and (ii) pursuant to clause (m) of the definition of “Permitted Indebtedness” in an amount not to exceed the lesser of $4,587,194.75 (excluding interest, if any, thereon) and 108.0% of the face amount such letters of credit; and
(p) Liens incurred in the extension, renewal or refinancing of the Indebtedness secured by Liens described in (a) through (n), to the extent such extension, renewal or refinancing is permitted hereunder, but any extension, renewal or replacement Lien must be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness may not increase.
“Person” is any individual, sole proprietorship, partnership, limited liability company, joint venture, company, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or government agency.
“PIK Amount” is set forth on Schedule I hereto.
“PIK Rate” is set forth on Schedule I hereto.
“Pinegrove” is defined in the preamble hereof.
“Proceeds of Collection” is defined in Section 9.14(e).
“Prepayment Fee” shall be an additional fee, payable to (x) Agent, for the account of the Lenders in accordance with their respective Pro Rata Shares in an amount equal to, if such prepayment is made prior to the two (2) year anniversary of the Effective Date, one percent (1.0%) of the principal amount prepaid. Notwithstanding the foregoing, Agent and Lenders shall waive the Prepayment Fee and no Prepayment Fee is due if the Term Loan Advances are (a) refinanced using the proceeds of a new credit facility from each of FCB, Hercules and Pinegrove (or, in each case, one of their Affiliated funds or investment vehicles), (b) prepaid within 60 days of the consummation of an IPO, or (b) prepaid pursuant to Section 1.2.
“Prime Rate” is set forth on Schedule I hereto.
“Pro Rata Share” is, as of any date of determination, with respect to each Lender, a percentage (expressed as a decimal, rounded to the ninth decimal place) determined by dividing the outstanding principal amount of Term Loan Advance held by such Lender by the aggregate outstanding principal amount of all Term Loan Advance.
“Protected Person” is defined in Section 12.3.
“Register” is defined in Section 9.11.
“Registered Organization” is any “registered organization” as defined in the Code with such additions to such term as may hereafter be made.
“Removal Effective Date” is defined in Section 9.12(d).
“Representatives” is defined in Section 12.8.
“Required Lenders” means:
(a) at any time multiple Lenders have advanced Term Loans or have Term Loan Commitments, at least two Lenders who hold more than a majority of the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding and (ii) the aggregate Term Commitments then in effect; provided that (x) a Lender and its Affiliates shall be deemed one Lender and (y) for so long as a Lender on the Effective Date (each an “Original Lender”) has not assigned or transferred any of its interests in their Term Loan other than to an Affiliate of such Lender, such Original Lender shall be a Required Lender; and
(b) at any time only one Lender has outstanding Term Loans and Term Commitments, “Required Lenders” means such Lender;
provided that no Defaulting Lender shall at any time be included in the determination of “Required Lenders”.
“Responsible Officer” is any of the Chief Executive Officer, President, Chief Financial Officer and Controller, or other similar officer of Borrower.
“Restricted License” is any material license or other material agreement (other than over-the-counter software commercially available to the public) with respect to which Borrower is the licensee (a) that prohibits or otherwise restricts Borrower from granting a security interest in Borrower’s interest in such license or agreement or any other property, or (b) for which a default under or termination of could interfere with Agent’s and the Lenders’ right to sell any Collateral; provided, however, that off-the-shelf software, open source code, application programming interfaces (APIs) and/or other trademarks, copyrights or patents or similar proprietary rights of others that are commercially available to the public under shrinkwrap licenses, clickwrap licenses, online terms of service or other terms of use or similar agreements in the ordinary course of business shall not constitute a Restricted License.
“SAM Account” is defined in Section 5.7(c).
“Sanctioned Person” means a Person that: (a) is listed on any Sanctions list maintained by OFAC or any similar Sanctions list maintained by any other Governmental Authority having jurisdiction over Borrower; (b) is located, organized, or resident in any country, territory, or region that is the subject or target of Sanctions; or (c) is 50.0% or more owned or controlled by one (1) or more Persons described in clauses (a) and (b) hereof.
“Sanctions” means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by the United States government and any of its agencies, including, without limitation, OFAC and the U.S. State Department, or any other Governmental Authority having jurisdiction over Borrower.
“SEC” is the Securities and Exchange Commission, any successor thereto, and any analogous Governmental Authority.
“Securities Account” is any “securities account” as defined in the Code with such additions to such term as may hereafter be made.
“Senior Lender” is “Bank” (as defined in the Senior Loan Agreement (or any successor or replacement definition)).
