NTWO 8-K
Newbury Street II Acquisition Corp (NTWO)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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Item 1.01 Entry Into a Material Definitive Agreement.
Merger Agreement
This section describes certain material provisions of the Merger Agreement (as defined below) but does not purport to describe all of the terms thereof. The following summary is qualified in its entirety by reference to the complete text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1. Shareholders of Newbury Street II Acquisition Corp and other interested parties are urged to read the Merger Agreement in its entirety. Unless otherwise defined herein, the capitalized terms used below have the meanings given to them in the Merger Agreement.
General Terms and Effects; Merger Consideration
On August 17, 2026, Newbury Street II Acquisition Corp, a Cayman Islands exempted company (together with its successors, including after the Domestication (as defined below), “Newbury Street II” or “SPAC”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with (i) Hugo Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of Newbury Street II (“Merger Sub”), and (ii) Fort Robotics, Inc., a Delaware corporation (“Fort Robotics” or the “Company”).
Pursuant to the Merger Agreement, subject to the terms and conditions set forth therein, (i) prior to the closing (the “Closing”) of the transactions contemplated by the Merger Agreement (the “Transactions”), Newbury Street II will transfer by way of continuation out of the Cayman Islands and into the State of Delaware and domesticate as a Delaware corporation (the “Domestication”), (ii) at the Closing, Merger Sub will merge with and into Fort Robotics (the “Merger”), with Fort Robotics surviving such merger as a wholly-owned subsidiary of Newbury Street II (the “Surviving Corporation”), and (iii) as a result of the Merger, all of the issued and outstanding capital stock of Fort Robotics as of immediately prior to the effective time of the Merger will be cancelled and shall cease to exist, in exchange for the right of each Fort Robotics stockholder to receive its pro rata share of the Stockholder Merger Consideration (as defined below), all upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with applicable law.
The Merger Agreement provides that the total consideration received by Fort Robotics security holders from Newbury Street II at the Closing will be a number of shares of Newbury Street II common stock with an aggregate value equal to the sum of (i) Five Hundred Million Dollars ($500,000,000) (the “Merger Consideration” and such shares, the “Merger Consideration Shares”), with each share of Newbury Street II common stock valued at $10.00 (the total portion of the Merger Consideration amount payable to all Fort Robotics stockholders in accordance with the Merger Agreement is also referred to as the “Stockholder Merger Consideration”) plus (ii) the aggregate amount of the Permitted Company SAFE Conversion Amounts, with the holders of Fort Robotics’ Simple Agreements for Future Equity entered into during the Interim Period (the “Permitted Company SAFEs”) receiving, if any, in full settlement for the conversion and cancellation of each such Permitted Company SAFE, a number of shares of Newbury Street II common stock determined in accordance with the terms of such Permitted Company SAFEs.
Each outstanding Company Option, whether vested or unvested, will be assumed by Newbury Street II and automatically converted into an option for shares of Newbury Street II common stock. All Fort Robotics convertible securities (other than the Company Options and certain outstanding warrants) outstanding and not exercised or converted prior to the Closing will be terminated as of the Closing.
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Representations and Warranties
The Merger Agreement contains customary representations and warranties made by each of Newbury Street II and Fort Robotics. Certain of the representations and warranties are qualified by materiality or Material Adverse Effect, as well as information provided in the disclosure schedules to the Merger Agreement. As used in the Merger Agreement, “Material Adverse Effect” means, with respect to any specified person, any fact, event, occurrence, change or effect that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect (i) upon the business, assets, liabilities, results of operations or condition (financial or otherwise) of such person and its subsidiaries, taken as a whole, or (ii) the ability of such person or any of its subsidiaries on a timely basis to consummate the Transactions, subject to customary exceptions with respect to clause (i) above.
No Survival
The representations and warranties of the parties contained in the Merger Agreement terminate as of, and do not survive, the Closing, and there are no indemnification rights for another party’s breach. The covenants and agreements of the parties contained in the Merger Agreement do not survive the Closing, except those covenants and agreements to be performed after the Closing, which covenants and agreements will survive until fully performed.
Covenants of the Parties
Each party agreed in the Merger Agreement to use its commercially reasonable efforts to effect the Closing. The Merger Agreement also contains certain customary covenants by each of the parties during the period between the signing of the Merger Agreement and the earlier of the Closing or the termination of the Merger Agreement in accordance with its terms (the “Interim Period”), including those relating to: (i) the provision of access to properties, books and personnel; (ii) the operation of their respective businesses in the ordinary course of business; (iii) the provision of financial statements by Fort Robotics to Newbury Street II; (iv) Newbury Street II’s public filings; (v) no insider trading; (vi) notifications of certain breaches, consent requirements or other matters; (vii) efforts to consummate the Closing; (viii) tax matters; (ix) further assurances; (x) public announcements; and (xi) confidentiality.
Each party also agreed during the Interim Period not to solicit or enter into a competing alternative transaction in accordance with customary terms and provisions set forth in the Merger Agreement.
The Merger Agreement also contains certain customary post-Closing covenants regarding (a) maintenance of books and records; (b) indemnification of directors and officers and the purchase of directors’ and officers’ tail liability insurance; and (c) use of trust account proceeds.
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The parties made customary covenants regarding the registration statement on Form S-4 to be filed by Newbury Street II and Fort Robotics (as amended or supplemented from time to time, the “Registration Statement”) with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), to register the shares of Newbury Street II common stock to be issued as Merger Consideration Shares and the securities of Newbury Street II deemed reissued in the Domestication. The Registration Statement also will contain Newbury Street II’s proxy statement to solicit proxies from Newbury Street II’s shareholders to approve, at an extraordinary general meeting of Newbury Street II’s shareholders to be called and held for such purpose among other things, (i) the Merger Agreement and the Transactions, including the Merger and the Domestication; (ii) to the extent required by Nasdaq, the issuance of any shares in connection with the Transaction Financing (as defined below), including the approval of the issuance of more than 20% of the issued and outstanding Newbury Street II common stock; (iii) the Domestication, including the adoption of new organizational documents of Newbury Street II following the Domestication; (iv) the change of name of Newbury Street II Acquisition Corp to “Fort Robotics Holdings, Inc.” and the adoption and approval of the amended and restated organizational documents of Newbury Street II; (v) the adoption and approval of a new equity incentive plan of the Surviving Corporation; (vi) the appointment of the members of the post-Closing board of directors of Newbury Street II; and (vii) such other matters as Fort Robotics and Newbury Street II may mutually determine to be necessary or appropriate in order to effect the Merger, the Domestication and the other transactions contemplated by the Merger Agreement and (viii) the approval and adoption of the Insider Letter Agreement (as defined below);.
In addition, Fort Robotics agreed that as promptly as practicable after the Registration Statement has become effective, the requisite vote of Fort Robotics stockholders, by resolutions duly adopted at a meeting of the Fort Robotics’ stockholders or by unanimous written consent, shall have authorized, approved and consented to, the execution, delivery and performance of the Merger Agreement and each of the Ancillary Documents to which Fort Robotics is or is required to be a party or bound, and the consummation of the Transactions, including the Mergers and the Domestication.
The parties agreed that the post-Closing board of directors will consist of at least five but not more than seven individuals, with such number to be mutually agreed by Newbury Street II and Fort Robotics. The post-Closing board will include (i) two persons designated by Newbury Street II prior to the Closing, at least one of whom will qualify as independent under Nasdaq (or, if applicable, NYSE) rules, (ii) three persons designated by Fort Robotics prior to the Closing, at least two of whom will be required to qualify as independent under Nasdaq (or, if applicable, NYSE) rules, and (iii) up to an additional two persons as mutually agreed by Newbury Street II and Fort Robotics. The post-Closing board will serve staggered terms divided into three classes.
During the Interim Period, Newbury Street II may enter into financing agreements with potential investors (whether structured as a private placement of common equity, convertible preferred equity, convertible debt or other securities convertible into or that have the right to acquire common equity, as trust account non-redemption or backstop arrangements or otherwise), in each case with the prior consent of Fort Robotics and on terms mutually agreeable to Fort Robotics and Newbury Street II, acting reasonably (an “Additional Transaction Financing”, together with the Initial PIPE Investment (as defined below), a “Transaction Financing”). During the Interim Period, Fort Robotics may enter into the Permitted Company SAFEs in a form in compliance with the Merger Agreement.
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Conditions to Closing
The Merger Agreement contains customary conditions to Closing, including the following mutual conditions of the parties (unless waived): (i) approval of the shareholders of Newbury Street II; (ii) approval of the stockholders of Fort Robotics; (iii) approvals of any required governmental authorities and completion of the HSR Act expiration periods; (iv) no law preventing the Transactions; (v) the Registration Statement having been declared effective by the SEC; (vi) conditional approval for listing on Nasdaq or NYSE of the Newbury Street II common stock to be issued in connection with the Transactions; and (vii) consummation of Domestication.
In addition, unless waived by Fort Robotics, the obligations of Fort Robotics to consummate the Transactions are subject to the satisfaction of additional Closing conditions, in addition to the delivery by Newbury Street II of customary certificates and other Closing deliverables: (i) (a) the fundamental representations and warranties of Newbury Street II being true and correct in all material respects on and as of the date of the Merger Agreement and as of the date of the Closing, except to the extent made as of a particular date (subject to certain materiality qualifiers); (b) subject to certain exceptions, all the other representations and warranties of Newbury Street II being true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) in all respects on and as of the date of the Merger Agreement and as of the date of the Closing, except where the failure of such representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, Newbury Street II; (ii) Newbury Street II having performed in all material respects its obligations and complied in all material respects with its covenants and agreements under the Merger Agreement required to be performed or complied with by it on or prior to the date of the Closing and (iii) the absence of any Material Adverse Effect with respect to Newbury Street II since the date of the Merger Agreement which is continuing and uncured.
Unless waived by Newbury Street II, the obligations of Newbury Street II and Merger Sub to consummate the Transactions are subject to the satisfaction of the following additional Closing conditions, in addition to the delivery by Fort Robotics of customary certificates and other Closing deliverables and ancillary documents: (i) (a) the fundamental representations and warranties of Fort Robotics being true and correct in all material respects on and as of the date of the Merger Agreement and as of the date of the Closing, except to the extent made as of a particular date (subject to certain materiality qualifiers); (b) subject to certain exceptions, all the other representations and warranties of Fort Robotics being true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth therein) in all respects on and as of the date of the Merger Agreement and as of the date of the Closing, except where the failure of such representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, Fort Robotics and its subsidiaries; (ii) Fort Robotics having performed in all material respects its obligations and complied in all material respects with its covenants and agreements under the Merger Agreement required to be performed or complied with or by it on or prior to the date of the Closing; and (iii) the absence of any Material Adverse Effect with respect to Fort Robotics and its subsidiaries since the date of the Merger Agreement which is continuing and uncured.
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Termination
The Merger Agreement may be terminated under certain customary and limited circumstances at any time prior to the Closing, including: (i) by mutual written consent of Newbury Street II and Fort Robotics; (ii) by either Newbury Street II or Fort Robotics, if any of the conditions to Closing have not been satisfied or waived by May 17, 2027 (the “Outside Date”), subject to extension if Newbury Street II seeks and receives an extension of its deadline to consummate an initial business combination; (iii) by either Newbury Street II or Fort Robotics, if a governmental authority of competent jurisdiction has issued a final, non-appealable order or taken any other final, non-appealable action permanently restraining, enjoining or otherwise prohibiting the consummation of the Transactions, or if any law has been adopted that permanently makes consummation of such transactions illegal or otherwise prohibited; (iv) by either Newbury Street II or Fort Robotics in the event of the other party’s uncured breach, if such breach would result in the failure of the related Closing condition (and so long as the terminating party is not in breach under the Merger Agreement so as to prevent the conditions to Closing to be satisfied); (v) by Newbury Street II if there has been a Material Adverse Effect on Fort Robotics and its subsidiaries following the date of the Merger Agreement, which is uncured and continuing; (vi) by Fort Robotics if there has been a Material Adverse Effect on Newbury Street II following the date of the Merger Agreement, which is uncured and continuing; (vii) by either Newbury Street II or Fort Robotics, if Newbury Street II holds the extraordinary general meeting of its shareholders to approve the Merger Agreement and the Transactions, and the required shareholder approval is not obtained; and (viii) by either Newbury Street II or Fort Robotics, if Fort Robotics holds its special meeting, and the required Fort Robotics shareholder approval is not obtained.
If the Merger Agreement is terminated, all further obligations of the parties under the Merger Agreement (except for certain obligations related to publicity, confidentiality, fees and expenses, trust fund waiver, no recourse, termination and general provisions) will terminate, and no party to the Merger Agreement will have any further liability to any other party thereto, except for liability for fraud or for willful breach of any covenant, obligation or agreement in the Merger Agreement prior to termination.
Trust Account Waiver
Fort Robotics agreed that it and its affiliates will not have any right, title, interest or claim of any kind in or to any monies in Newbury Street II’s trust account held for its public shareholders, and agreed not to, and waived any right to, make any claim against the trust account (including any distributions therefrom), other than in connection with the Closing.
Governing Law
The Merger Agreement is governed by the laws of the State of Delaware and the parties are subject to exclusive jurisdiction of federal and state courts located in the State of Delaware (and any appellate courts thereof).
Related Agreements
Voting Agreement
Contemporaneously with the execution and delivery of the Merger Agreement, Newbury Street II and Fort Robotics entered into Voting and Support Agreements (collectively, the “Voting Agreements”) with certain stockholders of Fort Robotics holding sufficient voting power to approve the Merger and the Transactions, pursuant to which, among other things, such stockholders agreed (i) to vote their shares of Fort Robotics stock in favor of the adoption of the Merger Agreement, the Ancillary Documents and the approval of the Transactions, subject to certain customary conditions, (ii) to provide a proxy to Newbury Street II to vote such shares of Fort Robotics stock pursuant to the foregoing, (iii) to take certain other actions in support of the Merger Agreement and related transactions (and any actions required in furtherance thereof) and refrain from taking actions that would adversely affect such stockholders’ ability to perform their obligations under the Voting Agreements and (iv) not to transfer their shares of Fort Robotics stock during the period from and including the date of the Voting Agreement and the date on which the Voting Agreement is terminated.
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Lock-Up Agreements
Contemporaneously with the execution and delivery of the Merger Agreement, the directors and officers of Fort Robotics and owners of more than five (5%) of the issued and outstanding shares of Fort (the “Significant Company Holders”) entered into lock-up agreements (each, a “Lock-Up Agreement”) with Newbury Street II. Pursuant to the Lock-Up Agreements, the Merger Consideration Shares received by such holders will be subject to transfer restrictions during the period commencing on the Closing Date and ending on the earliest of (A) the one-year anniversary of the Closing Date, (B) the date upon which the volume-weighted average trading price of Newbury Street II common stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any twenty (20) trading days within any consecutive thirty (30) trading-day period commencing at least 150 days after the Closing Date and (C) the date after the Closing upon which Newbury Street II consummates a liquidation, merger, capital stock exchange, reorganization or other similar transaction with an unaffiliated third party that results in all of Newbury Street II’s stockholders having the right to exchange their equity holdings in Newbury Street II for cash, securities or other property.
Non-Competition and Non-Solicitation Agreements
Contemporaneously with the execution and delivery of the Merger Agreement, each member of the management team of Fort Robotics entered into a non-competition and non-solicitation agreement (each, a “Non-Competition and Non-Solicitation Agreement”) in favor of Fort Robotics and Newbury Street II and their respective present and future successors and direct and indirect subsidiaries (collectively, the “Covered Parties”). Pursuant to the Non-Competition and Non-Solicitation Agreements, each member of Fort Robotics management will agree for a period of two years after the Closing (i) not to compete with the Covered Parties in the United States or in any other market in which the Covered Parties operate, (ii) not to hire, engage or solicit the employees of the Covered Parties, (iii) not to solicit, reduce the amount of business, interfere with or disrupt any customers of the Covered Parties. Each member of the management team will also agree not to disparage the Covered Parties and to agree to customary confidentiality requirements.
Registration Rights Agreements
Prior to or at the Closing, Newbury Street II and certain Fort Robotics stockholders (the “Reg Rights Holders”) who are expected to be affiliates of Fort Robotics immediately after the Closing will enter into a Registration Rights Agreement (the “Registration Rights Agreement”). Pursuant to the terms of the Registration Rights Agreement, Newbury Street II will (i) use reasonable best efforts to file with the SEC (at Newbury Street II’s sole cost and expense) a registration statement registering the resale of certain securities held by or issuable to the Reg Rights Holders within 30 business days after the Closing (the “Resale Registration Statement”) and (ii) cause the Resale Registration Statement to become effective as soon as reasonably practicable after the filing thereof, but in no event later than the earlier of the 90th calendar day following the filing date if the SEC notifies Newbury Street II that it will review the Resale Registration Statement or the 5th business day after the SEC notifies Newbury Street II that it will not review the Resale Registration Statement. The Reg Rights Holders will also be entitled to certain demand registration rights and piggyback registration rights.
Insider Letter Amendment
Contemporaneously with the execution and delivery of the Merger Agreement, Newbury Street II, the Sponsor, Fort Robotics, and the directors and officers of Newbury Street II entered into an amendment (the “Insider Letter Amendment”) to that certain Letter Agreement, dated October 31, 2024 (the “Insider Letter”), by and among Newbury Street II, the Sponsor, Fort Robotics and the directors and officers of Newbury Street II. The Insider Letter Amendment provides that upon the Closing, (i) up to 2,038,424 Incentive Founder Shares that are actually used to incentivize investors in a Transaction Financing or to secure Trust Account non-redemption arrangements at or prior to the Closing will be released from transfer restrictions, subject to and contingent upon the Closing and (ii) an additional 118,196 Founder Shares shall be released from transfer restrictions, subject to and contingent upon the Closing.
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Sponsor Letter Agreement
Contemporaneously with the execution and delivery of the Merger Agreement, Newbury Street II entered into a letter agreement (the “Sponsor Letter Agreement”) with the Sponsor and Fort Robotics, pursuant to which, among other things, (i) the Sponsor agreed to forfeit, subject to and conditioned upon the Closing, 348,917 Founder Shares (the “Forfeited Founder Shares”), (ii) the Sponsor agreed that 453,159 Founder Shares(together with the Earnout Incentive Founder Shares (as defined below), the “Earnout Founder Shares”) are subject to forfeiture and shall vest only if certain of the Share Price Targets are achieved during the four-year period after Closing (the “Earnout Period”); (iii) the Sponsor must use up to an additional 2,038,424 Founder Shares (the “Incentive Founder Shares”) to incentivize investors in a Transaction Financing or secure Trust Account non-redemption arrangements; and (iv) to the extent that the Sponsor has not transferred or forfeited all of the Incentive Founder Shares at or prior to the Closing pursuant to the foregoing clause (iii), then 302,110 of such Incentive Founder Shares (the “Earnout Incentive Founder Shares”) shall be subject to forfeiture and shall vest only if certain of the Share Price Targets are achieved during the Earnout Period and Sponsor shall forfeit the remaining Incentive Founder Shares at the Closing; provided, however, that such Incentive Founder Shares and Earnout Founder Shares described in the foregoing clauses will remain subject to the transfer restrictions in the Insider Letter.
The Earnout Founder Shares shall vest and no longer be subject to forfeiture as follows:
| ● | if the volume-weighted average price of the shares of Newbury Street II common stock equals or exceeds $12.50 per share for any twenty (20) trading days within any consecutive thirty (30) trading-day period during the Earnout Period, 50% of the Earnout Founder Shares will vest and no longer be subject to forfeiture; and |
| ● | if the volume-weighted average price of the shares of Newbury Street II common stock equals or exceeds $15.00 per share, the remaining 50% of the Earnout Founder Shares will vest and no longer be subject to forfeiture. |
Notwithstanding the foregoing, in the event that during the Earnout Period, Newbury Street II is subject to a Qualifying Change of Control, then, all of the Earnout Founder Shares that have not previously vested shall vest and shall no longer be subject to forfeiture.
Sponsor Support Agreement
Contemporaneously with the execution and delivery of the Merger Agreement, Newbury Street II, Fort Robotics and the Sponsor, have entered into the Sponsor Support Agreement (the “Sponsor Support Agreement”), pursuant to which the Sponsor has agreed to, among other things, (i) vote (or cause to be voted) in favor of the Merger Agreement and the Transactions and against any Acquisition Proposal or Alternative Transaction or any other proposal, action or agreement that would or would reasonably be expected to deter the Transactions or Transactions; (ii) waive any adjustment to the conversion ratio set forth in the governing documents of Newbury Street II or any other anti-dilution or similar protection with respect to the Founder Shares; (iii) be bound by certain other covenants and agreements related to the Transactions; (iv) be bound by certain transfer restrictions with respect to its shares in Newbury Street II prior to the Closing; and (v) waive redemption rights, in each case, on the terms and subject to the conditions set forth in the Sponsor Support Agreement.