“Senior Loan Agreement” means that certain Loan and Security Agreement by and between Senior Lender and Borrower dated as of the Effective Date, as may be amended, modified, supplemented and/or restated from time to time in accordance with the Subordination Agreement.
“Series E Equity Financing” means the Parent’s sale of Series E preferred stock.
“SMA” is defined in the preamble hereof.
“Stock Pledge Agreement” is that certain Stock Pledge Agreement between Borrower and Agent dated as of the Effective Date, as may be amended, modified or restated from time to time.
“Subordinated Debt” is indebtedness incurred by Borrower or any of its Subsidiaries subordinated to all of Borrower’s or any of its Subsidiaries’ now or hereafter indebtedness to Agent and the Lenders (pursuant to a subordination, intercreditor, or other similar agreement in form and substance satisfactory to Agent entered into between Agent and the other creditor), on terms acceptable to Agent.
“Subordination Agreement” means that certain Subordination Agreement by and among Senior Lender, Agent and the Lenders, dated as of the Effective Date (as the same may from time to time be amended, modified, supplemented and/or restated).
“Subsidiary” is, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock, partnership, membership, or other ownership interest or other equity securities having ordinary voting power (other than stock, partnership, membership, or other ownership interest or other equity securities having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless the context otherwise requires, each reference to a Subsidiary herein shall be a reference to a Subsidiary of Borrower or Guarantor.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan Advance” is defined in Section 1.1 of this Agreement.
“Term Loan Commitment” means, for any Lender, the obligation of such Lender to make a Term Loan Advance as and when available, up to the principal amount shown on Schedule II hereto.
“Term Loan Commitment Fee” is set forth on Schedule I hereto.
“Term Loan Commitments” means the aggregate amount of such commitments of all Lenders.
“Term Loan Commitment Percentage” means, as to any Lender at any time, the percentage (carried out to the fourth decimal place) of the Term Loan Commitments represented by such Lender’s Term Loan Commitment at such time. The initial Term Loan Commitment Percentage of each Lender is set forth opposite the name of such Lender on Schedule II hereto.
“Term Loan Maturity Date” is set forth on Schedule I hereto.
“Trademarks” means, with respect to any Person, any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of such Person connected with and symbolized by such trademarks.
“Transfer” is defined in Section 6.1.
“USA Patriot Act” means the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” (Public Law 107-56, signed into law on October 26, 2001), as amended from time to time.
“Warrant” means, collectively, (a) that certain Warrant to Purchase Stock dated as of the Effective Date between Borrower and FCB, (b) that certain Warrant to Purchase Stock dated as of the Effective Date between Borrower and AICF II, (c) that certain Warrant to Purchase Stock dated as of the Effective Date between Borrower and SMA (d) that certain Warrant to Purchase Stock dated as of the Effective Date between Borrower and Hercules Capital, (e) that certain Warrant to Purchase Stock dated as of the Effective Date between Borrower and HPCF 1, (f) that certain Warrant to Purchase Stock dated as of the Effective Date between Borrower and HVGCOF 1, (g) that certain Warrant to Purchase Stock dated as of the Effective Date between Borrower and HGLF IV, and (h) that certain Warrant to Purchase Stock dated as of the Effective Date between Borrower and HEF in the case of (a) through (h), each as may be amended, modified, supplemented and/or restated from time to time.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.