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PIPE Subscription Agreements
Contemporaneously with the execution of the Merger Agreement, certain investors (the “Initial PIPE Investors”) each entered into a subscription agreement (collectively, the “PIPE Subscription Agreements”) with Newbury Street II, pursuant to which, Newbury Street II agreed to issue, and the Initial PIPE Investors agreed to purchase, 3,125,000 shares of Newbury Street II common stock (the “Initial PIPE Shares”), at a purchase price of $10.00 per share for an aggregate purchase price of $31.25 million, in a private placement (the “Initial PIPE Investment”). The PIPE Subscription Agreements contain the option (at the election of the Initial PIPE Investors) to satisfy all or a portion of its obligations under the PIPE Subscription Agreement by agreeing to not redeem Class A ordinary shares held or subsequently acquired by them in connection with the extraordinary general meeting of Newbury Street II to be held to approve the Transactions. The consummation of the Initial PIPE Investment is conditioned on the concurrent Closing and other customary closing conditions. Each Initial PIPE Investor agreed in the PIPE Subscription Agreement that it and its affiliates will not have any right, title, interest or claim of any kind in or to any monies in Newbury Street II’s trust account held for its public shareholders, and agreed not to, and waived any right to, make any claim against the trust account (including any distributions therefrom). As part of the Initial PIPE Investment, an affiliate of William Zachre Wyatt, a director of Newbury Street II, subscribed for an aggregate purchase price of $5,000,000, and an affiliate of Anthony James Vinciquerra, a director of Newbury Street II, subscribed for an aggregate purchase price of $1,000,000.
Pursuant to the PIPE Subscription Agreement, in connection with the Initial PIPE Investment, the Sponsor will transfer, for no additional consideration, up to 980,012 Incentive Founder Shares to the Initial PIPE Investors. In addition, immediately prior to the Closing, Fort Robotics will issue shares of its common stock that, for no additional consideration, to the Initial PIPE Investors that upon Closing will convert into up to an aggregate of 412,648 shares of Newbury Street II common stock.
Pursuant to the PIPE Subscription Agreements, Newbury Street II has agreed to file a registration statement registering the resale of the Initial PIPE Shares within thirty (30) calendar days after Closing and use commercially reasonable efforts to cause such registration statement to be declared effective as soon as practicable after the filing.
Each PIPE Subscription Agreement shall terminate and be void and of no further force and effect upon the earliest to occur of (i) such date and time as the Merger Agreement is terminated in accordance with its terms; (ii) the mutual written agreement of the respective parties to terminate such PIPE Subscription Agreement; or (iii) written notice by either party to the other party to terminate if the transactions contemplated by the PIPE Subscription Agreement are not consummated on or prior to the Outside Date.
Amendment to Underwriting Agreement
As previously disclosed, Newbury Street II entered into an underwriting agreement, dated October 31, 2024 (the “Underwriting Agreement”), with BTIG, LLC (“BTIG”), as representative of the several underwriters, in connection with Newbury Street II’s initial public offering. On August 17, 2026, Newbury Street II and BTIG entered into an amendment to the Underwriting Agreement (the “Underwriting Agreement Amendment”), pursuant to which Newbury Street II and BTIG agreed to reduce the Deferred Underwriting Commissions from $6,037,500 to $2,000,000, solely in connection with the Transactions. In consideration of BTIG’s entry into the Underwriting Agreement Amendment, Newbury Street II agreed to appoint BTIG as the exclusive financial advisor and non-exclusive placement agent to Newbury Street II in connection with the Transactions. The Underwriting Agreement Amendment is void and of no effect if the Transactions or BTIG’s engagement as exclusive advisor are non-exclusive placement agent are terminated.
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The Merger Agreement and other agreements described above have been included to provide investors with information regarding their respective terms. They are not intended to provide any other factual information about Newbury Street II or Fort Robotics, or the other parties thereto. In particular, the assertions embodied in the representations and warranties in the Merger Agreement were made as of a specified date, are modified or qualified by information in one or more confidential disclosure schedules prepared in connection with the execution and delivery of the Merger Agreement, may be subject to a contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose of allocating risk between the parties. Accordingly, the representations and warranties in the Merger Agreement are not necessarily characterizations of the actual state of facts about Newbury Street II, Fort Robotics or the other parties thereto at the time they were made or otherwise and should only be read in conjunction with the other information that Newbury Street II makes publicly available in reports, statements and other documents filed with the SEC. Newbury Street II investors and securityholders are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Merger Agreement.
The foregoing descriptions of agreements and the transactions and documents contemplated thereby are not complete and are subject to and qualified in their entirety by reference to the Underwriting Agreement Amendment, Merger Agreement, Voting Agreements, Lock-Up Agreement, Non-Competition and Non-Solicitation Agreement, Registration Rights Agreement, Insider Letter Amendment, Sponsor Letter Agreement, Sponsor Support Agreement and PIPE Subscription Agreements, copies or forms of which are filed with this Current Report on Form 8-K as Exhibits 1.1, 2.1, 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 10.7 and 10.8, respectively, and the terms of which are incorporated by reference herein.
Item 3.02 Unregistered Sale of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein, to the extent applicable. The securities of Newbury Street II that may be issued in connection with the PIPE Subscription Agreements will not be registered under the Securities Act, in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
Item 7.01 Regulation FD Disclosure.
Attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated into this Item 7.01 by reference is the investor presentation of Fort Robotics dated August, 2026 (the “Investor Presentation”), which may be used by Fort Robotics and by Newbury Street II in connection with the transactions contemplated by the Merger Agreement described above. The Investor Presentation is intended to be furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act, except as expressly set forth by specific reference in such filing.
On August 18, 2026, Newbury Street II and Fort Robotics issued a joint press release announcing the execution of the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.2 and incorporated herein by reference.
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Additional Information and Where to Find It
In connection with the Transactions, Newbury Street II and the Company intend to file the Registration Statement on Form S-4, with the SEC, which will include a proxy statement to Newbury Street II shareholders and a prospectus for the registration of Newbury Street II’s securities to be issued in connection with the Transactions. This Current Report does not contain all the information that should be considered concerning the Transactions and is not intended to form the basis of any investment decision or any other decision in respect of the Transactions. Newbury Street II’s shareholders and other interested persons are advised to read, the Registration Statement and other documents filed in connection with the Transactions, as these materials will contain important information about the Company, Newbury Street II and the Transactions. Shareholders may obtain a copy of the Registration Statement, once available, as well as other documents filed by Newbury Street II with the SEC, without charge, at the SEC’s website located at www.sec.gov or by directing a written request to Newbury Street II Acquisition Corp, 121 High Street, Floor 3, Boston, Massachusetts 02110.
BEFORE MAKING ANY VOTING DECISION, INVESTORS AND SECURITY HOLDERS OF NEWBURY STREET II ARE URGED TO READ THE REGISTRATION STATEMENT AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC IN CONNECTION WITH THE TRANSACTIONS AS THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE TRANSACTIONS.
Participants in the Solicitation
Newbury Street II, the Company, and their respective directors, executive officers and other members of their management and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of Newbury Street II’s shareholders in connection with the Transactions. Investors and security holders may obtain more detailed information regarding the names, affiliations and interests of certain of Newbury Street II’s executive officers and directors in the solicitation by reading Newbury Street II’s filings with the SEC, including the final prospectus of Newbury Street II dated as of October 31, 2024 and filed by Newbury Street II with the SEC on November 1, 2024 (the “IPO Prospectus”). To the extent that holdings of Newbury Street II’s securities have changed from the amounts reported in the IPO Prospectus, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Information concerning the interests of Newbury Street II’s and the Company’s participants in the solicitation, which may, in some cases, be different than those of their respective equity holders generally, will be set forth in the Registration Statement relating to the Transactions when it becomes available.
No Offer or Solicitation
This Current Report does not constitute an offer to sell or a solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act or an exemption therefrom.
10
NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED HEREIN, PASSED UPON THE MERITS OR FAIRNESS OF THE TRANSACTIONS OR ANY RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE INFORMATION IN THIS CURRENT REPORT. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
Forward-Looking Statements
This Current Report includes “forward-looking statements” within the meaning of the federal securities laws. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters. The Company and Newbury Street II have based these forward-looking statements on current expectations and projections about future events. These statements include: projections of market opportunity and market share; estimates of customer adoption rates and usage patterns; projections regarding the Company’s ability to commercialize new products, technologies and industry use cases; projections of development and commercialization costs and timelines; expectations regarding the Company’s ability to execute its business model and the expected financial benefits of such model; expectations regarding the Company’s ability to attract, retain and expand its customer base; the Company’s deployment of proceeds from capital raising transactions; its expectations concerning relationships with strategic partners, suppliers, governments, state-funded entities, regulatory bodies and other third parties; the Company’s ability to maintain, protect and enhance its intellectual property; future ventures or investments in companies, products, services or technologies; development of favorable regulations affecting its markets; the successful consummation and potential benefits of the proposed transaction and expectations related to its terms and timing; and the potential for the Company to increase in value.
These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions, many of which are beyond the control of the Company and Newbury Street II.
These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions that may cause the Company or Newbury Street II’s actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such statements. Such risks and uncertainties include: that the Company is pursuing an emerging technology, faces significant technical challenges and may not achieve commercialization or market acceptance; Company historical net losses and limited operating history; Company’s expectations regarding future financial performance, capital requirements and unit economics; Company’s use and reporting of business and operational metrics; Company’s competitive landscape; Company’s dependence on members of its senior management and its ability to attract and retain qualified personnel; the potential need for additional future financing; the Company’s ability to manage growth and expand its operations; potential future acquisitions or investments in companies, products, services or technologies; Company’s reliance on strategic partners and other third parties; Company’s ability to maintain, protect and defend its intellectual property rights; risks associated with privacy, data protection or cybersecurity incidents and related regulations; the use, rate of adoption and regulation of artificial intelligence and machine learning; uncertainty or changes with respect to laws and regulations; uncertainty or changes with respect to taxes, trade conditions and the macroeconomic environment; the combined company’s ability to maintain internal control over financial reporting and operate a public company; the possibility that required regulatory approvals for the proposed transaction are delayed or are not obtained, which could adversely affect the combined company or the expected benefits of the proposed transaction; the risk that shareholders of Newbury Street II could elect to have their shares redeemed, leaving the combined company with insufficient cash to execute its business plans; the occurrence of any event, change or other circumstance that could give rise to the termination of the business combination agreement; the outcome of any legal proceedings or government investigations that may be commenced against the Company or Newbury Street II; failure to realize the anticipated benefits of the proposed transaction; the ability of Newbury Street II or the combined company to issue equity or equity-linked securities in connection with the proposed transaction or in the future; and other factors described in Newbury Street II’s filings with the SEC.
11
The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the (i) the IPO Prospectus, (ii) the annual report on Form 10-K filed by Newbury Street II with the SEC on March 6, 2026, (iii) the Registration Statement referenced above when available and other documents filed by Newbury Street II and the Company from time to time with the SEC. These filings will identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. You should not place undue reliance upon any forward-looking statements, which speak only as of the date made. There may be additional risks that neither Newbury Street II nor the Company presently knows, or that Newbury Street II and/or the Company currently believe are immaterial, that could cause actual results to differ from those contained in the forward-looking statements. For these reasons, among others, investors and other interested persons are cautioned not to place undue reliance upon any forward-looking statements in this Current Report. Past performance by Newbury Street II’s or the Company’s management teams and their respective affiliates is not a guarantee of future performance. Therefore, you should not place undue reliance on the historical record of the performance of Newbury Street II’s or the Company’s management teams or businesses associated with them as indicative of future performance of an investment or the returns that Newbury Street II or the Company will, or may, generate going forward. None of the parties nor any of their representatives gives any assurance that any of Newbury Street II, Company, or the combined company will achieve its expectations.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| + | Certain schedules, exhibits and similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. SPAC will provide a copy of such omitted materials to the Securities and Exchange Commission or its staff upon request. |
| † | Certain personally identifiable information has been omitted from this exhibit pursuant to Item 601(a)(6) of Regulation S-K. |
12
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| NEWBURY STREET II ACQUISITION CORP | ||
| By: | /s/ Thomas Bushey | |
| Name: | Thomas Bushey | |
| Title: | Chief Executive Officer | |
Dated: August 18, 2026
13
Exhibit 1.1
EXECUTION VERSION
BTIG, LLC
65 E 55th Street
New York, New York, 10022
August 17, 2026
Mr. Thomas Bushey
Chief Executive Officer
Newbury Street II Acquisition Corp
121 High Street, Floor 3
Boston, Massachusetts 02110
Re: Amendment to Underwriting Agreement
Ladies and Gentlemen:
Reference is hereby made to that certain Underwriting Agreement, dated as of October 31, 2024 (the “Underwriting Agreement”), by and between Newbury Street II Acquisition Corp, a Cayman Islands exempted company (the “Company”) and BTIG, LLC, as representative of the underwriters thereunder (the “Representative”). Capitalized terms used but not defined in this letter agreement (this “Letter Agreement”) shall have the meanings given to such terms in the Underwriting Agreement.
On February 19, 2026, the Company entered into a letter of intent concerning a proposed business combination between the Company and FORT Robotics, Inc., a Delaware corporation (collectively with its subsidiaries and affiliates, “Fort Robotics”) (such proposed business combination, the “FORT Robotics Transaction”).
The Company and the Representative hereby agree to amend the Underwriting Agreement as provided in Paragraph 1 of this Letter Agreement, effective and conditioned upon the consummation of the FORT Robotics Transaction.
1. Effective and conditioned upon the consummation of the Fort Robotics Transaction, Section 1.3 of the Underwriting Agreement is hereby deleted in its entirety and replaced with the following:
“1.3 Deferred Underwriting Commission. The Representative agrees that an aggregate amount equal to two million dollars ($2,000,000) (the “Deferred Underwriting Commission”), will be deposited and held in the Trust Account and payable in cash directly from the Trust Account, without accrued interest, to the Representative for its own account upon consummation of the Company’s initial Business Combination. In the event that the Company is unable to consummate a Business Combination and Continental, as the trustee of the Trust Account (in this context, the “Trustee”), commences liquidation of the Trust Account as provided in the Trust Agreement, the Representative agrees that: (i) the Representative shall forfeit any rights or claims to the Deferred Underwriting Commission, including any accrued interest thereon; and (ii) the Deferred Underwriting Commission, together with all other amounts on deposit in the Trust Account, shall be distributed on a pro-rata basis among the Public Shareholders. Any Deferred Underwriting Commissions will be fully earned by each Underwriter upon the payment of the purchase price for the Units purchased by such underwriter on the closing of the Offering (including payment of the purchase price of any Option Units) and will be paid if and when the Company consummates its Business Combination, without any further conditions.”
The Company and the Representative agree that any reference in the Underwriting Agreement to the amount owed for the Deferred Underwriting Commission that is inconsistent with the provisions of Section 1.3, as amended by this Paragraph 1, shall be deemed amended, effective and conditioned upon consummation of the Fort Robotics Transaction, to be consistent with the provisions of Section 1.3, as amended by this Paragraph 1.
2. For the avoidance of doubt, the amendment of the Underwriting Agreement contained in Paragraph 1 of this Letter Agreement shall apply only in connection with the FORT Robotics Transaction and shall not apply in connection with any Business Combination that may be contemplated or consummated between the Company and any party other than FORT Robotics. The parties agree that if the FORT Robotics Transaction is terminated for any reason, this Letter Agreement shall be void and of no effect for all purposes.
3. In consideration of the agreements set forth in this Letter Agreement, the Company agrees to appoint BTIG, LLC as the exclusive financial advisor and non-exclusive placement agent to the Company in connection with the FORT Robotics Transaction pursuant to a separate agreement to be executed concurrently with this Letter Agreement. The parties agree that if such engagement is terminated this Letter Agreement shall be void and of no effect for all purposes.
4. The terms of this Letter Agreement shall be interpreted, enforced, governed by and construed in a manner consistent with the provisions of the Underwriting Agreement. Except as expressly provided in this Letter Agreement, all of the terms and provisions in the Underwriting Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Letter Agreement does not constitute, directly or by implication, an amendment, modification or waiver of any provision of the Underwriting Agreement, or any other right, remedy, power or privilege of any party to the Underwriting Agreement, except as expressly set forth herein. Any reference to the Underwriting Agreement in the Underwriting Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Underwriting Agreement, as amended or modified by this Letter Agreement (or as the Underwriting Agreement may be further amended or modified after the date hereof in accordance with the terms thereof).
5. The Representative hereby agrees to take all actions reasonably necessary to effectuate the intent of this Letter Agreement, including, but not limited to, executing and delivering customary certificates and/or letters to CST&T, as the trustee of the Trust Account (in this context, the “Trustee”). Upon the request of the Representative, the Company agrees to execute such other documents, instruments or agreements as may be necessary to effectuate the agreements set forth herein.
[Remainder of Page Left Intentionally Blank. Signature Page Immediately Follows.]
2
Please acknowledge your agreement and acceptance to the foregoing by signing below and returning it to the undersigned at your earliest convenience.
| Very truly yours, | ||
| BTIG, LLC | ||
| By: | /s/ Ed Kovary | |
| Name: | Ed Kovary | |
| Title: | Managing Director | |
|
Accepted and agreed as of August 17, 2026: |
||
| NEWBURY II ACQUISITION CORP | ||
| By: | /s/ Thomas Bushey | |
| Name: | Thomas Bushey | |
| Title: | Chief Executive Officer | |
3
Exhibit 2.1
EXECUTION VERSION
CONFIDENTIAL
CERTAIN INFORMATION HAS BEEN REDACTED FROM THIS EXHIBIT (A) BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL OR (B) IN ACCORDANCE WITH ITEM 601(A)(6) OF REGULATION S-K DUE TO PERSONAL PRIVACY CONCERNS. INFORMATION THAT HAS BEEN SO REDACTED FROM THIS EXHIBIT HAS BEEN MARKED WITH “[***]” TO INDICATE THE OMISSION.
AGREEMENT AND PLAN OF MERGER
by and among
NEWBURY STREET II ACQUISITION CORP
as SPAC,
HUGO MERGER SUB INC.,
as Merger Sub,
and
FORT ROBOTICS, INC.,
as the Company,
Dated as of August 17, 2026
TABLE OF CONTENTS
| Page | |
| I. MERGER | 3 |
| 1.1. Merger | 3 |
| 1.2. Transaction Effective Time | 3 |
| 1.3. Effect of the Merger | 3 |
| 1.4. Tax Treatment | 4 |
| 1.5. Certificate of Incorporation and Bylaws of the Surviving Corporation | 4 |
| 1.6. Directors and Officers of the Surviving Corporation | 4 |
| 1.7. Pre-Closing Treatment of Company Preferred Stock | 4 |
| 1.8. Domestication of SPAC; Amendment to SPAC Organizational Documents | 4 |
| 1.9. Merger Consideration | 5 |
| 1.10. Effect of Merger on Company Securities | 5 |
| 1.11. Surrender of Company Securities and Disbursement of Merger Consideration | 6 |
| 1.12. Effect of Transaction on Merger Sub Stock | 8 |
| 1.13. Closing Consideration Spreadsheet | 8 |
| 1.14. Taking of Necessary Action; Further Action | 9 |
| 1.15. Tax Withholding | 9 |
| II. CLOSING | 9 |
| 2.1. Closing | 9 |
| III. representations and warranties of THE SPAC | 9 |
| 3.1. Organization and Standing | 9 |
| 3.2. Authorization; Binding Agreement | 10 |
| 3.3. Governmental Approvals | 11 |
| 3.4. Non-Contravention | 11 |
| 3.5. Capitalization | 11 |
| 3.6. SEC Filings and SPAC Financials | 13 |
| 3.7. Absence of Certain Changes | 13 |
| 3.8. Compliance with Laws | 14 |
| 3.9. Actions; Orders; Permits | 14 |
| 3.10. Taxes and Returns | 14 |
| 3.11. Employees and Employee Benefit Plans | 15 |
| 3.12. Properties | 15 |
| 3.13. Material Contracts | 15 |
| 3.14. Transactions with Affiliates | 16 |
| 3.15. Merger Sub Activities | 16 |
| 3.16. Investment Company Act | 16 |
| 3.17. Finders and Brokers | 16 |
| 3.18. Ownership of Stockholder Merger Consideration | 16 |
| 3.19. Certain Business Practices | 16 |
| 3.20. Insurance | 17 |
| 3.21. Information Supplied | 17 |
| 3.22. Independent Investigation | 17 |
| 3.23. No Other Representations | 18 |
| 3.24. Trust Account | 18 |
| 3.25. No Alternative Agreements | 18 |
| Iv. representations and warranties of THE COMPANY | 19 |
| 4.1. Organization and Standing | 19 |
| 4.2. Authorization; Binding Agreement | 19 |
| 4.3. Capitalization | 20 |
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| 4.4. Subsidiaries | 21 |
| 4.5. Governmental Approvals | 21 |
| 4.6. Non-Contravention | 22 |
| 4.7. Financial Statements | 22 |
| 4.8. Absence of Certain Changes | 24 |
| 4.9. Compliance with Laws | 24 |
| 4.10. Company Permits | 24 |
| 4.11. Litigation | 24 |
| 4.12. Material Contracts | 24 |
| 4.13. Intellectual Property | 26 |
| 4.14. Taxes and Returns | 28 |
| 4.15. Real Property | 30 |
| 4.16. Personal Property | 30 |
| 4.17. Title to and Sufficiency of Assets | 30 |
| 4.18. Employee Matters | 31 |
| 4.19. Benefit Plans | 32 |
| 4.20. Environmental Matters | 34 |
| 4.21. Transactions with Related Persons | 35 |
| 4.22. Insurance | 35 |
| 4.23. Top Customers and Top Suppliers | 36 |
| 4.24 Certain Business Practices | 36 |
| 4.25. Investment Company Act | 37 |
| 4.26. Finders and Brokers | 37 |
| 4.27. Independent Investigation | 37 |
| 4.28. Information Supplied | 37 |
| 4.29. No Other Representations | 38 |
| V. COVENANTS | 38 |
| 5.1. Access and Information | 38 |
| 5.2. Conduct of Business of the Company | 39 |
| 5.3. Conduct of Business of SPAC | 42 |
| 5.4. Annual and Interim Financial Statements | 44 |
| 5.5. SPAC Public Filings | 44 |
| 5.6. No Solicitation | 45 |
| 5.7. No Trading | 46 |
| 5.8. Notification of Certain Matters | 46 |
| 5.9. Efforts | 46 |
| 5.10. Tax Matters | 48 |
| 5.11. Further Assurances | 48 |
| 5.12. The Registration Statement | 49 |
| 5.13. Company Stockholder Meeting | 50 |
| 5.14. Public Announcements | 51 |
| 5.15. Confidential Information | 51 |
| 5.16. Post-Closing Board of Directors and Executive Officers | 52 |
| 5.17. Indemnification of Officers and Directors; Tail Insurance | 53 |
| 5.18. Trust Account Proceeds | 53 |
| 5.19. Transaction Financing | 54 |
| VI. Closing conditions | 55 |
| 6.1. Conditions of Each Party’s Obligations | 55 |
| 6.2. Conditions to Obligations of the Company | 56 |
ii
| 6.3. Conditions to Obligations of SPAC | 57 |
| 6.4. Frustration of Conditions | 59 |
| VII. TERMINATION AND EXPENSES | 59 |
| 7.1. Termination | 59 |
| 7.2. Effect of Termination | 60 |
| 7.3. Fees and Expenses | 61 |
| VIII. TRUST WAIVER | 61 |
| 8.1. Waiver of Claims Against Trust | 61 |
| Ix. MISCELLANEOUS | 62 |
| 9.1. Non-Survival of Representations, Warranties and Covenants | 62 |
| 9.2. Non-Recourse | 62 |
| 9.3. Notices | 62 |
| 9.4. Binding Effect; Assignment | 63 |
| 9.5. Third Parties | 63 |
| 9.6. Governing Law; Jurisdiction | 63 |
| 9.7. WAIVER OF JURY TRIAL | 63 |
| 9.8. Specific Performance | 63 |
| 9.9. Severability | 64 |
| 9.10. Amendment | 64 |
| 9.11. Waiver | 64 |
| 9.12. Entire Agreement | 64 |
| 9.13. Interpretation | 64 |
| 9.14. Counterparts | 65 |
| 9.15. Legal Representation | 65 |
| X DEFINITIONS | 66 |
| 10.1. Certain Definitions | 66 |
| 10.2. Section References | 79 |
INDEX OF EXHIBITS
| Exhibit | Description | |
| Exhibit A | Form of Voting Agreement | |
| Exhibit B | Form of Lock-Up Agreement | |
| Exhibit C | Form of Registration Rights Agreement | |
| Exhibit D | Sponsor Letter Agreement | |
| Exhibit E | Sponsor Support Agreement | |
| Exhibit F | Form of Subscription Agreement | |
| Exhibit G | Form of Amended SPAC Articles | |
| Exhibit H | Insider Letter Amendment |
iii
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this “Agreement”) is made and entered into as of August 17, 2026 by and among (i) Newbury Street II Acquisition Corp, a Cayman Islands exempted company (together with its successors, including after the Domestication (as defined below), “SPAC”), (ii) Hugo Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of SPAC (“Merger Sub”) and (iii) Fort Robotics, Inc., a Delaware corporation (the “Company”). SPAC, Merger Sub and the Company are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties”.