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| BORROWER: |
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| HAWKEYE 360, INC. |
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| By: | /s/ Craig Searle |
| Name: Craig Searle |
| Title: Chief Financial Officer and Treasurer |
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| HAWKEYE 360 FEDERAL, INC. |
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| By: | /s/ Todd Probert |
| Name: Todd Probert |
| Title: President |
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| AGENT: |
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| FIRST-CITIZENS BANK & TRUST COMPANY |
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| By: | /s/ Tyler Dietrich |
| Name: Tyler Dietrich |
| Title: Managing Director |
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| LENDERS: |
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| FIRST-CITIZENS BANK & TRUST COMPANY |
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| By: | /s/ Tyler Dietrich |
| Name: Tyler Dietrich |
| Title: Managing Director |
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| ARIZONA INNOVATION CREDIT FUND, L.P., as a lender on behalf of Arizona Innovation Credit Fund, L.P. – Pool II |
| | |
| By: Pinegrove Innovation Credit Partners SMA II,
LLC, a Delaware limited liability company, its
General Partner |
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| | |
| By: | /s/ Ryan Grammer |
| Name: Ryan Grammer |
| Title: Partner |
Signature Page to Mezzanine Loan and Security Agreement
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| INNOVATION CREDIT SMA II, L.P., as a lender on behalf of Innovation Credit SMA II, L.P. – Pool II |
| | |
| By: Pinegrove Innovation Credit Partners SMA II,
LLC, a Delaware limited liability company, its
General Partner |
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| By: | /s/ Ryan Grammer |
| Name: Ryan Grammer |
| Title: Partner |
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| HERCULES CAPITAL, INC., as a lender |
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| By: | /s/ Prentis Robinson III |
| Name: Prentis Robinson III |
| Title: Associate General Counsel |
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| HERCULES PRIVATE CREDIT FUND 1 L.P., as a lender |
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| By: Hercules Private Global Venture Growth Fund GP I LLC, its General Partner |
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| By: | /s/ Prentis Robinson III |
| Name: Prentis Robinson III |
| Title: Authorized Signatory |
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| HERCULES VENTURE GROWTH CREDIT OPPORTUNITIES FUND 1 L.P., as a lender |
| | |
| By: Hercules Venture Growth Credit Opportunities Fund GP I LLC, its General Partner |
| | |
| By: | /s/ Prentis Robinson III |
| Name: Prentis Robinson III |
| Title: Authorized Signatory |
| | |
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| HERCULES GROWTH LENDING FUND IV LP, as a lender |
| | |
| By: Hercules Growth Lending Fund GP LLC,
its General Partner |
| | |
| | |
| By: | /s/ Prentis Robinson III |
| Name: Prentis Robinson III |
| Title: Authorized Signatory |
Signature Page to Mezzanine Loan and Security Agreement
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| HERCULES EVERGREEN FUND LP, as a lender |
| | |
| By: Hercules Evergreen Fund GP LLC,
its General Partner |
| | |
| | |
| By: | /s/ Prentis Robinson III |
| Name: Prentis Robinson III |
| Title: Authorized Signatory |
Signature Page to Mezzanine Loan and Security Agreement
SCHEDULE I
LSA PROVISIONS
SCHEDULE II
TERM LOAN COMMITMENTS
EXHIBIT A
COMPLIANCE STATEMENT
EXHIBIT B
Notice of Borrowing
Exhibit A
Funds Flow Memorandum
HAWKEYE 360, INC.
NON-EMPLOYEE DIRECTOR COMPENSATION POLICY
Each member of the Board of Directors (the “Board”) who is not also serving as an employee of or consultant to HawkEye 360, Inc. (the “Company”) or any of its subsidiaries (each such member, an “Eligible Director”) will receive the compensation described in this Non-Employee Director Compensation Policy for his or her Board service upon and following the date of the underwriting agreement between the Company and the underwriters managing the initial public offering of the Company’s common stock (the “Common Stock”), pursuant to which the Common Stock is priced in such initial public offering (the “Effective Date”). An Eligible Director may decline all or any portion of his or her compensation by giving notice to the Company prior to the date cash may be paid or equity awards are to be granted, as the case may be. This policy is effective as of the Effective Date and may be amended at any time in the sole discretion of the Board or the Compensation Committee of the Board. Unless defined in this policy, capitalized terms used in this policy will have the meaning given to such terms in the Company’s 2026 Equity Incentive Plan, as amended from time to time (the “Plan”).
Annual Cash Compensation
The annual cash compensation amount set forth below is payable to Eligible Directors in equal quarterly installments, payable in arrears on the last day of each fiscal quarter in which the service occurred. If an Eligible Director joins the Board or a committee of the Board at a time other than effective as of the first day of a fiscal quarter, each annual retainer set forth below will be pro-rated based on days served in the applicable fiscal quarter, with the pro-rated amount paid on the last day of the first fiscal quarter in which the Eligible Director provides the service and regular full quarterly payments thereafter. All annual cash fees are vested upon payment.
1. Annual Board Service Retainer:
a. All Eligible Directors: $50,000
b. Non-Executive Chair of the Board Service Retainer (in addition to Eligible Director Service Retainer): $50,000
2. Annual Committee Chair Service Retainer:
a. Chair of the Audit Committee: $20,000
b. Chair of the Compensation Committee: $15,000
c. Chair of the Nominating and Corporate Governance Committee: $10,000
d. Chair of the Government and Security Committee: $10,000
3. Annual Committee Member Service Retainer (not applicable to Committee Chairs):
a. Member of the Audit Committee: $10,000
b. Member of the Compensation Committee: $7,500
c. Member of the Nominating and Corporate Governance Committee: $5,000
d. Member of the Government and Security Committee: $5,000
Expenses
The Company will reimburse Eligible Directors for ordinary, necessary and reasonable out-of-pocket travel expenses to cover in-person attendance at and participation in Board and committee meetings; provided, that the Eligible Director timely submit to the Company appropriate documentation substantiating such expenses in accordance with the Company’s travel and expense policy, as in effect from time to time.
Equity Compensation
The equity compensation set forth below will be granted under the Plan, subject to the approval of the Plan by the Company’s stockholders. All equity awards granted under this policy will be restricted stock units (“RSUs”).
1. Initial Grants: For each Eligible Director who is first elected or appointed to the Board following the Effective Date, on the date of such Eligible Director’s initial election or appointment to the Board, the Eligible Director will be automatically, and without further action by the Board or the Compensation Committee of the Board, granted RSUs with an aggregate grant date fair value of $400,000 (the “Initial Grant”). The RSUs subject to each Initial Grant will vest over a three-year period, with one-third of the RSUs subject to the Initial Grant vesting in equal annual installments following the date of grant, such that the Initial Grant is fully vested on the third anniversary of the date of grant, in each case subject to the Eligible Director’s Continuous Service through each such vesting date; provided, that the Initial Grant will vest in full upon a Change in Control, subject to the Eligible Director’s Continuous Service through such date.
2. Annual Grants: On the date of each annual stockholder meeting of the Company held after the Effective Date, each Eligible Director who continues to serve as a non-employee member of the Board following such stockholder meeting (excluding any Eligible Director who is first appointed or elected by the Board at such meeting) will be automatically, and without further action by the Board or the Compensation Committee of the Board, granted RSUs with an aggregate grant date fair value of $200,000 (the “Annual Grant”). The RSUs subject to the Annual Grant will vest in full on the earlier of the first anniversary of the grant date or the next annual stockholder meeting of the Company, subject to the Eligible Director’s Continuous Service through each vesting date; provided, that the Annual Grant will in any case be fully vested on the date of Company’s next annual stockholder meeting, subject to the Eligible Director’s Continuous Service through such vesting date; provided, further, that the Annual Grant will vest in full upon a Change in Control, subject to the Eligible Director’s Continuous Service through such date. With respect to an Eligible Director who, following the Effective Date, was first elected or appointed to the Board on a date other than the date of the Company’s annual stockholder meeting, upon the Company’s first annual stockholder meeting following such Eligible Director’s first joining the Board, such Eligible Director’s first Annual Grant will be pro-rated to reflect the time between such Eligible Director’s election or appointment date and the date of such first annual stockholder meeting.
Non-Employee Director Compensation Limit
Notwithstanding the foregoing, the aggregate value of all compensation granted or paid, as applicable, to any individual for service as a Non-Employee Director (as defined in the Plan) shall in no event exceed the limits set forth in Section 3(d) of the Plan.
Subsidiaries of HawkEye 360, Inc.
| | | | | |
Name of Subsidiary | Jurisdiction of Organization |
HawkEye 360 Federal, Inc. | Delaware |
Innovative Signal Analysis, Inc. | Texas |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated April 10, 2026 with respect to the consolidated financial statements of HawkEye 360, Inc. contained in the Registration Statement and Prospectus. We consent to the use of the aforementioned report in the Registration Statement and Prospectus, and to the use of our name as it appears under the caption “Experts.”
Grant Thornton LLP
/s/ GRANT THORNTON LLP
Arlington, Virginia
April 10, 2026
Consent of Independent Auditors
We consent to the use in this Registration Statement on Form S-1 of Hawkeye360, Inc. of our report dated April 10, 2026, relating to the financial statements of Innovative Signal Analysis, Inc. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Baker Tilly US, LLP
Frisco, Texas
April 10, 2026
Consent of Renaissance Strategic Advisors
We hereby consent to (i) the use of and all references to the name Renaissance Strategic Advisors in the Registration Statement on Form S-1 and any amendments or supplements thereto (together, the “Registration Statement”) to be filed by HawkEye 360, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended, in connection with the initial public offering (the “IPO”) of the Company, (ii) the filing of this consent as an exhibit to the Registration Statement, and (iii) all references to, and excerpts, including data and statements, from, our study dated as of October 9, 2025 (the “Renaissance Study”), prepared for the Company and relating to the Company's total addressable market opportunity in the signals intelligence sector, in the Registration Statement. We also consent to the use of and all references to the name Renaissance Strategic Advisors, and to the quotation of data and statements from the Renaissance Study that are included in the Registration Statement, in institutional and retail road shows and other marketing activities in connection with the IPO that is the subject of the Registration Statement by the Company.
In giving these consents, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
| | | | | |
| Renaissance Strategic Advisors II, LLC |
| |
By: | /s/ Mikhail Grinberg |
Name: | Mikhail Grinberg |
Title: | Senior Partner |