RECITALS:
A. The Company, directly and indirectly through its subsidiaries, engages in the business of the development and provision of safety-certified control and secure communication systems for autonomous and semi-autonomous machines operating in physical environments (collectively, the “Business”);
B. SPAC owns all of the issued and outstanding equity interests of Merger Sub, which was formed for the sole purpose of the Merger (as defined below);
C. Prior to the consummation of the Merger (as defined below), SPAC shall de-register from the Register of Companies in the Cayman Islands and transfer by way of continuation out of the Cayman Islands and into the State of Delaware and domesticate as a Delaware corporation pursuant to and in accordance with Section 338 of the Delaware General Corporation Law (as amended, the “DGCL”) and Part 12 of the Companies Act (Revised) of the Cayman Islands (the “Companies Act”), on the terms and subject to the conditions set forth in this Agreement;
D. The Parties intend to effect the merger of Merger Sub with and into the Company, with the Company continuing as the surviving entity and a wholly owned subsidiary of SPAC (the “Merger”), as a result of which each issued and outstanding security of the Company immediately prior to the effective time of the Merger shall no longer be outstanding and shall automatically be cancelled in exchange for which the security holders of the Company shall receive shares of common stock of the SPAC, in accordance with the applicable provisions of the DGCL, and all upon the terms and subject to the conditions set forth in this Agreement;
E. The boards of directors of SPAC and Merger Sub have each (i) determined that the Merger (preceded by the Domestication) and the other Transactions are fair, advisable and in the best interests of their respective companies and shareholders (or, in the case of Merger Sub, stockholder), (ii) approved this Agreement and the Ancillary Documents and the Transactions contemplated hereby and thereby, including the Domestication and the Merger, upon the terms and subject to the conditions set forth herein, and (iii) determined to recommend to their respective shareholders (or, in the case of Merger Sub, stockholder) the approval and adoption of this Agreement and the Ancillary Documents and the transactions contemplated hereby and thereby, including the Domestication and the Merger (collectively, the “Transactions”) (in case of the recommendation of the board of directors of SPAC, the “SPAC Board Recommendation”);
F. The board of directors of the Company has (i) determined that the Merger and the other Transactions are fair, advisable and in the best interests of the Company and its stockholders, (ii) approved this Agreement and the Ancillary Documents and the Transactions contemplated hereby and thereby, including the Merger, upon the terms and subject to the conditions set forth herein, and (iii) determined to recommend to the Company Stockholders the approval and adoption of this Agreement and the Ancillary Documents and the Transactions contemplated hereby and thereby, including the Merger;
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G. SPAC has received voting and support agreements in the form attached as Exhibit A hereto (collectively, the “Voting Agreements”) signed by the Company and certain holders of Company Stock (as defined below) set forth on Schedule 1.1 hereto sufficient to approve the Merger and the other transactions contemplated by this Agreement (including any other class or series votes of the Company’s capital stock);
H. Contemporaneously with the execution and delivery of this Agreement, the Significant Company Holders have each entered into a Lock-Up Agreement with SPAC, the form of which is attached as Exhibit B hereto (each, a “Lock-Up Agreement”), each of which will become effective as of the Closing, in which the Significant Company Holders agreed not to effect any sale, distribution or transfer of the Merger Consideration Shares that they receive under this Agreement during the period commencing on the Closing Date and ending on the earlier of (A) the one-year anniversary of the Closing Date, (B) the date upon which the VWAP of the SPAC Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any twenty (20) Trading Days within any consecutive thirty (30) Trading Day period commencing at least 150 days after the Closing Date and (C) the date upon which SPAC consummates a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of its stockholders having the right to exchange their shares of SPAC Common Stock for cash, securities or other property;
I. Contemporaneously with the execution and delivery of this Agreement, SPAC will enter into Non-Competition and Non-Solicitation Agreements in favor of SPAC and the Company with each member of the Management Team, each of which shall be in a form to be mutually agreed upon among SPAC, the Company and each member of the Management Team (each, a “Non-Competition Agreement”), each of which will become effective as of the Closing;
J. Contemporaneously with the execution and delivery of this Agreement, the Company will enter into employment agreements with each member of the Management Team, each of which shall be in a form to be mutually agreed upon among SPAC, the Company and the applicable member of the Management Team (each, an “Employment Agreement”), each of which will become effective as of the Closing;
K. In connection with the Closing, SPAC and certain of the Company Stockholders who are expected to be Affiliates of SPAC immediately after the Closing set forth on Schedule 1.2 hereto will enter into a Registration Rights Agreement, substantially in the form attached as Exhibit C hereto (the “Registration Rights Agreement”), pursuant to which such Company Stockholders will be granted certain registration rights with respect to their shares of SPAC Common Stock received as Merger Consideration hereunder, on the terms and subject to the conditions set forth therein;
L. Contemporaneously with the execution and delivery of this Agreement, SPAC and Sponsor have entered into a letter agreement, a copy of which is attached as Exhibit D (the “Sponsor Letter Agreement”);
M. Contemporaneously with the execution and delivery of this Agreement, SPAC and Sponsor have entered into a letter agreement, a copy of which is attached as Exhibit F (the “Sponsor Support Agreement”), pursuant to which, among other things, the Sponsor agreed to vote to adopt and approve this Agreement and the Transactions;
N. Prior to or contemporaneously with the execution and delivery of this Agreement, SPAC has entered into subscription agreements (the “Initial PIPE Subscription Agreements”) with certain investors (the “Initial PIPE Investors”) pursuant to which, and on the terms and subject to the conditions of which, such Initial PIPE Investors have agreed to subscribe for and purchase from SPAC, and SPAC has agreed to issue and sell to each such Initial PIPE Investor, the number of shares of SPAC Common Stock set forth in the applicable Initial PIPE Subscription Agreement in exchange for an aggregate purchase price equal to Thirty-One Million Two Hundred Fifty Thousand Dollars ($31,250,000), such purchases to be consummated immediately prior to, or substantially concurrently with the Closing (as defined below) (the “Initial PIPE Financing”) pursuant to subscription agreements substantially in the form attached as Exhibit F;
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O. Contemporaneously with the execution and delivery of this Agreement, SPAC and the Company have entered into an amendment to the Insider Letter Agreement, a copy of which is attached as Exhibit H hereto (the “Insider Letter Amendment”), pursuant to which, up to 2,038,424 Founder Shares as are actually used to secure commitments for Initial PIPE Financing or any additional Transaction Financing and any transactions or arrangements into which the Company may enter into for the purpose of securing commitments from Public Shareholders not to redeem their Company shares at or prior to the Closing (or other agreements or arrangements with like effect) will be released from transfer restrictions, subject to and contingent upon the Closing;
P. The Parties intend that the Merger will qualify as a tax-free “reorganization” within the meaning of Section 368(a) of the Code (as defined below) and this Agreement is hereby adopted as a “plan of reorganization” within the meaning of Section 368 of the Code and Treasury Regulation Sections 1.368-2(g) and 1.368-3(a); and
P. Certain capitalized terms used herein are defined in Article X hereof.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and the representations, warranties, covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereto agree as follows:
Article
I
MERGER
1.1 Merger. At the Effective Time, and subject to and upon the terms and conditions of this Agreement, and in accordance with the applicable provisions of the DGCL, Merger Sub and the Company shall consummate the Merger, pursuant to which Merger Sub shall be merged with and into the Company, following which the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation. The Company, as the surviving corporation after the Merger, is hereinafter sometimes referred to as the “Surviving Corporation” (provided, that references to the Company for periods after the Effective Time shall include the Surviving Corporation).
1.2 Effective Time. The Parties shall cause the Merger to be consummated by filing on the Closing Date, a duly executed Certificate of Merger, in customary form and substance reasonably acceptable to the Company and SPAC, for the merger of Merger Sub with and into the Company (with any such addendums thereto, the “Certificate of Merger”) with the Secretary of State of the State of Delaware in accordance with the applicable provisions of the DGCL (the time of such filing, or such later time as may be specified in the Certificate of Merger, being the “Effective Time”).
1.3 Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate of Merger and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of Merger Sub and the Company shall become the property, rights, privileges, agreements, powers and franchises, debts, Liabilities, duties and obligations of the Surviving Corporation, which shall include the assumption by the Surviving Corporation of any and all agreements, covenants, duties and obligations of Merger Sub and the Company set forth in this Agreement to be performed after the Effective Time.
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1.4 Tax Treatment. For U.S. federal income tax purposes, each of the Domestication and the Merger is intended to constitute a “reorganization” within the meaning of Section 368 of the Code. The Parties adopt this Agreement as a “plan of reorganization” within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations.
1.5 Certificate of Incorporation and Bylaws of the Surviving Corporation. At the Effective Time, the Certificate of Incorporation and Bylaws of the Company, each as in effect immediately prior to the Effective Time, shall automatically be amended and restated in their entirety to read identically to the Certificate of Incorporation and Bylaws of Merger Sub, as in effect immediately prior to the Effective Time, and such amended and restated Certificate of Incorporation and Bylaws shall become the respective Certificate of Incorporation and Bylaws of the Surviving Corporation (the “Surviving Corporation Organizational Documents”), except that the name of the Surviving Corporation in such Certificate of Incorporation and Bylaws shall be amended to be “Fort Robotics Holdings Inc.”.
1.6 Directors and Officers of the Surviving Corporation. From and after the Effective Time, (i) any directors and officers of Merger Sub shall resign, (ii) the directors of the Company immediately prior to the Effective Time shall be the directors of the Surviving Corporation, each such director to hold office in accordance with the Surviving Corporation’s Organizational Documents, and (iii) the officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation, each such officer to hold office in accordance with the Surviving Corporation’s Organizational Documents.
1.7 Company Preferred Stock Exchange. On or prior to the Closing Date, the holders of Company Preferred Stock shall either exchange or convert all of their issued and outstanding shares of Company Preferred Stock for shares of Company Common Stock at the applicable conversion ratio (including any accrued or declared but unpaid dividends) as set forth in the Company Charter (the “Company Preferred Stock Exchange”).
1.8 Domestication of SPAC; Amendment to SPAC Organizational Documents.
(a) Prior to the Effective Time, SPAC shall de-register from the Register of Companies in the Cayman Islands and transfer by way of continuation out of the Cayman Islands to the State of Delaware so as to re-domicile as and become a Delaware corporation pursuant to and in accordance with Part 12 of the Companies Act and the applicable provisions of the DGCL (the “Domestication”), and subject to the receipt of the approval by way of a special resolution passed by the holders of SPAC Class B Ordinary Shares (being those shareholders of the SPAC entitled to vote thereon) in accordance with the Organizational Documents of SPAC (the “SPAC Organizational Documents”) to the Domestication and its terms, SPAC shall adopt Organizational Documents for a Delaware corporation (the “Domestication Organizational Documents”), in a form to be mutually agreed by the SPAC and the Company (such consent not to be unreasonably withheld, conditioned or delayed). In connection with the Domestication, all of the issued and outstanding SPAC Securities shall remain issued and outstanding and become substantially identical securities of SPAC as a Delaware corporation, except that each outstanding SPAC Unit will automatically detach into its component parts immediately prior to the Domestication.
(b) At the Effective Time, SPAC shall amend and restate its Organizational Documents (the “Amended SPAC Articles”) substantially in the form attached as Exhibit G hereto.
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1.9 Merger Consideration. The aggregate consideration to be paid to Company Security Holders as of the Effective Time and the holders of the Permitted Company SAFEs pursuant to the Merger shall consist of a number of newly-issued shares of SPAC Common Stock with an aggregate value equal to: (i) Five Hundred Million Dollars ($500,000,000) (the “Merger Consideration” and such shares, the “Merger Consideration Shares”), with each Company Stockholder receiving for each share of Company Common Stock held (after giving effect to the Company Preferred Stock Exchange or otherwise treating shares of Company Preferred Stock on an as-converted to Company Common Stock basis, but excluding any Company Securities described in Section 1.10(b)) a number of shares of SPAC Common Stock equal to (A) the Per Share Price, divided by (B) $10.00 (the “Conversion Ratio”) (the total portion of the Merger Consideration amount payable to all Company Stockholders in accordance with this Agreement is also referred to herein as the “Stockholder Merger Consideration”); provided that each share of SPAC Common Stock that is issued upon the conversion of Company Restricted Stock pursuant to this Section 1.9 shall continue to have, and be subject to, the same rights of repurchase or vesting of the applicable shares of Company Restricted Stock immediately prior to the Effective Time, plus (ii) the aggregate amount of the Permitted Company SAFE Conversion Amounts, with the holders of the Permitted Company SAFEs receiving, if any, in full settlement for the conversion and cancellation of each such Permitted Company SAFE, a number of shares of SPAC Common Stock equal to the respective Permitted Company SAFE Conversion Amount. For the avoidance of doubt, no holder of Company Securities will receive any consideration under or in connection with this Agreement unless they are holders of Company Common Stock as of the Effective Time.
1.10 Effect of Merger on Company Securities. At the Effective Time, by virtue of the Merger and without any action on the part of any Party or the holders of any Company Securities or the holders of any shares of capital stock of SPAC or Merger Sub:
(a) Company Stock. Subject to Section 1.10(b) below, all shares of Company Stock issued and outstanding immediately prior to the Effective Time (after giving effect to the Company Preferred Stock Exchange) will automatically be cancelled and cease to exist in exchange for the right to receive the Stockholder Merger Consideration, with each Company Stockholder being entitled to receive its Pro Rata Share of the Stockholder Merger Consideration, without interest, upon delivery of the Transmittal Documents in accordance with Section 1.11. All shares of Company Preferred Stock will be treated on an as-converted to Company Common Stock basis. As of the Effective Time, each Company Stockholder shall cease to have any other rights in and to the Company or the Surviving Corporation.
(b) Treasury Stock. Notwithstanding Section 1.10(a) above or any other provision of this Agreement to the contrary, at the Effective Time, if there are any Company Securities that are owned by the Company as treasury shares or any Company Securities owned by any direct or indirect Subsidiary of the Company immediately prior to the Effective Time, such Company Securities shall be canceled and shall cease to exist without any conversion thereof or payment therefor.
(c) Company Options. Each outstanding Company Option (whether vested or unvested) shall be assumed by SPAC and automatically converted into an option for shares of SPAC Common Stock (each, an “Assumed Option”). Subject to the subsequent sentence, each Assumed Option will be subject to the terms and conditions set forth in the Company Equity Plan (except any references therein to the Company or Company Common Stock will instead mean SPAC and SPAC Common Stock, respectively). Each Assumed Option shall: (i) have the right to acquire a number of shares of SPAC Common Stock equal to (as rounded down to the nearest whole number) the product of (A) the number of shares of Company Common Stock (with any Company Preferred Stock treated on an as-converted to Company Common Stock basis) which the Company Option had the right to acquire immediately prior to the Effective Time, multiplied by (B) the Conversion Ratio; (ii) have an exercise price equal to (as rounded up to the nearest whole cent) the quotient of (A) the exercise price of the Company Option (in U.S. Dollars), divided by (B) the Conversion Ratio; and (iii) be subject to the same vesting schedule as the applicable Company Option. SPAC shall take all corporate action necessary to reserve for future issuance, and shall maintain such reservation for so long as any of the Assumed Options remain outstanding, a sufficient number of shares of SPAC Common Stock for delivery upon the exercise of such Assumed Option. From and after the Closing, the Company and SPAC shall not issue any new awards under the Company Equity Plan.
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(d) Company SAFEs. At the Effective Time, each Company SAFE shall, without any further action on the part of the holder thereof, be cancelled and automatically be converted into the right to receive a number of shares of SPAC Common Stock equal to the Company SAFE Conversion Amount applicable to each such Company SAFE. As of the Effective Time, each holder of Company SAFEs shall cease to have any other rights in and to the Company or the Surviving Corporation.
(e) Company Convertible Securities. Each Company Convertible Security, other than a Company Option or that certain Warrant to Purchase Stock, dated December 29, 2025, issued to Stifel Bank (the “Stifel Warrant”), and each Permitted Company SAFE, if not exercised or converted at or prior to the Effective Time into shares of Company Common Stock, shall be cancelled, retired and terminated, and thereby cease to represent any right to acquire, be exchanged for or convert into, shares of Company Stock or, in the case of any Company SAFEs, shares of SPAC Common Stock, or any other security or otherwise receive payment of cash or other consideration therefor, whether upon any contingency or valuation or otherwise. The Company will use commercially reasonable efforts to amend the Stifel Warrant to cause the Stifel Warrant to either: (i) convert into shares of Company Common Stock at or prior to the Effective Time, (ii) convert into warrants to purchase SPAC Common Stock at the Effective Time.
1.11 Surrender of Company Securities and Disbursement of Merger Consideration.
(a) Prior to the Effective Time, SPAC shall appoint its transfer agent, Continental Stock Transfer & Trust Company or another agent reasonably acceptable to the Company (the “Exchange Agent”), for the purpose of exchanging the certificates representing Company Stock (“Company Certificates”) if any, and each share of capital stock held in book-entry form on the stock transfer books of the Company immediately prior to the Effective Time. At or prior to the Effective Time, SPAC shall deposit, or cause to be deposited, with the Exchange Agent the Stockholder Merger Consideration. At or prior to the Effective Time, SPAC shall send, or shall cause the Exchange Agent to send, to each Company Stockholder, a letter of transmittal in form and substance reasonably acceptable to SPAC and the Company, acting in good faith (each, a “Letter of Transmittal”) (which shall specify that the delivery of Company Certificates or uncertificated shares in respect of the Stockholder Merger Consideration shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Company Certificates or uncertificated shares to the Exchange Agent (or a Lost Certificate Affidavit)) for use in such exchange. The Letter of Transmittal will contain, among other things, customary representations, including due authority, valid ownership, title and interest, absence of encumbrances (other than Permitted Liens set forth on Schedule 4.17), and a customary general release and waiver for any pre-Closing claims (other than rights to compensation and benefits, for employees and directors, rights to indemnification and other customary exceptions) against the Parties and ability to engage in the Transactions.
(b) Each Company Stockholder shall be entitled to receive its Pro Rata Share of the Stockholder Merger Consideration in respect of the Company Stock represented by the Company Certificate(s) (excluding any Company Securities described in Section 1.10(b)), as soon as reasonably practicable after the Effective Time, but subject to the delivery to the Exchange Agent of the following items prior thereto (collectively, the “Transmittal Documents”): (i) the Company Certificate(s) for its Company Stock (or a Lost Certificate Affidavit), together with a properly completed and duly executed Letter of Transmittal and (ii) such other documents as may be reasonably requested by the Exchange Agent or SPAC. Until so surrendered, each Company Certificate shall represent after the Effective Time for all purposes only the right to receive such portion of the Stockholder Merger Consideration attributable to such Company Certificate.
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(c) If any portion of the Stockholder Merger Consideration is to be delivered or issued to a Person other than the Person in whose name the surrendered Company Certificate is registered immediately prior to the Effective Time, it shall be a condition to such delivery that (i) the transfer of such Company Stock shall have been permitted in accordance with the terms of the Company’s Organizational Documents and any stockholders agreement with respect to the Company, each as in effect immediately prior to the Effective Time, (ii) such Company Certificate shall be properly endorsed or shall otherwise be in proper form for transfer, (iii) the recipient of such portion of the Stockholder Merger Consideration, or the Person in whose name such portion of the Stockholder Merger Consideration is delivered or issued, shall have already executed and delivered, if a Significant Company Holder, counterparts to a Lock-Up Agreement, and if applicable, the Registration Rights Agreement and Non-Competition Agreement, and such other Transmittal Documents as are reasonably deemed necessary by the Exchange Agent or SPAC and (iv) the Person requesting such delivery shall pay to the Exchange Agent any transfer or other related or similar Taxes required as a result of such delivery to a Person other than the registered holder of such Company Certificate or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.
(d) Notwithstanding anything to the contrary contained herein, in the event that any Company Certificate shall have been lost, stolen or destroyed, in lieu of delivery of a Company Certificate to the Exchange Agent, the applicable Company Stockholder may instead deliver to the Exchange Agent an affidavit of lost certificate and indemnity of loss in form and substance reasonably acceptable to SPAC (a “Lost Certificate Affidavit”), which at the reasonable discretion of SPAC may include a requirement that the owner of such lost, stolen or destroyed Company Certificate deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against SPAC or the Surviving Corporation with respect to the shares of Company Stock represented by the Company Certificates alleged to have been lost, stolen or destroyed. Any Lost Certificate Affidavit properly delivered in accordance with this Section 1.11(d) shall be treated as a Company Certificate for all purposes of this Agreement.
(e) After the Effective Time, there shall be no further registration of transfers of Company Stock. If, after the Effective Time, Company Certificates are presented to the Surviving Corporation, SPAC or the Exchange Agent, they shall be canceled and exchanged for the applicable portion of the Stockholder Merger Consideration provided for, and in accordance with the procedures set forth in this Section 1.11. No dividends or other distributions declared or made after the date of this Agreement with respect to SPAC Common Stock with a record date after the Effective Time will be paid to the holders of any Company Certificates that have not yet been surrendered with respect to the SPAC Common Stock to be issued upon surrender thereof until the holders of record of such Company Certificates shall surrender such certificates (or provide a Lost Certificate Affidavit), if applicable, and provide the other Transmittal Documents. Subject to applicable Law, following surrender of any such Company Certificates (or delivery of a Lost Certificate Affidavit), if applicable, and delivery of the other Transmittal Documents, SPAC shall promptly deliver to the record holders thereof, without interest, the certificates representing SPAC Common Stock issued in exchange therefor and the amount of any such dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such SPAC Common Stock.
(f) All securities issued upon the surrender of Company Securities in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such Company Securities. Any portion of the Stockholder Merger Consideration made available to the Exchange Agent pursuant to Section 1.11(a) that remains unclaimed by Company Stockholders two (2) years after the Effective Time shall be returned to SPAC, upon demand, and any such Company Stockholder who has not exchanged its Company Stock for the applicable portion of the Stockholder Merger Consideration in accordance with this Section 1.11 prior to that time shall thereafter look only to SPAC for payment of the portion of the Stockholder Merger Consideration in respect of such shares of Company Stock without any interest thereon (but with any dividends paid with respect thereto). Notwithstanding the foregoing, none of the Surviving Corporation, SPAC or any Party hereto shall be liable to any Person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.
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(g) Notwithstanding anything to the contrary contained herein, no fraction of a share of SPAC Common Stock will be issued by virtue of the Merger or the transactions contemplated hereby, and each Person who would otherwise be entitled to a fraction of a share of SPAC Common Stock (after aggregating all fractional shares of SPAC Common Stock that otherwise would be received by such holder) shall instead have the number of shares of SPAC Common Stock issued to such Person rounded down in the aggregate to the nearest whole share of SPAC Common Stock.
1.12 Effect of Transaction on Merger Sub Stock. At the Effective Time, by virtue of the Merger and without any action on the part of any Party or the holders of any Company Securities or the holders of any shares of capital stock of SPAC or Merger Sub, each share of Merger Sub Common Stock outstanding immediately prior to the Effective Time shall be converted into an equal number of shares of common stock of the Surviving Corporation, with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation.
1.13 Closing Consideration Spreadsheet.
(a) At least three (3) Business Days prior to the Closing, the Company shall deliver to SPAC a spreadsheet (the “Closing Consideration Spreadsheet”), prepared by the Company in good faith and detailing the following, in each case, as of immediately prior to the Effective Time:
(i) the name and address of record of each Company Stockholder and the number of shares of Company Common Stock held by such Company Stockholder (including, in the case of Company Restricted Stock, the rights of repurchase or vesting applicable to such Company Restricted Stock);
(ii) the names of record of each holder of Company Options, and the exercise price, number and series or class of shares of Company Common Stock issuable pursuant to each of the Company Options held by such holder (including, in the case of unvested Company Options, the vesting schedule, vesting commencement date, and date fully vested);
(iii) detailed calculations of each of the following (in each case, determined without regard to withholding):
(A) The number of Fully-Diluted Company Shares;
(B) The Conversion Ratio;
(C) The number of shares subject to the aggregate Merger Consideration;
(D) for each Assumed Option, the exercise price therefor and the number of shares of SPAC Common Stock subject to such Assumed Option; and
(E) The Company SAFE Conversion Amounts.
The contents of the Closing Consideration Spreadsheet delivered by the Company hereunder shall be subject to reasonable review and comment by SPAC. The Parties agree that SPAC and Exchange Agent shall be entitled to rely on the Closing Consideration Spreadsheet in issuing SPAC Common Stock in accordance with this Article I.
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1.14 Taking of Necessary Action; Further Action. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company and Merger Sub, the officers and directors of the Company and Merger Sub are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action, so long as such action is not inconsistent with this Agreement.
1.15 Tax Withholding. SPAC will be entitled to deduct and withhold from any payment to be made under this Agreement all Taxes that SPAC is required to deduct and withhold with respect to such payment under any provision of applicable Tax Law. Before making any such deduction or withholding, SPAC shall give the Company Stockholders notice of the intention to make such deduction or withholding and such notice, which shall include the authority, basis, and method of calculation for the proposed deduction or withholding, shall be given at least three (3) Business Days before such deduction or withholding is required, in order for the Company Stockholders to obtain reduction of or relief from such deduction or withholding and shall assist Company Stockholders as reasonably requested in obtaining such reduction of or relief from such deduction or withholding. Taxes withheld pursuant to this Section 1.15 (i) will be timely remitted by SPAC to the appropriate Governmental Authority and (ii) to the extent so remitted, will be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Article II
CLOSING
2.1 Closing. The consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place electronically by the exchange of the closing deliverables by the means provided in Section 9.14 and/or otherwise as agreed amongst the Parties, as promptly as reasonably practicable, but in no event later than the second (2nd) Business Day following the satisfaction (or, to the extent permitted by applicable Law and the applicable provisions of Article VI, waiver) of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions) (the date upon which the Closing actually occurs is referred to herein as the “Closing Date”) or at such other place, date and/or time as SPAC and the Company may agree in writing.
Article
III
REPRESENTATIONS AND WARRANTIES OF THE SPAC
Except as set forth in (i) the disclosure schedules delivered by SPAC to the Company on the date hereof (the “SPAC Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, or (ii) the SEC Reports that are available on the SEC’s website through EDGAR, SPAC represents and warrants to the Company, as of the date hereof and as of the Closing, as follows:
3.1 Organization and Standing.
(a) SPAC is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands. SPAC has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. SPAC is duly qualified or licensed to transact business and in good standing (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing can be cured without material cost or expense. SPAC has heretofore made available to the Company accurate and complete copies of its Organizational Documents, as currently in effect. SPAC is not in violation of any provision of its Organizational Documents in any material respect.
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(b) Merger Sub is a corporation duly incorporated, validly existing and in good standing under the Laws of Delaware and was incorporated solely for the purpose of engaging in the transactions contemplated by this Agreement. Merger Sub is the wholly owned subsidiary of SPAC and does not own, directly or indirectly, any ownership, equity, profits or voting interest in any Person or the right to acquire any such Equity Security, and Merger Sub is not a partner or member of any partnership, limited company or joint venture. Merger Sub has not engaged in any business activities other than as contemplated by this Agreement, and does not carry on any business independent of SPAC, and, other than this Agreement and the Ancillary Documents to which it is or will be a party, Merger Sub is not party to or bound by any Contract. Merger Sub has no assets, and has no Liabilities except those incurred in connection with this Agreement and the Ancillary Documents to which it is or will be a party and the Transactions.
3.2 Authorization; Binding Agreement. Each of SPAC and Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be a party, to perform such Party’s obligations hereunder and thereunder and to consummate the Transactions, subject to obtaining the Required SPAC Shareholder Approval. The execution and delivery of this Agreement and each Ancillary Document to which it is or will be a party and the consummation of the Transactions (a) have been duly and validly authorized by the board of directors of SPAC and Merger Sub, and (b) other than the Required SPAC Shareholder Approval, no other corporate proceedings, other than as set forth elsewhere in the Agreement, on the part of SPAC or Merger Sub are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is or will be a party or to consummate the Transactions. This Agreement has been, and each Ancillary Document to which SPAC or Merger Sub is a party shall be when delivered, duly and validly executed and delivered by SPAC or Merger Sub, as applicable, and, assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of SPAC or Merger Sub, as applicable, enforceable against such Party in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws of general application affecting the enforcement of creditors’ rights generally or by any applicable statute of limitation or by any valid defense of set-off or counterclaim, and the fact that equitable remedies or relief (including the remedy of specific performance) are subject to the discretion of the court from which such relief may be sought (collectively, the “Enforceability Exceptions”). The boards of directors of SPAC and Merger Sub, by resolutions (i) duly adopted at meetings duly convened and held or (ii) in the case of SPAC, in writing signed by all of the directors of SPAC, have each (i) determined that the Merger (preceded by the Domestication) and the other Transactions are fair, advisable and in the best interests of their respective companies and shareholders (or, in the case of Merger Sub, stockholder), (ii) approved this Agreement and the Ancillary Documents and the Transactions contemplated hereby and thereby, including the Domestication and the Merger, upon the terms and subject to the conditions set forth herein, and (iii) determined to recommend to their respective shareholders (or, in the case of Merger Sub, stockholder) the approval and adoption of this Agreement and the Ancillary Documents and the Transactions contemplated hereby and thereby, including the Domestication and the Merger.
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3.3 Governmental Approvals. Except as otherwise described in Schedule 3.3, no Consent of or with any Governmental Authority, on the part of SPAC or Merger Sub is required to be obtained or made in connection with the execution, delivery or performance by SPAC and Merger Sub of this Agreement and each Ancillary Document to which SPAC or Merger Sub is or will be a party or the consummation by SPAC or Merger Sub of the Transactions, other than (a) pursuant to Antitrust Laws, including compliance with and filings under the HSR Act, (b) such filings as contemplated by this Agreement (including (i) the Registration Statement and the Proxy Statement with the SEC for purposes of the declaration of the effectiveness of the Registration Statement by the SEC, (ii) such filings with and approvals of Nasdaq (or, if applicable, NYSE) to permit the shares of SPAC Common Stock registered in the Registration Statement to be listed on Nasdaq (or, if applicable, NYSE), and (iii) such filings required in connection with the Domestication and the Merger), (c) any filings required with Nasdaq (or, if applicable, NYSE) and/or the SEC with respect to the transactions contemplated by this Agreement, (d) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities Laws, and the rules and regulations thereunder, and (e) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to have a Material Adverse Effect on SPAC or its ability to perform its obligations under this Agreement or the Ancillary Documents or consummate the transactions contemplated hereby or thereby, in any case, in any material respect.
3.4 Non-Contravention. Except as otherwise described in Schedule 3.4, the execution and delivery by SPAC and Merger Sub of this Agreement and each Ancillary Document to which it is a party, the consummation by SPAC and Merger Sub of the Transactions, and compliance by SPAC and Merger Sub with any of the provisions hereof and thereof, will not (a) conflict with or violate any provision of SPAC’s or Merger Sub’s respective Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 3.3 hereof, and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate, or constitute a breach under, any Law, Order or Consent to which SPAC or any of its properties or assets are subject are bound, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by SPAC under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of SPAC under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any SPAC Material Contract, except for any deviations from any of the foregoing clauses (a), (b) or (c) that would not reasonably be expected to have a Material Adverse Effect on SPAC.
3.5 Capitalization.
(a) SPAC is authorized to issue 500,000,000 SPAC Class A Ordinary Shares, 50,000,000 SPAC Class B Ordinary Shares, and 5,000,000 SPAC Preference Shares. The issued and outstanding SPAC Securities as of the date of this Agreement are set forth on Schedule 3.5(a). As of the date of this Agreement, there are no issued or outstanding SPAC Preference Shares. All issued and outstanding SPAC Ordinary Shares are duly authorized, validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Companies Act, SPAC’s Organizational Documents or any Contract to which SPAC is a party. None of the outstanding SPAC Securities has been issued in violation of any applicable securities Laws.
(b) Prior to giving effect to the Merger, Merger Sub is authorized to issue 1,000 shares of Merger Sub Common Stock, of which 1,000 shares are issued and outstanding, and all of which are owned by SPAC. Prior to giving effect to the transactions contemplated by this Agreement, other than Merger Sub, SPAC does not have any Subsidiaries or own or hold (of record, beneficially, legally or otherwise), directly or indirectly, any Equity Securities in any other Person or the right to acquire any such Equity Security, and SPAC is not a partner or member of any partnership, limited company or joint venture.
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(c) Except as set forth in Schedule 3.5(a) or Schedule 3.5(c) there are no (i) outstanding options, warrants, puts, calls, convertible securities, equity appreciation, phantom equity or profit participation rights, preemptive or similar rights, (ii) bonds, debentures, notes or other Indebtedness having general voting rights or that are convertible or exchangeable into securities having such rights or (iii) subscriptions or other rights, agreements, arrangements, Contracts or commitments of any character (other than this Agreement and the Ancillary Documents), (A) relating to the issued or unissued shares of SPAC, (B) obligating SPAC to issue, transfer, deliver or sell or cause to be issued, transferred, delivered, sold or repurchased any options or shares or securities convertible into or exchangeable for such shares, or (C) obligating SPAC to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment for such capital shares. Other than the redemption of SPAC Class A Ordinary Shares (or replacement shares of SPAC Common Stock upon the Domestication) by Public Shareholders conducted in conjunction with an Extension (an “Extension Redemption”) or the Closing Redemption (each of an Extension Redemption and a Closing Redemption, a “Redemption”) or as expressly set forth in this Agreement, there are no outstanding obligations of SPAC to repurchase, redeem or otherwise acquire any Equity Securities of SPAC or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Person. Except as set forth in Schedule 3.5(c), there are no shareholders agreements, voting trusts or other agreements or understandings to which SPAC is a party with respect to the voting of any shares of SPAC.
(d) All Indebtedness of SPAC as of the date of this Agreement is set forth on Schedule 3.5(d). No Indebtedness of SPAC contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by SPAC or (iii) the ability of SPAC to grant any Lien on its properties or assets.
(e) Since the date of incorporation of SPAC, and except as contemplated by this Agreement, SPAC has not declared or paid any distribution or dividend in respect of its shares or other Equity Securities and has not repurchased, redeemed or otherwise acquired any of its shares or other Equity Securities, and SPAC’s board of directors has not authorized any of the foregoing.
(f) At the Effective Time, SPAC will have reserved out of its authorized but unissued shares of SPAC Common Stock a number of shares not less than the aggregate Stockholder Merger Consideration, and such shares will be available for issuance in accordance with this Agreement.
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3.6 SEC Filings and SPAC Financials.
(a) SPAC, since the IPO, has filed all forms, reports, schedules, statements, registration statements, prospectuses and other documents required to be filed or furnished by SPAC with the SEC under the Securities Act and/or the Exchange Act, together with any amendments, restatements or supplements thereto, and will file all such forms, reports, schedules, statements and other documents required to be filed subsequent to the date of this Agreement. Except to the extent available on EDGAR, SPAC has delivered to the Company copies in the form filed with the SEC of all of the following: (i) SPAC’s annual reports on Form 10-K for each fiscal year of SPAC beginning with the first year SPAC was required to file such a form, (ii) SPAC’s quarterly reports on Form 10-Q for each fiscal quarter that SPAC filed such reports to disclose its quarterly financial results in each of the fiscal years of SPAC referred to in clause (i), (iii) all other forms, reports, registration statements, prospectuses and other documents (other than preliminary materials) filed by SPAC with the SEC since the beginning of the first fiscal year referred to in clause (i) (the forms, reports, registration statements, prospectuses and other documents (and as they have been supplemented, modified or amended since the time of filing) referred to in clauses (i), (ii) and (iii), whether or not available through EDGAR, are, collectively, the “SEC Reports”) and (iv) all certifications and statements required by (A) Rules 13a-14 or 15d-14 under the Exchange Act, and (B) 18 U.S.C. §1350 (Section 906 of SOX) with respect to any report referred to in clause (i) (collectively, the “Public Certifications”). The SEC Reports (x) were prepared in all material respects in accordance with the requirements of the Securities Act and the Exchange Act, as the case may be, and the rules and regulations thereunder and (y) did not, as of their respective effective dates (in the case of SEC Reports that are registration statements filed pursuant to the requirements of the Securities Act) and at the time they were filed with the SEC (in the case of all other SEC Reports) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and the Public Certifications are each true as of their respective dates of filing. As used in this Section 3.6, the term “file” shall be broadly construed to include any manner permitted by SEC rules and regulations in which a document or information is furnished, supplied or otherwise made available to the SEC. As of the date of this Agreement, (A) SPAC Units, SPAC Class A Ordinary Shares and SPAC Public Warrants are listed on Nasdaq, (B) SPAC has not received any written deficiency notice from Nasdaq relating to the continued listing requirements of such SPAC Securities, (C) there are no Actions pending or, to the Knowledge of SPAC, threatened against SPAC by Nasdaq or the Financial Industry Regulatory Authority with respect to any intention by such entity to suspend, prohibit or terminate the quoting of such SPAC Securities on Nasdaq and (D) SPAC and such SPAC Securities are in compliance with all of the applicable rules (including corporate governance rules) of Nasdaq.
(b) The financial statements and notes of SPAC contained or incorporated by reference in the SEC Reports (the “SPAC Financials”), fairly present in all material respects the financial position and the results of operations, changes in shareholders’ equity, and cash flows of SPAC at the respective dates of and for the periods referred to in such financial statements, all in accordance with (i) GAAP applied on a consistent basis throughout the periods involved and (ii) Regulation S-X or Regulation S-K, as applicable (except as may be indicated in the notes thereto and for the omission of notes and audit adjustments in the case of unaudited quarterly financial statements to the extent permitted by Regulation S-X or Regulation S-K, as applicable).
(c) Except as and to the extent reflected or reserved against in SPAC Financials, SPAC has not incurred and is not subject to any Liabilities or obligations of the type required to be reflected on a balance sheet prepared in accordance with GAAP that are not adequately reflected or reserved on or provided for in SPAC Financials, other than Liabilities of the type required to be reflected on a balance sheet in accordance with GAAP that have been incurred since March 31, 2026 in the ordinary course of business.
3.7 Absence of Certain Changes. Except as set forth in Schedule 3.7, SPAC has (a) since its incorporation, conducted no business other than its formation, the public offering of its securities (and the related private offerings), public reporting and its search for an initial Business Combination as described in the IPO Prospectus (including the investigation of the Target Companies and the negotiation and execution of this Agreement) and related activities and (b) since December 31, 2024, not been subject to a Material Adverse Effect on SPAC. Since the IPO, SPAC has not taken any action or committed or agreed to take any action that would be prohibited by Section 5.3(b) (without giving effect to Schedule 5.3) if such action were taken on or after the date hereof without the consent of the Company.
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3.8 Compliance with Laws. SPAC is, and has since its incorporation been, in compliance in all material respects with all Laws applicable to it and the conduct of its business, and SPAC has not received written notice alleging any violation of applicable Law in any material respect by SPAC.
3.9 Actions; Orders; Permits. There is no pending or, to the Knowledge of SPAC, threatened Action to which SPAC is subject which would reasonably be expected to have a Material Adverse Effect on SPAC. There is no material Action that SPAC has pending against any other Person. SPAC is not subject to any material Orders of any Governmental Authority, nor are any such Orders pending. SPAC holds all Permits necessary to lawfully conduct its business as presently conducted, and to own, lease and operate its assets and properties, all of which are in full force and effect, except where the failure to hold such Permit or for such Permit to be in full force and effect would not reasonably be expected to have a Material Adverse Effect on SPAC.
3.10 Taxes and Returns.
(a) SPAC has timely filed, or caused to be timely filed, all material Tax Returns required to be filed by it, which such Tax Returns are true, accurate and complete in all material respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all material Taxes required to be paid, collected or withheld, other than such Taxes for which adequate reserves in SPAC Financials have been established in accordance with GAAP.
(b) Schedule 3.10(b) sets forth each jurisdiction where SPAC files or is required to file a Tax Return.
(c) There are no audits, examinations, investigations or other Actions pending against SPAC in respect of any Tax, and SPAC has not been notified in writing of any proposed Tax claims or assessments against SPAC (other than, in each case, claims or assessments for which adequate reserves in SPAC Financials have been established in accordance with GAAP or are immaterial in amount).
(d) There are no Liens with respect to any Taxes upon any of SPAC’s assets, other than Permitted Liens.
(e) As of the date of this Agreement, SPAC has collected or withheld all Taxes currently required to be collected or withheld by it, and all such Taxes have been paid to the appropriate Governmental Authorities or set aside in appropriate accounts for future payment when due.
(f) SPAC has no outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes. There are no outstanding requests by SPAC for any extension of time within which to file any Tax Return or within which to pay any Taxes shown to be due on any Tax Return.
(g) Since the date of its incorporation, SPAC has not (i) changed any Tax accounting methods, policies or procedures except as required by a change in Law, (ii) made, revoked, or amended any material Tax election, (iii) filed any amended Tax Returns or claim for refund or (iv) entered into any closing agreement affecting or otherwise settled or compromised any material Tax Liability or refund.
(h) SPAC has not participated in, or sold, distributed or otherwise promoted, any “reportable transaction,” as defined in U.S. Treasury Regulation section 1.6011-4.
(i) As of the date hereof, SPAC has not requested, nor is it the subject of or bound by any private letter ruling, technical advice memorandum, closing agreement or similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes, nor is any such request outstanding.
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(j) SPAC: (i) has not constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of securities (to any Person or entity that is not a member of the consolidated group of which SPAC is the common parent corporation) qualifying for, or intended to qualify for, Tax-free treatment under Section 355 of the Code (A) within the two-year period ending on the date hereof or (B) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement; and (ii) is not, nor has ever been, (A) a U.S. real property holding corporation within the meaning of Section 897(c)(2) of the Code, or (B) a member of any consolidated, combined, unitary or affiliated group of corporations for any Tax purposes other than a group of which SPAC is or was the common parent corporation.
(k) To SPAC’s Knowledge, there are no facts, agreements, plans or other circumstances, and SPAC has not taken or agreed to take any action that would reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
3.11 Employees and Employee Benefit Plans. SPAC does not (a) have and has never had any employees or (b) maintain, sponsor, contribute to or otherwise have any Liability under, any Benefit Plans. For the purposes of applicable Law, including the Code, all independent contractors who are currently, or have been, engaged by SPAC are bona fide independent contractors and not employees of SPAC. Except as set forth on Schedule 3.11, each independent contractor is terminable on fewer than thirty (30) days’ notice, without any obligation of SPAC to pay severance or a termination fee.
3.12 Properties. SPAC does not own, license or otherwise have any right, title or interest in any material Intellectual Property. SPAC does not own or lease any material real property or material Personal Property.
3.13 Material Contracts.
(a) Except as set forth on Schedule 3.13(a), other than this Agreement and the Ancillary Documents, there are no Contracts to which SPAC is a party or by which any of its properties or assets may be bound, subject or affected, which (i) creates or imposes a Liability greater than $100,000, (ii) may not be cancelled by SPAC on less than sixty (60) days’ prior notice without payment of a material penalty or termination fee or (iii) prohibits, prevents, restricts or impairs in any material respect any business practice of SPAC as its business is currently conducted, any acquisition of material property by SPAC, or restricts in any material respect the ability of SPAC to engage in business as currently conducted by it or compete with any other Person (each, a “SPAC Material Contract”). All SPAC Material Contracts have been made available to the Company other than those that are exhibits to the SEC Reports.
(b) With respect to each SPAC Material Contract: (i) such SPAC Material Contract was entered into at arms’ length and in the ordinary course of business, (ii) such SPAC Material Contract is legal, valid, binding and enforceable in all material respects against SPAC and, to the Knowledge of SPAC, the other parties thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions), (iii) SPAC is not in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a breach or default in any material respect by SPAC, or permit termination or acceleration by the other party, under such SPAC Material Contract, and (iv) to the Knowledge of SPAC, no other party to such SPAC Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a material breach or default by such other party, or permit termination or acceleration by SPAC under such SPAC Material Contract.
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3.14 Transactions with Affiliates. Schedule 3.14 sets forth a true, correct and complete list of the Contracts and arrangements that are in existence as of the date of this Agreement under which there are any existing or future Liabilities or obligations between SPAC and any (a) present or former director, officer or employee or Affiliate of SPAC, or any immediate family member of any of the foregoing, or (b) record or beneficial owner of more than five percent (5%) of SPAC’s outstanding capital stock as of the date hereof.
3.15 Merger Sub Activities. Since its incorporation, Merger Sub has not engaged in any business activities other than as contemplated by this Agreement, does not own directly or indirectly any ownership, equity, profits or voting interest in any Person and has no assets or Liabilities except those incurred in connection with this Agreement and the Ancillary Documents to which it is or will be a party and the Transactions, and, other than this Agreement and the Ancillary Documents to which it is or will be a party, Merger Sub is not party to or bound by any Contract.
3.16 Investment Company Act. As of the date of this Agreement, SPAC is not an “investment company”, a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, or required to register as an “investment company”, in each case within the meaning of the Investment Company Act.
3.17 Finders and Brokers. Except as set forth on Schedule 3.17, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from SPAC, Merger Sub, the Target Companies or any of their respective Affiliates in connection with the transactions contemplated by this Agreement or the Ancillary Documents based upon arrangements made by or on behalf of SPAC or Merger Sub.
3.18 Ownership of Stockholder Merger Consideration. All shares of SPAC Common Stock to be issued and delivered to the Company Stockholders as Stockholder Merger Consideration in accordance with Article I shall be, upon issuance and delivery of such SPAC Common Stock, fully paid and non-assessable, free and clear of all Liens, other than restrictions arising from applicable securities Laws, any applicable Lock-Up Agreement and any Liens incurred by any Company Stockholder, and the issuance and sale of such SPAC Common Stock pursuant hereto will not be subject to or give rise to any preemptive rights or rights of first refusal.
3.19 Certain Business Practices.
(a) Neither SPAC, nor any of its Representatives acting on its behalf, has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other local or foreign anti-corruption or bribery Law, (iii) made any other unlawful payment or (iv) since the incorporation of SPAC, directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder SPAC or assist it in connection with any actual or proposed transaction.
(b) The operations of SPAC are and have been conducted at all times in compliance in all material respects with money laundering Laws and statutes in all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority, and no Action involving SPAC with respect to any of the foregoing is pending or, to the Knowledge of SPAC, threatened.
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(c) None of SPAC or any of its directors or officers, or, to the Knowledge of SPAC, any other Representative acting on behalf of SPAC is currently identified on the specially designated nationals or other blocked person list or otherwise currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), and SPAC has not, directly or indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any other country sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by OFAC, in each case, since its incorporation.
3.20 Insurance. Schedule 3.20 lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by SPAC relating to SPAC or its business, properties, assets, directors, officers and employees, copies of which have been provided to the Company. All premiums due and payable under all such insurance policies have been timely paid and SPAC is otherwise in compliance in all material respects with the terms of such insurance policies. All such insurance policies are in full force and effect, and to the Knowledge of SPAC, there is no threatened termination of, or material premium increase with respect to, any of such insurance policies. There have been no insurance claims made by SPAC. SPAC has reported to each of its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to have a Material Adverse Effect on SPAC.
3.21 Information Supplied. None of the information supplied or to be supplied by or on behalf of SPAC or Merger Sub expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement and/or Proxy Statement will, when the Registration Statement and the Proxy Statement are declared effective or when the Registration Statement and the Proxy Statement are mailed to SPAC’s shareholders or at the time of SPAC Extraordinary General Meeting, and in the case of any amendment thereto, at the time of such amendment, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided that notwithstanding the foregoing provisions of this Section 3.21, no representation or warranty is made by SPAC with respect to information or statements made or incorporated by reference in the Registration Statement and/or Proxy Statement that were not supplied by or on behalf of SPAC or Merger Sub for use therein.
3.22 Independent Investigation. SPAC has conducted its own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Target Companies, and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Target Companies for such purpose. SPAC acknowledges and agrees that: (a) in making its decision to enter into this Agreement and each Ancillary Document to which it is or will be a party and to consummate the Transactions, it has relied solely upon its own investigation and the express representations and warranties of the Company set forth in this Agreement (including the related portions of the Company Disclosure Schedules) and in any certificate delivered to SPAC pursuant hereto, and the information provided by or on behalf of the Company for the Registration Statement; and (b) none of the Company or its Representatives have made any representation or warranty as to the Target Companies, or this Agreement or any of the Ancillary Documents to which it is or will be a party or the Transactions, except as expressly set forth in this Agreement (including the related portions of the Company Disclosure Schedules) or in any certificate delivered to SPAC pursuant hereto, in such Ancillary Document or with respect to the information provided by or on behalf of the Company for the Registration Statement.
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3.23 No Other Representations. Except for the representations and warranties expressly made by SPAC in this Article III (as modified by SPAC Disclosure Schedules) or as expressly set forth in an Ancillary Document, neither SPAC nor any other Person on its behalf makes any express or implied representation or warranty with respect to any of SPAC or Merger Sub or their respective business, operations, assets or Liabilities, or the transactions contemplated by this Agreement or any of the other Ancillary Documents, and SPAC and Merger Sub each hereby expressly disclaims any other representations or warranties, whether implied or made by SPAC, Merger Sub or any of their respective Representatives. Except for the representations and warranties expressly made by SPAC in this Article III (as modified by SPAC Disclosure Schedules) or in an Ancillary Document, SPAC hereby expressly disclaims all liability and responsibility for any representation, warranty, projection, forecast, statement or information made, communicated or furnished (orally or in writing) to the Company or any of its Representatives (including any opinion, information, projection or advice that may have been or may be provided to the Company or any of its Representatives by any Representative of SPAC or Merger Sub), including any representations or warranties regarding the probable success or profitability of the businesses of SPAC or Merger Sub.
3.24 Trust Account. As of the date of this Agreement, there is at least $183,000,000 held in the Trust Account. The funds held in the Trust Account are invested in U.S. government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act and held in trust pursuant to the Trust Agreement. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of SPAC and, to the Knowledge of SPAC, the Trustee, enforceable in accordance with its terms, subject to the Enforceability Exceptions. The Trust Agreement has not been terminated, repudiated, rescinded, amended, supplemented or modified, in any respect, and, to the Knowledge of SPAC, no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no separate Contracts, side letters or other arrangements (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the SEC Reports to be inaccurate in any material respect or, to the Knowledge of SPAC, that would entitle any Person (other than (i) in respect of deferred underwriting commissions in accordance with SPAC’s underwriting agreement with the IPO Underwriter or Taxes, (ii) the holders of SPAC Common Stock prior to the Effective Time who shall have elected to redeem their SPAC Common Stock pursuant to the SPAC’s Organizational Documents or in connection with an amendment thereof to extend SPAC’s deadline to consummate a Business Combination or (iii) if SPAC fails to complete a Business Combination within the allotted time period and liquidates the Trust Account, subject to the terms of the Trust Agreement, SPAC in limited amounts to permit SPAC to pay the expenses of the Trust Account’s liquidation and dissolution, and then SPAC’s public shareholders) to any portion of the funds in the Trust Account prior to the closing of a Business Combination. Prior to the Closing, none of the funds held in the Trust Account have been released other than as permitted by the Trust Agreement. As of the date of this Agreement, there are no Actions pending or, to the Knowledge of SPAC, threatened with respect to the Trust Account.
3.25 No Alternative Agreements. Neither SPAC nor the Sponsor is a party to any letter of intent, term sheet, or agreement (whether binding or non-binding) with respect to any Alternative Transaction, other than this Agreement.
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Article
IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure schedules delivered by the Company to SPAC on the date hereof (the “Company Disclosure Schedules”), the Section numbers of which are numbered to correspond to the Section numbers of this Agreement to which they refer, the Company hereby represents and warrants to SPAC, as of the date hereof and as of the Closing, as follows:
4.1 Organization and Standing. The Company is a corporation duly incorporated, validly existing and in good standing under the DGCL and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. The Company is duly qualified or licensed to transact business and in good standing to transact business (or the equivalent thereof, if applicable, in each case, with respect to the jurisdictions that recognize the concept of good standing or any equivalent thereof) in the jurisdiction in which it is incorporated or registered and in each other jurisdiction where it does business or operates to the extent that the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. Schedule 4.1 lists all jurisdictions in which each Target Company is qualified to conduct business and all names other than its legal name under which each Target Company does business as of the date hereof. The Company has made available to SPAC accurate and complete copies of the Company’s Organizational Documents and the Organizational Documents of each of its Subsidiaries, each as amended to date and as currently in effect. No Target Company is in violation of any provision of its Organizational Documents in any material respect.
4.2 Authorization; Binding Agreement. The Company has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or is required to be a party, to perform the Company’s obligations hereunder and thereunder and to consummate the Transactions, subject to obtaining the Required Company Stockholder Approval. The execution and delivery of this Agreement and each Ancillary Document to which the Company is or is required to be a party and the consummation of the Transactions, (a) have been duly and validly authorized by the Company’s board of directors in accordance with the Company’s Organizational Documents, the DGCL, any other applicable Law or any Contract to which the Company or any of its stockholders is a party or by which it or its securities are bound and (b) other than the Required Company Stockholder Approval, no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is or is required to be a party or to consummate the Transactions. This Agreement has been, and each Ancillary Document to which the Company is or is required to be a party shall be when delivered, duly and validly executed and delivered by the Company and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of the Company (assuming that this Agreement and the Ancillary Documents to which the Company is or is required to be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto and thereto), enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. The Company’s board of directors, by resolutions duly adopted at a meeting duly called and held (i) determined that this Agreement and the Merger and the other Transactions are advisable, fair to, and in the best interests of, the Company and its stockholders, (ii) approved this Agreement and the Merger and the other Transactions in accordance with the DGCL, (iii) directed that this Agreement be submitted to the Company’s stockholders for adoption and (iv) resolved to recommend that the Company stockholders adopt this Agreement. The Voting Agreements delivered by the Company include holders of Company Stock representing at least the Required Company Stockholder Approval, and such Voting Agreements are in full force and effect.
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4.3 Capitalization.
(a) The Company is authorized to issue (i) 74,738,700 shares of Company Common Stock, 22,179,013 of which shares are issued and outstanding, (ii) 35,486,876 shares of Company Preferred Stock, consisting of (A) 692,625 shares designated as Company Series Seed Junior Prime Preferred Stock, 692,625 of which are issued and outstanding, (B) 3,919,064 shares designated as Company Series Seed 2 Junior Prime Preferred Stock, 3,919,064 of which are issued and outstanding, (C) 671,939 shares designated as Company Series B Junior Prime Preferred Stock, 671,939 of which are issued and outstanding, (D) 4,866,669 shares designated as Company Series B Senior Prime Preferred Stock, 4,866,669 of which are issued and outstanding, (E) 12,090,196 shares designated as Company Series B-1 Preferred Stock, 12,090,196 of which are issued and outstanding, and (F) 13,246,383 shares designated as Company Series B-2 Preferred Stock, 12,934,916 of which are issued and outstanding, and (iii) 607,319 shares of Company FF Preferred Stock, 607,319 of which are issued and outstanding. Prior to giving effect to the Transactions, all of the issued and outstanding Company Stock and other equity interests of the Company are set forth on Schedule 4.3(a), along with the record holders thereof, all of which shares and other equity interests are owned free and clear of any Liens other than those imposed under the Company Charter. All of the outstanding shares and other equity interests of the Company have been duly authorized, are fully paid and non-assessable and not in violation of any purchase option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, any other applicable Law, the Company Charter or any Contract to which the Company is a party or by which it or its securities are bound. The Company holds no shares or other equity interests of the Company in its treasury. None of the outstanding shares or other equity interests of the Company were issued in violation of any applicable securities Laws. The rights, privileges and preferences of the Company Preferred Stock are as stated in the Company Charter and as provided by the DGCL.
(b) The Company is a party to the Pre-Signing Company SAFEs set forth on Schedule 4.3(b) (which Schedule 4.3(b) includes the name of the investor party thereto, the valuation cap and the discount price set forth therein for their investment). A true, complete and correct copy of the form of the Pre-Signing Company SAFEs has been provided to SPAC.
(c) The Company has reserved 10,807,506 shares of Company Common Stock for issuance to officers, directors, employees and consultants of the Company pursuant to the Company Equity Plan, which was duly adopted by the Company’s board of directors and approved by the Company’s stockholders. Of such shares of Company Common Stock reserved for issuance under the Company Equity Plan, (i) 7,415,842 of such shares are reserved for issuance upon exercise of currently outstanding Company Options, (ii) 1,290,069 of such shares are currently issued and outstanding that were issued upon exercise of Company Options previously granted under the Company Equity Plan, and (iii) 2,101,595 shares remain available for future awards permitted under the Company Equity Plan. The Company has furnished to SPAC complete and accurate copies of the Company Equity Plan and forms of agreements used thereunder. Schedule 4.3(c) sets forth the beneficial and record owners of all outstanding Company Options (including the grant date, number and type of shares issuable thereunder, the exercise price, the expiration date and any vesting schedule). Other than as set forth on Schedule 4.3(c), there are no Company Convertible Securities, or preemptive rights or rights of first refusal or first offer, nor are there any Contracts, commitments, arrangements or restrictions to which the Company or, to the Knowledge of the Company, any of its stockholders is a party or bound relating to any Equity Securities of the Company, whether or not outstanding. There are no outstanding or authorized equity appreciation, restricted stock, restricted stock units, profits, interest, phantom equity or similar rights with respect to the Company. Except as set forth on Schedule 4.3(c), there are no voting trusts, proxies, shareholder agreements or any other agreements or understandings to which the Company is a party with respect to the voting of the Company’s Equity Securities. Except as set forth in the Company’s Organizational Documents, there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any Equity Securities of the Company, nor has the Company granted any registration rights to any Person with respect to the Company’s Equity Securities. All of the Company’s outstanding securities have been granted, offered, sold and issued in compliance with all applicable securities Laws. As a result of the consummation of the transactions contemplated by this Agreement, no equity interests of the Company are issuable and no rights in connection with any interests, warrants, rights, options or other securities of the Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
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(d) Each Company Option intended to qualify as an “incentive stock option” under the Code so qualifies. Each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective by all necessary corporate action, and: (i) the stock option agreement governing such grant was duly executed and delivered by each party thereto; (ii) each such grant was made in accordance with the terms of the Company Equity Plan and all other applicable Laws; (iii) the per share exercise price of each Company Option was equal or greater than the fair market value of a share of Company Common Stock on the applicable grant date; and (iv) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company.
(e) Except as disclosed in the Company Financials, since January 1, 2026, the Company has not declared or paid any distribution or dividend in respect of its Equity Securities and has not repurchased, redeemed or otherwise acquired any Equity Securities of the Company, and the board of directors of the Company has not authorized any of the foregoing.
4.4 Subsidiaries. Schedule 4.4 sets forth a true and complete statement of (i) the legal name and jurisdiction of incorporation, organization or formation, as applicable, of each Subsidiary of the Company, (ii) the number and class or series (as applicable) of all of the Equity Securities of each Subsidiary of the Company authorized and issued and outstanding and (iii) the identity of the Persons that are the record and beneficial owners thereof. Except as listed on Schedule 4.4, there are no outstanding (A) equity appreciation, phantom equity or profit participation rights or (B) options, restricted stock, restricted stock units, phantom stock, warrants, purchase rights, subscription rights, conversion rights, exchange rights, calls, puts, rights of first refusal or first offer or other Contracts that could require any Subsidiary of the Company to issue, sell or otherwise cause to become issued and outstanding or to acquire, repurchase or redeem any Equity Securities of any Target Company (including securities convertible into or exchangeable for Equity Securities of any Target Company). There are no voting trusts, proxies or other Contracts with respect to the voting or transfer of any Equity Securities of any Subsidiary of the Company. There are no outstanding bonds, debentures, notes or other indebtedness of any Target Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which an equity holder of a Target Company may vote. Except as listed on Schedule 4.4, there are no outstanding or authorized options, warrants, rights, agreements, subscriptions, convertible securities or commitments to which any Subsidiary of the Company is a party or which are binding upon any Subsidiary of the Company providing for the issuance or redemption of any Equity Securities of any Subsidiary of the Company. No Subsidiary of the Company has any limitation, whether by Contract, Order or applicable Law, on its ability to make any distributions or dividends to its equity holders or repay any debt owed to another Target Company. Except for the Equity Securities of the Subsidiaries listed on Schedule 4.4, the Company does not own or have any rights to acquire, directly or indirectly, any Equity Securities of, or otherwise Control, any Person. None of the Company or its Subsidiaries is a participant in any joint venture, partnership or similar arrangement. There are no outstanding contractual obligations of the Company or its Subsidiaries to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.
4.5 Governmental Approvals. Except as otherwise described in Schedule 4.5, no Consent of or with any Governmental Authority on the part of any Target Company is required to be obtained or made in connection with the execution, delivery or performance by the Company of this Agreement or any Ancillary Documents to which the Company is or is required to be a party or the consummation by the Company of the transactions contemplated hereby or thereby other than (a) such filings as are expressly contemplated by this Agreement, (b) pursuant to Antitrust Laws, including compliance with and filings under the HSR Act, (c) the filing with the SEC of (i) the Registration Statement and the Proxy Statement and the declaration of the effectiveness thereof by the SEC and (ii) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Ancillary Documents or the Transactions or (d) where the failure to obtain or make such Consents or to make such filings or notifications, would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect upon the Target Companies, taken as a whole, or their respective abilities to perform their obligations under this Agreement or the Ancillary Documents or consummate the transactions contemplated hereby or thereby, in any case, in any material respect.
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4.6 Non-Contravention. Except as otherwise described in Schedule 4.6, the execution and delivery by the Company (or any other Target Company, as applicable) of this Agreement and each Ancillary Document to which any Target Company is or is required to be a party or otherwise bound, and the consummation by any Target Company of the Transactions and compliance by any Target Company with any of the provisions hereof and thereof, will not (a) conflict with or violate in any material respect any provision of any Target Company’s Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 4.5 hereof, the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate, or constitute a breach under, any Law, Order or Consent to which a Target Company or any of its properties or assets are subject or bound, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, or cancellation of, (iv) accelerate the performance required by any Target Company under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make additional payments or provide additional compensation under, (vii) result in the creation of any Lien upon any of the properties or assets or Equity Securities of a Target Company under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, or terminate any right, benefit, obligation or other term under, any of the terms, conditions or provisions of any Company Material Contract, except for any deviations from any of the foregoing clauses (b) or (c) that would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect upon the Target Companies, taken as a whole, or their respective abilities to perform their obligations under this Agreement or the Ancillary Documents or consummate the transactions contemplated hereby or thereby, in any case, in any material respect.
4.7 Financial Statements.
(a) As used herein, the term “Company Financials” means the (i) audited consolidated financial statements of the Target Companies (including, in each case, any related notes thereto), consisting of the consolidated balance sheets of the Target Companies as of December 31, 2024 and December 31, 2025, and the related consolidated audited profit and loss statements, changes in stockholder equity and statements of cash flows for the fiscal years then ended, each audited by a PCAOB qualified auditor in accordance with GAAP and PCAOB standards (the “GAAP Audited Company Financials”), (ii) the unaudited consolidated financial statements of the Target Companies, consisting of the consolidated balance sheet of the Target Companies as of March 31, 2026 (the “Interim Balance Sheet Date”) and the related consolidated profit and loss statement, changes in stockholder equity and statement of cash flows for the three (3) months then ended (the “Unaudited Company Financials”). True and correct copies of the GAAP Audited Company Financials and the Unaudited Company Financials have been provided to SPAC. The Company Financials (i) accurately reflect in all material respects the books and records of the Target Companies as of the times and for the periods referred to therein, (ii) were prepared in accordance with GAAP, consistently applied throughout and among the periods involved (except that the unaudited statements exclude the footnote disclosures and other presentation items required for GAAP and exclude year-end adjustments which will not be material in amount), (iii) comply in all material respects with all applicable accounting requirements under the Securities Act and the rules and regulations of the SEC thereunder, and (iv) fairly present in all material respects the consolidated financial position of the Target Companies as of the respective dates thereof and the consolidated results of the operations and cash flows of the Target Companies for the periods indicated. No Target Company has ever been subject to the reporting requirements of Sections 13(a) and 15(d) of the Exchange Act.
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(b) Each Target Company maintains accurate books and records reflecting its assets and Liabilities and maintains proper and adequate internal accounting controls sufficient to provide reasonable assurance that (i) such Target Company does not maintain any off-the-book accounts and that such Target Company’s assets are used only in accordance with such Target Company’s management directives, (ii) transactions are executed with management’s authorization, (iii) transactions are recorded as necessary to permit preparation of the financial statements of such Target Company and to maintain accountability for such Target Company’s assets, (iv) access to such Target Company’s assets is permitted only in accordance with management’s authorization, (v) the reporting of such Target Company’s assets is compared with existing assets at regular intervals and verified for actual amounts, and (vi) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection of accounts, notes and other receivables on a current and timely basis. All of the financial books and records of the Target Companies are complete and accurate in all material respects and have been maintained in the ordinary course and in accordance with applicable Laws. No Target Company has been subject to or involved in any material fraud that involves management or other employees who have a significant role in the internal controls over financial reporting of any Target Company. In the past five (5) years, no Target Company or its Representatives has received any written complaint, allegation, assertion or claim regarding the accounting or auditing practices, procedures, methodologies or methods of any Target Company or its internal accounting controls, including any material written complaint, allegation, assertion or claim that any Target Company has engaged in questionable accounting or auditing practices.
(c) The Target Companies do not have any Indebtedness other than the Indebtedness set forth on Schedule 4.7(c), which schedule sets for the amounts (including principal and any accrued but unpaid interest or other obligations) with respect to such Indebtedness. Except as disclosed on Schedule 4.7(c), no Indebtedness of any Target Company contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by any Target Company, or (iii) the ability of the Target Companies to grant any Lien on their respective properties or assets.
(d) Except as set forth on Schedule 4.7(d), no Target Company is subject to any Liabilities or obligations that are required to be reflected on a balance sheet prepared in accordance with GAAP, except for those that are either (i) adequately reflected or reserved on or provided for in the consolidated balance sheet of the Company and its Subsidiaries as of the Interim Balance Sheet Date contained in the Company Financials, (ii) were incurred after the Interim Balance Sheet Date in the ordinary course of business (other than Liabilities for breach of any Contract or violation of any Law) or (iii) are Liabilities for expenses incurred in connection with the transactions contemplated by this Agreement.
(e) The financial projections with respect to the Target Companies that were delivered by or on behalf of the Company to SPAC or its Representatives were prepared in good faith using assumptions that the Company believes to be reasonable.
(f) All accounts, notes and other receivables, whether or not accrued, and whether or not billed, of the Target Companies (the “Accounts Receivable”) arose from sales actually made or services actually performed in the ordinary course of business and represent valid obligations to a Target Company arising from its business. None of the Accounts Receivable are subject to any right of recourse, defense, deduction, return of goods, counterclaim, offset, or set off on the part of the obligor in excess of any amounts reserved therefore on the Company Financials. All of the Accounts Receivable are, to the Knowledge of the Company, fully collectible according to their terms in amounts not less than the aggregate amounts thereof carried on the books of the Target Companies (net of reserves) within ninety (90) days.
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4.8 Absence of Certain Changes. Except as set forth on Schedule 4.8, since December 31, 2025, each Target Company has (a) conducted its business only in the ordinary course of business, (b) not been subject to a Material Adverse Effect and (c) has not taken any action or committed or agreed to take any action that would be prohibited by Section 5.2(b) (without giving effect to Schedule 5.2) if such action were taken on or after the date hereof without the consent of SPAC.
4.9 Compliance with Laws. Each Target Company is or has been in compliance in all material respects with all Laws applicable to it and the conduct of its business. No Target Company has received, in any case, since January 1, 2023, any written notice of any material conflict or non-compliance with, or material default or violation of, any applicable Laws by which it or any of its properties, assets, employees, business or operations are or were bound or affected.
4.10 Company Permits. Each Target Company (and its employees who are legally required to be licensed by a Governmental Authority in order to perform his or her duties with respect to his or her employment with any Target Company), holds all Permits necessary to lawfully conduct in all material respects its business as presently conducted and as currently contemplated to be conducted, and to own, lease and operate its assets and properties (collectively, the “Company Permits”). The Company has made available to SPAC true, correct and complete copies of all material Company Permits, all of which material Company Permits are listed on Schedule 4.10. All of the Company Permits are in full force and effect, and no suspension or cancellation of any of the Company Permits is pending or, to the Company’s Knowledge, threatened in writing. No Target Company is in violation in any material respect of the terms of any Company Permit, and no Target Company has received any written notice of any Actions relating to the revocation or modification of any Company Permit.
4.11 Litigation. Except as described on Schedule 4.11, in the three (3) years prior to the date of this Agreement there has not been any (a) Action by any Person pending or, to the Company’s Knowledge, threatened in writing against or involving any Target Company or, to the Company’s Knowledge, pending or threatened in writing against or involving any Target Company’s directors or officers (in their capacity as such), except, in each case, as is not and would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect upon the Target Companies, taken as a whole, or (b) material Action by a Target Company pending against any other Person. Neither the Target Companies nor any of their respective properties or assets are subject to any material Order, except as set forth on Schedule 4.11. In the past five (5) years, none of the current or former officers, senior management or directors of any Target Company have been charged with, indicted for, arrested for, or convicted of any felony or any crime involving fraud.
4.12 Material Contracts.
(a) Schedule 4.12(a) sets forth a true, correct and complete list of, and the Company has made available to SPAC (including written summaries of oral Contracts), true, correct and complete copies of, each Contract to which any Target Company is a party or by which any Target Company, or any of its properties or assets are bound (each Contract required to be set forth on Schedule 4.12(a), a “Company Material Contract”) that:
(i) contains covenants that limit the ability of any Target Company (A) to compete in any line of business or with any Person or in any geographic area or to sell, or provide any service or product or solicit any Person, including any non-competition covenants, customer non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses or (B) to purchase or acquire an interest in any other Person;
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(ii) involves any joint venture, profit-sharing, partnership, limited liability company or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(iii) involves any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(iv) evidences Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any Target Company having an outstanding principal amount in excess of $200,000;
(v) involves the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $200,000 (other than in the ordinary course of business);
(vi) any Contract with any Person under which any Target Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to lease or any other similar rights with respect to any material Company Owned IP;
(vii) shares or other equity interests of any Target Company or another Person;
(viii) relates to any merger, consolidation or other business combination with any other Person or the acquisition or disposition of any other entity or its business or material assets or the sale of any Target Company, its business or material assets;
(ix) by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Target Companies under such Contract or Contracts of at least $500,000 per year or $1,000,000 in the aggregate, other than at-will employment arrangements with employees entered into in the ordinary course of business;
(x) is with any Top Customer or Top Supplier;
(xi) obligates the Target Companies to provide continuing indemnification (outside of indemnification obligations in agreements with third parties entered into in the ordinary course of business consistent with past practice) or a guarantee of obligations or Liabilities of a third party in the aggregate in excess of $200,000;
(xii) is between any Target Company and any directors, officers or employees of a Target Company (other than at-will employment arrangements with employees entered into in the ordinary course of business), including all non-competition, severance and indemnification agreements, or any Related Person;
(xiii) obligates the Target Companies to make any capital commitment or expenditure in excess of $200,000 (including pursuant to any joint venture);
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(xiv) relates to a material settlement entered into within three (3) years prior to the date of this Agreement or under which any Target Company has outstanding material obligations (other than customary confidentiality obligations);
(xv) provides another Person (other than another Target Company or any manager, director or officer of any Target Company) with a power of attorney;
(xvi) relates to the development, ownership, licensing or use of any material Intellectual Property by, to or from any Target Company, other than (A) Off-the-Shelf Software; (B) licenses for Open Source Materials; (C) Contracts which include non-exclusive license grants by a Target Company in the ordinary course of business, (D) Contracts which include non-exclusive license grants that are incidental to the primary purpose of the Contract, (E) nondisclosure agreements, and (F) employment and service Contracts with employees and contractors in the ordinary course of business ((A)-(F), collectively, “Standard IP Agreements”);
(xvii) that will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant; or
(xviii) is otherwise material to any Target Company and outside of the ordinary course of business and not described in clauses (i) through (xvii) above.
(b) Except as disclosed in Schedule 4.12(b), with respect to each Company Material Contract: (i) such Company Material Contract is valid and binding and enforceable in all material respects against the Target Company party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions); (ii) the consummation of the transactions contemplated by this Agreement will not affect the validity or enforceability of any Company Material Contract in any material respect; (iii) no Target Company is in breach or default in any material respect, and, no event has occurred that with the passage of time or giving of notice or both would constitute a material breach or default by the Target Company, or permit termination or acceleration by the other party thereto, under such Company Material Contract; (iv) to the Knowledge of the Company, no other party to such Company Material Contract is in breach or default in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a material breach or default by such other party, or permit termination or acceleration by any Target Company, under such Company Material Contract; (v) no Target Company has received written or, to the Knowledge of the Company, oral notice of an intention by any party to any such Company Material Contract that provides for a continuing obligation by any party thereto to terminate such Company Material Contract or amend the terms thereof, other than modifications in the ordinary course of business that do not adversely affect any Target Company in any material respect; and (vi) no Target Company has waived any material rights under any such Company Material Contract.
4.13 Intellectual Property.
(a) Schedule 4.13(a)(i) sets forth: (i) all Company Registered IP, specifying as to each item, as applicable: (A) the applicable name and/or title, (B) the registered owner of the item, (C) the jurisdictions in which the item is issued or registered or in which an application for issuance or registration has been filed and (D) the issuance, registration or application numbers and dates; and (ii) all material unregistered Trademarks owned or purported to be owned by a Target Company. Schedule 4.13(a)(ii) sets forth all Company Inbound IP Licenses involving license fees of more than $200,000.
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(b) Each Target Company owns all rights, titles, and interests in the Company Owned IP of the Target Company, free and clear of all Liens (other than Permitted Liens), and has valid and enforceable rights in, and has the unrestricted (subject to Permitted Liens) right to use, sell, license, transfer or assign, all Intellectual Property currently used or licensed by such Target Company for the conduct of the Target Companies’ business as currently conducted, except for the Intellectual Property that is the subject of the Company Inbound IP Licenses. No item of Company Registered IP that consists of a pending Patent application fails to identify all pertinent inventors or incorrectly identifies one or more persons as inventors, and for each Patent and Patent application in the Company Registered IP, the Target Companies have obtained valid assignments of inventions from each inventor, including where such inventions were created during the course of such Person’s employment or engagement by the applicable Target Companies. Except as set forth on Schedule 4.13(b), all Company Registered IP is owned exclusively by the applicable Target Company without obligation to pay royalties or other fees, or otherwise account to any third party with respect to such Company Registered IP, and all necessary registration, maintenance, renewal, and other relevant filing fees due through the date of this Agreement have been timely paid with respect to such Company Registered IP, and such Target Company has recorded assignments of all Company Registered IP, as applicable. All Company Registered IP is, to the Knowledge of the Company, valid, in force and in good standing with all required fees and maintenance fees having been paid with no Actions pending, and all applications to register any Copyrights, Patents and Trademarks are pending and in good standing, all without challenge of any kind. Each Target Company has a valid and enforceable license to use all Intellectual Property that is the subject of the Company Inbound IP Licenses applicable to such Target Company. Excluding Standard IP Agreements, the Company Inbound IP Licenses include all of the material licenses, sublicenses and other agreements for the use of Intellectual Property owned by a third party necessary to operate the Target Companies as presently conducted. Each Target Company has complied in all material respects with the terms and conditions of the Company Inbound IP Licenses, has made all payments required under the Company Inbound IP Licenses to date, and such Target Company is not, nor, to the Knowledge of the Company, is any other party thereto, in breach or default of any material terms thereunder, nor, to the Knowledge of the Company, has any event occurred that would, including with notice or lapse of time or both, constitute a material default thereunder. The continued use by the Target Companies of the Intellectual Property that is the subject of the Company Inbound IP Licenses in the same manner that it is currently being used is not restricted by any applicable license of any Target Company.
(c) Schedule 4.13(c) sets forth all Company Outbound IP Licenses involving license fees of more than $200,000 in the aggregate. Each Target Company has complied in all material respects with the terms and conditions of the Company Outbound IP Licenses, and such Target Company is not, nor, to the Knowledge of the Company, is any other party thereto, in material breach or material default thereunder, nor, to the Knowledge of the Company, has any event occurred that with notice or lapse of time or both would constitute a material default thereunder.
(d) No Action is pending or, to the Knowledge of the Company, threatened against a Target Company that challenges the validity, enforceability, ownership, or right to use, sell, license or sublicense, any Company Owned IP, nor, to the Knowledge of the Company, is there any reasonable basis for any such Action. No Target Company has received any written or, to the Knowledge of the Company, oral notice or claim asserting that the business activities, products, or services of any Target Company infringe, misappropriate, violate, dilute or constitute any unauthorized use of the Intellectual Property of any other Person, nor to the Knowledge of the Company is there a reasonable basis therefor. There are no Orders to which any Target Company is a party or its otherwise bound that (i) restrict the rights of a Target Company to use, transfer, license or enforce any Company Owned IP, (ii) restrict the conduct of the business of a Target Company in order to accommodate a third Person’s Intellectual Property, or (iii) other than the Company Outbound IP Licenses, grant any third Person any right with respect to any material Company Owned IP. No Target Company is currently infringing upon, or has, in the last six (6) years, infringed, misappropriated or violated any Intellectual Property of any other Person in any material respect in connection with the ownership, use or license of any Intellectual Property owned or purported to be owned by a Target Company or, to the Knowledge of the Company, otherwise used in connection with the conduct of the respective businesses of the Target Companies. To the Company’s Knowledge, no third party is currently, or in the past six (6) years has been, infringing upon, misappropriating or otherwise violating any Company Owned IP in any material respect.
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(e) All officers, directors, employees and independent contractors of a Target Company (and each of their respective Affiliates) involved in the creation of Company Owned IP within their scope of employment or engagement have assigned to the Target Companies all such Company Owned IP, and all such assignments of Company Registered IP created by such officers, directors, employees and independent contractors have been recorded. No current or former officers, employees or independent contractors of a Target Company have claimed any ownership interest in any material Intellectual Property owned by a Target Company. To the Knowledge of the Company, there has been no violation of a Target Company’s policies or practices related to protection of Company Owned IP or any confidentiality or nondisclosure Contract relating to Company Owned IP. The Company has made available to SPAC true and complete copies of all written Contracts referenced in subsections under which employees and independent contractors assigned the Company Owned IP to a Target Company. Each Target Company has taken commercially reasonable security measures designed to protect the secrecy, confidentiality and value of the material Company Owned IP.
(f) To the Knowledge of the Company, no Person has obtained unauthorized use of or access to third party confidential information or Personal Information in the possession of a Target Company (“Sensitive Information”), nor has there been any other material compromise of the security or confidentiality of such Sensitive Information. No Target Company has received any written or, to the Knowledge of the Company, oral complaint (i) relating to the Processing of Personal Information and alleging a violation of applicable Laws, written Contract requirements or policies of a Target Company, or (ii) alleging a breach in the security of, any such Sensitive Information. Each Target Company has complied in all material respects with all applicable Laws and written Contract requirements relating to privacy, protection, and the Processing of Personal Information and its own written privacy policies and guidelines. To the Knowledge of the Company, the operation of the business of the Target Companies has not and does not violate any right to privacy or publicity of any third person under applicable Law, in any case, in any material respect.
(g) The consummation of the transactions contemplated by this Agreement will not result in the material breach, material modification, cancellation, termination, suspension of, or acceleration of any Company Inbound IP Licenses or Company Outbound IP Licenses, or any payments with respect to, or release of source code included as part of Company Owned IP. As of and following the Closing, the Company shall be permitted to exercise, directly or indirectly through its Subsidiaries, all of the Target Companies’ rights under the Company Outbound IP Licenses and the Company Inbound IP Licenses to the same extent that the Target Companies would have been able to exercise had the transactions under this Agreement not occurred, without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Target Companies would otherwise be required to pay in the absence of such transactions.
4.14 Taxes and Returns.
(a) Each Target Company has timely filed, or caused to be timely filed, all material Tax Returns required to be filed by it (taking into account all available extensions), which such Tax Returns are true, accurate, correct and complete in all material respects, and has paid, collected or withheld, or caused to be paid, collected or withheld, all material Taxes required to be paid, collected or withheld, other than such Taxes for which adequate reserves in the Company Financials have been established.
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(b) There is no Action currently pending or, to the Knowledge of the Company, threatened against a Target Company by a Governmental Authority in a jurisdiction where the Target Company does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.
(c) No Target Company is being audited by any Tax authority or has been notified in writing or, to the Knowledge of the Company, orally by any Tax authority that any such audit is contemplated or pending. There are no audits, examinations, investigations or other Actions pending against a Target Company in respect of any material Tax, and no Target Company has been notified in writing of any proposed Tax claims or assessments against it (other than, in each case, claims or assessments for which adequate reserves in the Company Financials have been established).
(d) There are no Liens with respect to any material Taxes upon any Target Company’s assets, other than Permitted Liens.
(e) As of the date of this Agreement, each Target Company has collected or withheld all material Taxes currently required to be collected or withheld by it, and all such Taxes have been paid to the appropriate Governmental Authorities or set aside in appropriate accounts for future payment when due.
(f) No Target Company has any material outstanding waivers or extensions of any applicable statute of limitations to assess any material amount of Taxes (other than extensions with respect to the filing of Tax Returns). There are no material outstanding requests by a Target Company for any extension of time within which to file any Tax Return or within which to pay any Taxes shown to be due on any Tax Return (other than extensions obtained in the ordinary course of business for which adequate reserves in the Company Financials have been established or that are immaterial in amount).
(g) No Target Company has been a party to, participated in, or sold, distributed or otherwise promoted, any “reportable transaction,” as defined in U.S. Treasury Regulation section 1.6011-4.
(h) The Company is not a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement, arrangement or practice (excluding commercial agreements entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes) with respect to Taxes (including advance pricing agreement, closing agreement or other agreement relating to Taxes with any Governmental Authority) that will be binding on any Target Company with respect to any period following the Closing Date.
(i) No Target Company has requested, or is it the subject of or bound by any private letter ruling, technical advice memorandum, closing agreement or similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes, nor is any such request outstanding.
(j) No Target Company: (i) has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of securities (to any Person or entity that is not a member of the consolidated group of which the Company is the common parent corporation) qualifying for, or intended to qualify for, Tax-free treatment under Section 355 of the Code (A) within the two-year period ending on the date hereof or (B) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement; or (ii) is or has ever been (A) a U.S. real property holding corporation within the meaning of Section 897(c)(2) of the Code, or (B) a member of any consolidated, combined, unitary or affiliated group of corporations for any Tax purposes other than a group of which the Company is or was the common parent corporation.
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(k) To the Knowledge of the Company, there are no facts, agreements, plans or other circumstances, and no Target Company has taken or agreed to take any action that would reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
4.15 Real Property. Schedule 4.15 contains a complete and accurate list of all premises currently leased or subleased or otherwise used or occupied by a Target Company for the operation of the business of a Target Company, and of all current leases, lease guarantees, agreements and documents related thereto, including all amendments, terminations and modifications thereof or waivers thereto (collectively, the “Company Real Property Leases”), as well as the current annual rent and term under each Company Real Property Lease. The Company has provided to SPAC a true and complete copy of each of the Company Real Property Leases, and in the case of any oral Company Real Property Lease, a written summary of the material terms of such Company Real Property Lease. The Company Real Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect. To the Knowledge of the Company, no event has occurred which (whether with or without notice, lapse of time or both or the happening or occurrence of any other event) would constitute a default on the part of a Target Company or any other party under any of the Company Real Property Leases, and no Target Company has received notice of any such condition. No Target Company owns or has ever owned any real property or any interest in real property (other than the leasehold interests in the Company Real Property Leases).
4.16 Personal Property. Except as set forth in Schedule 4.16, all items of Personal Property that are currently owned, used or leased by a Target Company are in good operating condition and repair (reasonable wear and tear excepted consistent with the age of such items), and are suitable for their intended use in the business of the Target Companies. The operation of each Target Company’s business as it is now conducted is not dependent upon the right to use the material Personal Property of Persons other than a Target Company, except for such Personal Property that is owned, leased or licensed by or otherwise contracted to a Target Company.
4.17 Title to and Sufficiency of Assets. Each Target Company has good and marketable title to, or, in the case of leased or subleased assets, an enforceable leasehold interest in, or, in the case of licensed assets, a valid license in, all of its material tangible assets, free and clear of all Liens other than (a) Permitted Liens, (b) the rights of lessors under leasehold interests, (c) Liens specifically identified on the balance sheet as of the Interim Balance Sheet Date included in the Company Financials and (d) Liens set forth on Schedule 4.17, except as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Target Companies, taken as a whole. The assets (including Intellectual Property rights and contractual rights) of the Target Companies constitute all of the material assets, rights and properties that are used in the operation of the businesses of the Target Companies as it is now conducted or that are used or held by the Target Companies for use in the operation of the businesses of the Target Companies, and taken together, are adequate and sufficient in all material respects for the operation of the businesses of the Target Companies as currently conducted, provided that no representation is made pursuant to this paragraph regarding infringement of any Intellectual Property rights of any Person.
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4.18 Employee Matters.
(a) Except as set forth in Schedule 4.18(a), no Target Company is a party to any collective bargaining agreement or other Contract covering any group of employees, labor organization or other representative of any of the employees of any Target Company, and the Company has no Knowledge of any activities or proceedings of any labor union or other party to organize or represent such employees. There has not occurred or, to the Knowledge of the Company, been threatened any strike, slow-down, picketing, work-stoppage, or other similar labor activity with respect to any such employees. Schedule 4.18(a) sets forth all unresolved labor claims, charges and/or litigations (including unresolved grievances and age or other discrimination claims), if any, that are pending or, to the Knowledge of the Company, threatened between any Target Company and Persons employed by or providing services as independent contractors to a Target Company. No current officer or employee of a Target Company has provided any Target Company written or, to the Knowledge of the Company, oral notice of his or her plan to terminate his or her employment with any Target Company. No material employee layoff, facility closure or shutdown (whether voluntary or by Law or Order), reduction-in-force, furlough, temporary layoff, material work schedule change or reduction in hours, salary or wages, or other workforce changes affecting Target Company employees that would trigger notice obligations under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar federal, state, local or foreign Laws, has occurred since January 1, 2023, or is currently contemplated, planned or announced. Since January 1, 2023, no Target Company has implemented any plant closing or employee layoffs that would trigger notice obligations under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar federal, state, local or foreign Laws.
(b) Except as set forth in Schedule 4.18(b) or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Target Companies taken as a whole, (i) each Target Company is and has for the past four (4) years been in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, occupational health, safety and wages and hours, and other Laws relating to discrimination, disability, labor relations, hours of work, payment of wages and overtime wages, pay equity, immigration, workers compensation, working conditions, employee scheduling, family and medical leave, and employee terminations, (ii) no Target Company has received written or, to the Knowledge of the Company, oral notice that there is any pending Action involving unfair labor practices against a Target Company, (iii) no Target Company is liable for any material past due arrears of wages or any material penalty for failure to comply with any of the foregoing, and (iv) no Target Company is liable for any material payment to any Governmental Authority with respect to unemployment compensation benefits, social security or other benefits or obligations for employees, independent contractors or consultants (other than routine payments to be made in the ordinary course of business). There are no Actions pending or, to the Knowledge of the Company, threatened against a Target Company brought by or on behalf of any applicant for employment, any current or former employee, any Person alleging to be a current or former employee, or any Governmental Authority, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging any other discriminatory, wrongful or tortious conduct in connection with the employment relationship.
(c) Schedule 4.18(c) hereto sets forth a complete and accurate list as of the date hereof of all employees of the Target Companies showing for each as of such date (i) the employee’s name, job title or description, employer, location, salary level (including any bonus, commission, deferred compensation or other remuneration payable (other than any such arrangements under which payments are at the discretion of the Target Companies)), and (ii) any bonus, commission or other remuneration other than salary paid during the fiscal year ended December 31, 2025, and from that date until the date hereof. Except as set forth on Schedule 4.18(c), each employee of a Target Company is employed “at will”. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Target Companies have paid in full to all their employees all wages, salaries, commission, bonuses and other compensation due to their employees, including overtime compensation, and no Target Company has any material obligation or Liability (whether or not contingent) with respect to severance payments to any such employees under the terms of any written or, to the Company’s Knowledge, oral agreement, or commitment or any applicable Law, custom, trade or practice. Except as set forth in Schedule 4.18(c), each Target Company employee has entered into the Company’s standard form of employee non-disclosure, inventions and restrictive covenants agreement with a Target Company (whether pursuant to a separate agreement or incorporated as part of such employee’s overall employment agreement), a copy of which has been made available to SPAC by the Company.
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(d) Schedule 4.18(d) contains a list of all independent contractors (including consultants) currently engaged by any Target Company, along with the position, the entity engaging such Person, date of retention and rate of remuneration, for each such Person. Except as set forth on Schedule 4.18(d), all of such independent contractors are a party to a written Contract with a Target Company. Except as set forth on Schedule 4.18(d), each such independent contractor has entered into customary covenants regarding confidentiality, non-solicitation and assignment of inventions and copyrights in such Person’s agreement with a Target Company, a copy of which has been provided to SPAC by the Company. For the purposes of applicable Law, including the Code, all independent contractors who are currently, or within the last six (6) years have been, engaged by a Target Company are bona fide independent contractors and not employees of a Target Company. Except as set forth on Schedule 4.18(d), each independent contractor is terminable on fewer than thirty (30) days’ notice, without any obligation of any Target Company to pay severance or a termination fee.
4.19 Benefit Plans.
(a) Set forth on Schedule 4.19(a) is a true and complete list of each material Benefit Plan of a Target Company (each, a “Company Benefit Plan”).
(b) With respect to each Company Benefit Plan, there are no funded benefit obligations for which contributions have not been made or properly accrued and there are no unfunded benefit obligations that have not been accounted for by reserves, or otherwise properly footnoted, in accordance with GAAP on the Company Financials. No Target Company is or has in the past been a member of a “controlled group” for purposes of Section 414(b), (c), (m) or (o) of the Code, nor does any Target Company have any Liability with respect to any collectively-bargained for plans, whether or not subject to the provisions of ERISA. No statement, either written or oral, has been made by any Target Company to any Person with regard to any Company Benefit Plan that was not in accordance with the Company Benefit Plan in any material respect.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each Company Benefit Plan is and has been operated and administered in all material respects in accordance with its terms and in compliance with all applicable Laws, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has been determined by the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter) during the period from its adoption to the date of this Agreement and (ii) its related trust is exempt from taxation under Section 501(a) of the Code or the Target Companies have requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law. To the Company’s Knowledge, no fact exists which could reasonably be expected to adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(d) With respect to each Company Benefit Plan, the Company has provided to SPAC accurate and complete copies, if applicable, of: (i) the Company Benefit Plan, including related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) the most recent summary plan descriptions and material modifications thereto; (iii) the most recent Forms 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent nondiscrimination testing reports; (v) the most recent determination or opinion letter received from the IRS, if any; (vi) the most recent actuarial valuation; and (vii) all material written correspondence or notices with any Governmental Authority received within the last three (3) years.
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(e) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, with respect to each Company Benefit Plan: (i) no breach of fiduciary duty has occurred; (ii) no Action is pending, or to the Company’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of administration); (iii) no prohibited transaction, as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (iv) all contributions and premiums due through the Closing Date have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials.
(f) No Company Benefit Plan is a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and no Target Company has incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and, to the Company’s Knowledge, no condition presently exists that is reasonably expected to cause such Liability to be incurred. No Company Benefit Plan will become a multiple employer plan with respect to any Target Company immediately after the Closing Date. No Target Company currently maintains or has in the past three (3) years maintained, or is required currently or has in the past three (3) years been required to contribute to or otherwise participate in, a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code.
(g) There is no Contract or Company Benefit Plan covering any Person that, individually or collectively, could give rise to the payment of any amount that by operation of Sections 280G or 162(m) of the Code would not be deductible by the Target Companies and no arrangement exists pursuant to which a Target Company will be required to “gross up” or otherwise compensate any person because of the imposition of any excise tax under Sections 409A or 4999 of the Code on a payment to such person.
(h) With respect to each Company Benefit Plan which is a “welfare plan” (as described in Section 3(1) of ERISA): (i) no such plan provides medical or death benefits with respect to current or former employees of a Target Company beyond their termination of employment (other than group health plan continuing coverage mandated by Law, which is paid solely by such employees, which is a part of the Target Company’s severance plans or arrangements or which is provided under the Target Company’s long-term or short-term disability benefit plans); and (ii) there are no reserves, assets, surplus or prepaid premiums under any such plan. Each Target Company has complied in all material respects with the provisions of Section 601 et seq. of ERISA and Section 4980B of the Code.
(i) The consummation of the transactions contemplated by this Agreement and the Ancillary Documents will not: (i) entitle any individual to severance pay, unemployment compensation or other benefits or compensation; (ii) accelerate the time of payment or vesting, or increase the amount of any compensation due, or in respect of, any individual; or (iii) result in or satisfy a condition to the payment of compensation that would, in combination with any other payment, result in an “excess parachute payment” within the meaning of Section 280G of the Code. No Target Company has incurred any Liability for any Tax imposed under Chapter 43 of the Code or civil liability under Section 502(i) or (l) of ERISA.
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(j) Except to the extent required by Section 4980B of the Code or similar state Law, no Target Company provides health or welfare benefits to any former or retired employee or is obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(k) Each Company Benefit Plan that is subject to Section 409A of the Code (each, a “Section 409A Plan”) is indicated as such on Schedule 4.19(k). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, each Section 409A Plan has been administered in compliance, and is in documentary compliance with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder, in each case, in all material respects. No Company Options or other equity-based awards have been issued or granted by the Company that are, or are subject to, a Section 409A Plan. No Target Company has any obligation to any employee or other service provider with respect to any Section 409A Plan that may be subject to any Tax under Section 409A of the Code. No payment to be made under any Section 409A Plan is, or to the Knowledge of the Company will be, subject to the penalties of Section 409A(a)(1) of the Code. There is no Contract or plan to which any Target Company is a party or by which it is bound to compensate any employee, consultant or director for penalty taxes paid pursuant to Section 409A of the Code.
4.20 Environmental Matters. Except as set forth in Schedule 4.20:
(a) Each Target Company is and for the past five (5) years has been in compliance in all material respects with all applicable Environmental Laws, including obtaining, maintaining in good standing, and complying in all material respects with all Permits required for its business and operations by Environmental Laws (“Environmental Permits”), no Action is pending or, to the Company’s Knowledge, threatened to revoke, modify, or terminate any such Environmental Permit, and, to the Company’s Knowledge, no facts, circumstances, or conditions currently exist that would reasonably be expected to adversely affect such continued compliance with Environmental Laws and Environmental Permits or require capital expenditures to achieve or maintain such continued compliance with Environmental Laws and Environmental Permits.
(b) No Target Company is the subject of any outstanding Order or Contract with any Governmental Authority or other Person in respect of any (i) Environmental Laws, (ii) Remedial Action, or (iii) Release or threatened Release of a Hazardous Material. No Target Company has assumed, contractually or by operation of Law, any material Liabilities or obligations of a third party under any Environmental Laws.
(c) No Action is pending, or to the Company’s Knowledge, threatened against any Target Company or any assets of a Target Company alleging either or both that a Target Company may be in material violation of any Environmental Law or Environmental Permit or may have any material Liability under any Environmental Law.
(d) No Target Company has manufactured, treated, stored, disposed of, arranged for or permitted the disposal of, generated, handled or released any Hazardous Material, or owned or operated any property or facility, in a manner that has given or would reasonably be expected to give rise to any material Liability or obligation under applicable Environmental Laws. To the Company’s Knowledge, no Target Company has any Environmental Liabilities associated with any property currently or formerly owned, operated, or leased by any Target Company or any property to which a Target Company arranged for the disposal or treatment of Hazardous Materials.
(e) To the Company’s Knowledge, there is no investigation of the business, operations, or currently or formerly owned, operated, or leased property of a Target Company pending or threatened that could reasonably be expected to lead to the imposition of any Liens under any Environmental Law or material Environmental Liabilities.
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(f) To the Knowledge of the Company, there is not located at any of the properties of a Target Company any (i) underground storage tanks, (ii) asbestos-containing material, or (iii) equipment containing polychlorinated biphenyls.
(g) The Company has provided to SPAC all environmentally related site assessments, audits, studies, reports, analyses and results of investigations that have been performed in respect of the currently or previously owned, leased, or operated properties of any Target Company in the past three (3) years, in each case that are in the Company’s possession.
4.21 Transactions with Related Persons. Except as set forth on Schedule 4.21, no Target Company nor any of its Affiliates, nor any officer, director, manager, employee, trustee or beneficiary of a Target Company or any of its Affiliates, nor any immediate family member of any of the foregoing (whether directly or indirectly through an Affiliate of such Person) (each of the foregoing, a “Related Person”) is presently, or in the past three (3) years, has been, a party to any transaction with a Target Company, including any Contract or other arrangement (a) providing for the furnishing of services by (other than as officers, directors, or employees of a Target Company), (b) providing for the rental of real property or Personal Property from or (c) otherwise requiring payments to (other than for services or expenses as officers, directors, or employees of the Target Company in the ordinary course of business) any other Related Person or any Person in which any Related Person has an interest as an owner, officer, manager, director, trustee or partner or in which any Related Person has any direct or indirect interest (other than the ownership of securities representing no more than two percent (2%) of the outstanding voting power or economic interest of a publicly traded company). Except as set forth on Schedule 4.21, no Target Company has outstanding any material Contract or other material arrangement or material commitment with any Related Person, and no Related Person owns any real property or Personal Property, or right, tangible or intangible (including Intellectual Property), which is used in the business of any Target Company. Except as set forth on Schedule 4.21, the assets of the Target Companies do not include any receivable or other obligation from a Related Person, and the liabilities of the Target Companies do not include any payable or other obligation or commitment to any Related Person.
4.22 Insurance.
(a) Schedule 4.22(a) lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by a Target Company relating to a Target Company or its business, properties, assets, directors, officers and employees, copies of which have been made available to SPAC. All premiums due and payable under all such insurance policies have been paid timely and the Target Companies are otherwise in material compliance with the terms of such insurance policies. Each such insurance policy (i) is legal, valid, binding, enforceable and in full force and effect in all material respects and (ii) will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects on identical terms following the Closing, in each case, subject to the Enforceability Exceptions. No Target Company has any self-insurance or co-insurance programs. In the past three (3) years, no Target Company has received any written notice from, or on behalf of, any insurance carrier relating to or involving any adverse change or any change other than in the ordinary course of business, in the conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy.
(b) Schedule 4.22(a) identifies each individual insurance claim in excess of $100,000 made by a Target Company in the past three (3) years. Each Target Company has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not, individually or in the aggregate, be reasonably likely to be material to the Target Companies, taken as a whole. To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice or lapse of time) give rise to or serve as a basis for the denial of any such insurance claim. No Target Company has made any material claim against an insurance policy as to which the insurer is denying coverage.
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4.23 Top Customers and Top Suppliers. Schedule 4.23 lists, by dollar volume received or paid, as applicable, for each of (a) the twelve (12) months ended on December 31, 2025 and (b) the period from January 1, 2026 through the Interim Balance Sheet Date, the ten (10) largest customers of the Target Companies (the “Top Customers”) and the ten largest suppliers of goods or services to the Target Companies (the “Top Suppliers”), along with the amounts of such dollar volumes. The relationships of each Target Company with such suppliers and customers are good commercial working relationships and (i) no Top Supplier or Top Customer within the last twelve (12) months has cancelled or otherwise terminated, or, to the Company’s Knowledge, intends to cancel or otherwise terminate, any material relationships of such Person with a Target Company, (ii) no Top Supplier or Top Customer has during the last twelve (12) months decreased materially or, to the Company’s Knowledge, threatened to stop, decrease or limit materially, or intends to modify materially its material relationships with a Target Company or intends to stop, decrease or limit materially its products or services to any Target Company or its usage or purchase of the products or services of any Target Company, (iii) to the Company’s Knowledge, no Top Supplier or Top Customer intends to refuse to pay any amount due to any Target Company or seek to exercise any remedy against any Target Company, (iv) no Target Company has within the past two (2) years been engaged in any material dispute with any Top Supplier or Top Customer, and (v) to the Company’s Knowledge, the consummation of the transactions contemplated in this Agreement and the Ancillary Documents will not adversely affect the relationship of any Target Company with any Top Supplier or Top Customer.
4.24 Certain Business Practices.
(a) No Target Company, nor any of their respective Affiliates, officers, directors or employees or, to the Knowledge of the Company, other Representatives acting on their behalf has (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other local or foreign anti-corruption or bribery Law, (iii) made any other unlawful payment, or (iv) directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder any Target Company or assist any Target Company in connection with any actual or proposed transaction.
(b) The operations of each Target Company are and have been conducted at all times in compliance in all material respects with money laundering Laws and statutes in all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority that has jurisdiction over any Target Company or its assets, properties or Equity Securities, and no Action involving a Target Company with respect to any of the foregoing is pending or, to the Knowledge of the Company, threatened.
(c) No Target Company or any of their respective directors or officers, or, to the Knowledge of the Company, any other Representative acting on behalf of a Target Company is currently identified on the specially designated nationals or other blocked person list or otherwise currently subject to any U.S. sanctions administered by OFAC, and no Target Company has, directly or indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in any country sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by OFAC, in each case, in the last five (5) fiscal years.
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4.25 Investment Company Act. No Target Company is an “investment company”, a Person directly or indirectly “controlled” by or acting on behalf of an “investment company”, or required to register as an “investment company”, in each case within the meaning of the Investment Company Act.
4.26 Finders and Brokers. Except as set forth in Schedule 4.26, no Target Company has incurred or will incur any Liability for any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby.
4.27 Independent Investigation. The Company has conducted its own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of SPAC, and acknowledges that it has been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of SPAC for such purpose. The Company acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, it has relied solely upon its own investigation and the express representations and warranties of SPAC set forth in this Agreement (including the related portions of SPAC Disclosure Schedules) and in any certificate delivered to the Company pursuant hereto and (b) neither SPAC nor any of its Representatives have made any representation or warranty as to SPAC or this Agreement, except as expressly set forth in this Agreement (including the related portions of the SPAC Disclosure Schedules) or in any certificate delivered to the Company pursuant hereto.
4.28 Information Supplied. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation by reference: (a) in any current report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority or stock exchange with respect to the transactions contemplated by this Agreement or any Ancillary Documents; (b) in the Registration Statement; or (c) in the mailings or other distributions to SPAC’s stockholders and/or prospective investors with respect to the consummation of the transactions contemplated by this Agreement or in any amendment to any of documents identified in (a) through (c), will, when filed, made available, mailed or distributed, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. None of the information supplied or to be supplied by the Company expressly for inclusion or incorporation by reference in any of the Signing Press Release, the Signing Filing, the Closing Press Release and the Closing Filing will, when filed or distributed, as applicable, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to any information supplied by or on behalf of SPAC or its Affiliates.
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4.29 No Other Representations. Except for the representations and warranties expressly made by the Company in this Article IV (as modified by the Company Disclosure Schedules) or as expressly set forth in an Ancillary Document, neither the Company nor any other Person on its behalf makes any express or implied representation or warranty with respect to any of the Target Companies or their respective business, operations, assets or Liabilities, or the transactions contemplated by this Agreement or any of the other Ancillary Documents, and the Company hereby expressly disclaims any other representations or warranties, whether implied or made by the Company or any of its Representatives. Except for the representations and warranties expressly made by the Company in this Article IV (as modified by the Company Disclosure Schedules) or in an Ancillary Document, the Company hereby expressly disclaims all liability and responsibility for any representation, warranty, projection, forecast, statement or information made, communicated or furnished (orally or in writing) to SPAC, Merger Sub or any of their respective Representatives (including any opinion, information, projection or advice that may have been or may be provided to SPAC, Merger Sub or any of their respective Representatives by any Representative of the Company), including any representations or warranties regarding the probable success or profitability of the businesses of the Target Companies.
Article
V
COVENANTS
5.1 Access and Information.
(a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 7.1 or the Closing (the “Interim Period”), subject to Section 5.15, the Company shall give, and shall cause its Representatives to give, SPAC and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to the Target Companies, as SPAC or its Representatives may reasonably request regarding the Target Companies and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (including a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions required by such accountants, if any)) and cause each of the Company’s Representatives to reasonably cooperate with SPAC and its Representatives in their investigation; provided, however, that SPAC and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Target Companies. Notwithstanding the foregoing, the Company shall not be required to provide to SPAC or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Laws to which the Company is subject, (B) result in a breach of any Contract between the Company and a third party, (C) violate any legally-binding obligation of the Company with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to the Company under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (D), the Company shall use reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Laws and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Laws), or (ii) if the Company, on the one hand, and SPAC or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that the Company shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis.
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(b) During the Interim Period, subject to Section 5.15, SPAC shall give, and shall cause its Representatives to give, the Company and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to SPAC or its Subsidiaries, as the Company or its Representatives may reasonably request regarding SPAC, its Subsidiaries and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (including a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions required by such accountants, if any)) and cause each of SPAC’s Representatives to reasonably cooperate with the Company and its Representatives in their investigation; provided, however, that the Company and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of SPAC or any of its Subsidiaries. Notwithstanding the foregoing, SPAC shall not be required to provide to the Company or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Laws to which SPAC is subject, (B) result in a breach of any Contract between SPAC and a third party, (C) violate any legally-binding obligation of SPAC with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to SPAC under the attorney-client privilege or the attorney work product doctrine (provided that, in case of each of clauses (A) through (D), SPAC shall use reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Laws and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Laws), or (ii) if SPAC, on the one hand, and the Company or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that SPAC shall, in the case of clause (i) or (ii), provide prompt written notice of the withholding of access or information on any such basis.
5.2 Conduct of Business of the Company.
(a) Unless SPAC shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except (i) as expressly contemplated by this Agreement or the Ancillary Documents, (ii) as required by applicable Law or (iii) as set forth on Schedule 5.2, the Company shall, and shall cause its Subsidiaries to, (A) conduct their respective businesses, in all material respects, in the ordinary course of business, (B) comply with all Laws applicable to the Target Companies and their respective businesses, assets and employees in all material respects, and (C) use commercially reasonable efforts to preserve intact, in all material respects, their respective business organizations, to keep available the services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets in the ordinary course of business.
(b) Without limiting the generality of Section 5.2(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents, as required by applicable Law, for the incurrence of Company Transaction Expenses or as set forth on Schedule 5.2, during the Interim Period, without the prior written consent of SPAC (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries to not:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents, except as required by applicable Law;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its Equity Securities or any Company Option or other options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its Equity Securities, or other securities, including any securities convertible into or exchangeable for any of its Equity Securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities, other than the issuance of Company Common Stock upon exercise of outstanding Company Option, and the grant of Company Options to new hires, or in connection with promotions, in the ordinary course of business;
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(iii) split, combine, recapitalize or reclassify any of its shares or other Equity Securities or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its Equity Securities (other than dividends or distributions, declared, set aside or paid by any of the Company’s Subsidiaries to the Company or any Subsidiary that is, directly or indirectly, wholly owned by the Company), or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its Equity Securities;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $500,000 individually or 500,000 in the aggregate, make a loan or advance to or investment in any third party (other than (A) intercompany loans or capital contributions between the Company and any of its wholly owned Subsidiaries and (B) reimbursement or advancement of expenses to employees in the ordinary course of business), or guarantee or endorse any Indebtedness, Liability or obligation of any Person in excess of 500,000 individually or $500,000 in the aggregate (excluding in each case, ordinary course trade payables);
(v) increase the wages, salaries, severance or compensation of its service providers other than in the ordinary course of business, and in any event (other than in the case of promotions in the ordinary course of business) not in the aggregate by more than ten percent (10%), or accelerate the vesting, lapsing of restrictions or payment or in any material way amend, modify or supplement the terms of any equity or equity based or phantom equity, or forgive any loans or issue any loans to service providers, or make or commit to make any bonus payment (whether in cash, property or securities) to any service provider, or materially increase other benefits of service providers generally, or enter into, establish, materially amend or terminate any Company Benefit Plan with, for or in respect of any current consultant, officer, manager director or employee, in each case other than as required by applicable Law, pursuant to the terms of any Company Benefit Plans as in effect on the date hereof, pursuant to any Employment Agreements or in the ordinary course of business;
(vi) make or rescind any material election relating to Taxes outside of the ordinary course of business, settle any Action relating to material Taxes, file any material amended Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedure outside of the ordinary course of business, in each case except as required by applicable Law or in compliance with GAAP;
(vii) transfer or license to any Person or otherwise extend, materially amend or modify, permit to lapse or fail to preserve any material Company Owned IP (excluding non-exclusive licenses of Company Owned IP to Target Company customers in the ordinary course of business), or disclose to any Person who has not entered into a confidentiality agreement any Trade Secrets;
(viii) terminate, or waive or assign any material right under, any Company Material Contract (excluding expirations of any Company Material Contracts in accordance with their terms in the Company’s reasonable business judgment) or enter into any Contract that would, if in effect as of the date hereof, have constituted a Company Material Contract (excluding non-exclusive licenses of Company Owned IP to Target Company customers, or Contracts that would be Company Material Contracts pursuant solely to clauses (ix), (x), (xii), (xvii) or (xviii) of Section 4.12(a)) in the ordinary course of business);
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business;
(x) establish any Subsidiary that is not directly or indirectly wholly owned by the Company or enter into any new line of business;
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(xi) fail to use commercially reasonable efforts to keep in force material insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xii) revalue any of its material assets or make any material change in any Target Company’s methods, principles or practices of accounting in any material respect, except to the extent required to comply with GAAP and after consulting with the Company’s outside auditors and other than changes that are made in accordance with PCAOB standards;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $150,000 (individually or in the aggregate);
(xiv) close or materially reduce its activities, or effect any material reduction in force, at any of its facilities (in each case in the context of the Company and its Subsidiaries taken as a whole);
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business;
(xvi) make capital expenditures in excess of $150,000 individually for any project (or set of related projects) or $500,000 in the aggregate, other than in the ordinary course of business;
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than, for the avoidance of doubt, the transactions expressly contemplated by this Agreement);
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $500,000 individually or $1,500,000 in the aggregate other than (i) pursuant to the terms of a Company Material Contract or other Contracts that are permitted hereunder or Company Benefit Plan or (ii) for Company Transaction Expenses;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its material properties, assets or rights, other than in the ordinary course of business;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of Equity Securities of the Company;
(xxi) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business); or
(xxii) authorize or agree to do any of the foregoing actions.
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(c) Notwithstanding anything in this Section 5.2 or this Agreement to the contrary, nothing set forth in this Agreement shall give SPAC, directly or indirectly, the right to control or direct the operations of the Target Companies prior to the Closing.
5.3 Conduct of Business of SPAC.
(a) Unless the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, except (i) as expressly contemplated by this Agreement or the Ancillary Documents, (ii) as required by applicable Law, (iii) for the incurrence of SPAC Expenses or (iv) as set forth on Schedule 5.3, SPAC shall, and shall cause its Subsidiaries to, (A) conduct their respective businesses, in all material respects, in the ordinary course of business, (B) comply with all Laws applicable to SPAC and its Subsidiaries and their respective businesses, assets and employees in all material respects, and (C) use commercially reasonable efforts to preserve intact, in all material respects, their respective business organizations, to keep available the services of their respective managers, directors, officers, employees and consultants, and to preserve the possession, control and condition of their respective material assets in the ordinary course of business. Notwithstanding anything to the contrary in this Section 5.3, nothing in this Agreement shall prohibit or restrict SPAC from extending, in accordance with SPAC’s Organizational Documents and the IPO Prospectus, the deadline by which it must complete its Business Combination (an “Extension”), including by way of an amendment to the SPAC Organizational Documents, or making any payments to the Trust Account in connection therewith, and no consent of any other Party shall be required in connection therewith. If the Completion Window (as defined in the SPAC Organizational Documents) would otherwise terminate before the Closing can be consummated, SPAC shall seek, and use its reasonable best efforts to obtain, an Extension from its shareholders in accordance with SPAC’s Organizational Documents and the IPO Prospectus, to a date that is no earlier than the then-applicable Outside Date (or such other date as agreed in writing by SPAC and the Company, such consent not to be unreasonably withheld, conditioned or delayed).
(b) Without limiting the generality of Section 5.3(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents (including the Domestication or as contemplated by a Transaction Financing), as required by applicable Law or for the incurrence of SPAC Expenses or as set forth on Schedule 5.3, during the Interim Period, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), SPAC shall not, and shall cause its Subsidiaries to not:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents except as required by applicable Law (other than in relation to an Extension, as described in Section 5.3(a));
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its Equity Securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its Equity Securities, or other securities, including any securities convertible into or exchangeable for any of its Equity Securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities;
(iii) split, combine, recapitalize or reclassify any of its shares or other Equity Securities or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its Equity Securities, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its Equity Securities (other than a conversion of SPAC Class B Ordinary Shares in accordance with the SPAC Organizational Documents or a conversion of SPAC Class B Common Stock in accordance with the Domestication Organizational Documents, as the case may be);
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(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise), make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person; provided, that this Section 5.3(b)(iv) shall not prevent SPAC from incurring loans from Sponsor or an Affiliate of Sponsor necessary to finance (A) its ordinary course administrative costs and expenses and Expenses incurred in connection with the consummation of the Merger and the other transactions contemplated by this Agreement (including the Transaction Financing) up to aggregate additional Indebtedness during the Interim Period of $1,500,000) and (B) the costs and expenses necessary, and consistent with current market practice, for an Extension (such expenses, “Extension Expenses”), in each case on the terms set forth on Schedule 5.3(b)(iv);
(v) enter into, incur, change, modify, amend or terminate any SPAC Affiliate Transactions;
(vi) make or rescind any material election relating to Taxes outside of the ordinary course of business, settle any Action relating to material Taxes, file any amended material Tax Return or claim for refund, or make any material change in its accounting or Tax policies or procedures outside of the ordinary course of business, in each case except as required by applicable Law or in compliance with GAAP;
(vii) amend, waive or otherwise change the Trust Agreement in any manner adverse to SPAC;
(viii) terminate, waive or assign any material right under any SPAC Material Contract;
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business;
(x) adopt any Benefit Plan (other than as contemplated by the Registration Statement);
(xi) establish any Subsidiary (other than a Subsidiary that is wholly owned, directly or indirectly, by SPAC) or enter into any new line of business;
(xii) fail to use commercially reasonable efforts to keep in force material insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xiii) revalue any of its material assets or make any material change in SPAC’s methods, principles or practices of accounting in any material respect, except to the extent required to comply with GAAP and after consulting SPAC’s outside auditors and other than changes that are required by PCAOB standards;
(xiv) waive, release, assign, settle or compromise any Action (including any Action relating to this Agreement or the transactions contemplated hereby), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, SPAC or its Subsidiary) not in excess of $500,000 (individually or in the aggregate);
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(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets;
(xvi) make any capital expenditures (excluding for the avoidance of doubt, incurring ordinary course administrative costs and expenses, Expenses and Extension Expenses);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than, for the avoidance of doubt, the transactions expressly contemplated by this Agreement, including the Merger);
(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $200,000 individually or $500,000 in the aggregate (excluding the incurrence of any Expenses or Indebtedness permitted by clause (iv) above) other than pursuant to the terms of a Contract in existence as of the date of this Agreement or entered into in the ordinary course of business in accordance with the terms of this Section 5.3 during the Interim Period;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its properties, assets or rights;
(xx) enter into any agreement, understanding or arrangement with respect to the voting of Equity Securities of SPAC; or
(xxi) authorize or agree to do any of the foregoing actions.
(d) Notwithstanding anything in this Section 5.3 or this Agreement to the contrary, but without limiting the terms of this Section 5.3, nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of SPAC.
5.4 Annual and Interim Financial Statements. During the Interim Period, within forty-five (45) calendar days following the end of each calendar month, each three-month quarterly period and each fiscal year, the Company shall deliver to SPAC an unaudited consolidated income statement and an unaudited consolidated balance sheet of the Target Companies for the period from the Interim Balance Sheet Date through the end of such calendar month, quarterly period or fiscal year and the applicable comparative period in the preceding fiscal year, in each case fairly presenting the consolidated financial position and results of operations of the Target Companies as of the date or for the periods indicated, in accordance with GAAP, subject to year-end audit adjustments and excluding footnotes. From the date hereof through the Closing Date, the Company will also promptly deliver to the SPAC copies of any audited consolidated financial statements of the Target Companies that the Target Companies’ certified public accountants may issue.
5.5 SPAC Public Filings. During the Interim Period, SPAC will keep current and timely file all of its public filings with the SEC and otherwise comply in all material respects with applicable securities Laws and shall use its commercially reasonable efforts prior to the Closing to maintain the listing of the SPAC Units, SPAC Class A Ordinary Shares and the SPAC Public Warrants on Nasdaq; provided that the Parties acknowledge and agree that from and after the Closing, the Parties intend to list on Nasdaq only the SPAC Common Stock and the SPAC Public Warrants. Prior to the Closing, SPAC shall apply for a mutually agreed upon new ticker symbol with Nasdaq that reflects the name “Fort Robotics Holdings, Inc.” If SPAC receives any written notice from Nasdaq that SPAC has failed, or will fail, to meet the Nasdaq listing requirements as of the Closing for any reason, then SPAC shall provide prompt written notice to the Company, including a copy of any written notice received from Nasdaq.
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5.6 No Solicitation.
(a) For purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal, from any Person or group at any time relating to an Alternative Transaction and (ii) an “Alternative Transaction” means (A) with respect to the Company and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning the sale of (x) all or any material part of the business or assets of the Target Companies (other than in the ordinary course of business) or (y) any of the shares or other equity interests or profits of the Target Companies, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets, merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise and (B) with respect to SPAC and its Affiliates, a transaction (other than the transactions contemplated by this Agreement) concerning a Business Combination involving SPAC.
(b) During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of the transactions contemplated hereby, each Party shall not, and shall cause its Representatives to not, without the prior written consent of the Company and SPAC, directly or indirectly, (i) solicit, assist, initiate or facilitate the making, submission or announcement of, or intentionally encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this Agreement or its Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal, (v) negotiate or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal, or (vi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party.
(c) Each Party shall notify the others as promptly as practicable (and in any event within 48 hours) in writing of the receipt by such Party or any of its Representatives of (i) any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any bona fide inquiries, proposals or offers, requests for information or requests for discussions or negotiations that could be expected to result in an Acquisition Proposal and (ii) any request for non-public information relating to such Party or its Affiliates in connection with any Acquisition Proposal, specifying in each case, the material terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if oral) and the identity of the party making such inquiry, proposal, offer or request for information. Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or requests for information with respect to any Acquisition Proposal. During the Interim Period, each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions or negotiations.
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(d) Notwithstanding anything to the contrary herein, nothing in this Section 5.6 shall limit SPAC’s, the Company’s and their respective Representatives’ ability to (A) have discussions with third parties and provide such third parties confidential information in connection with a Transaction Financing, in coordination with the other Party, and (B) with the consent of the other Party, negotiate or enter into a letter of intent, agreement in principle, term sheet or definitive agreement relating to any Transaction Financing to be consummated at Closing.
5.7 No Trading. The Company acknowledges and agrees that it is aware, and that the Company’s Affiliates are aware (and each of their respective Representatives is aware or, upon receipt of any material nonpublic information of SPAC, will be advised) of the restrictions imposed by U.S. federal securities laws and the rules and regulations of the SEC and Nasdaq promulgated thereunder or otherwise (the “Federal Securities Laws”) and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. The Company hereby agrees that, while it is in possession of such material nonpublic information, it shall not purchase or sell any securities of SPAC (other than to engage in the Merger in accordance with Article I), communicate such information to any third party, take any other action with respect to SPAC in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
5.8 Notification of Certain Matters. During the Interim Period, each Party shall give prompt written notice to the other Parties if such Party or its Affiliates: (a) fails to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it or its Affiliates hereunder in any material respect; (b) receives any notice or other communication in writing from any third party (including any Governmental Authority) alleging (i) that the Consent of such third party is or may be required in connection with the transactions contemplated by this Agreement or (ii) any non-compliance with any Law by such Party or its Affiliates; (c) receives any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; (d) discovers any fact or circumstance that, or becomes aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would reasonably be expected to cause or result in any of the conditions to the Closing set forth in Article VI not being satisfied or the satisfaction of those conditions being materially delayed; or (e) becomes aware of the commencement or threat, in writing, of any Action against such Party or any of its Affiliates, or any of their respective properties or assets, or, to the Knowledge of such Party, any officer, director, partner, member or manager, in his, her or its capacity as such, of such Party or of its Affiliates with respect to the consummation of the transactions contemplated by this Agreement. No such notice shall constitute an acknowledgement or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.
5.9 Efforts.
(a) Subject to the terms and conditions of this Agreement, each Party shall use its respective commercially reasonable efforts, and shall cooperate fully with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws and regulations to consummate the transactions contemplated by this Agreement as promptly as reasonably practicable (including the receipt of all applicable Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of Governmental Authorities applicable to the transactions contemplated by this Agreement.
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(b) In furtherance and not in limitation of Section 5.9(a), to the extent required under any Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade including the HSR Act (“Antitrust Laws”), each Party shall use its commercially reasonable efforts to, and to use its commercially reasonable efforts to cause its Affiliates to, make any required filing or application under Antitrust Laws, as applicable, at such Party’s sole cost and expense (subject to Section 7.3 with respect to Antitrust Expenses), with respect to the transactions contemplated hereby as promptly as practicable, to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under Antitrust Laws as soon as practicable, including by requesting early termination of the waiting period provided for under the Antitrust Laws. Without limiting the foregoing, each Party shall use their commercially reasonable efforts to make their respective filing pursuant to the HSR Act with respect to the transactions contemplated in this agreement within twenty (20) Business Days after the initial filing (or confidential submission) of the Registration Statement. Each Party shall, in connection with its efforts to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under any Antitrust Law, use its respective commercially reasonable efforts to: (i) cooperate in all respects with each other Party or its Affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private Person; (ii) keep the other Parties reasonably informed of any substantive communication received by such Party or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any substantive communication received or given in connection with any proceeding by a private Person, in each case regarding any of the transactions contemplated by this Agreement; (iii) permit a Representative of the other Parties and their respective outside counsel to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any proceeding by a private Person, with any other Person, and to the extent permitted by such Governmental Authority or other Person, give a Representative or Representatives of the other Parties the opportunity to attend and participate in such meetings and conferences; (iv) in the event a Party’s Representative is prohibited from participating in or attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably apprised with respect thereto; and (v) cooperate in the filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the transactions contemplated hereby, articulating any regulatory or competitive argument, and/or responding to requests or objections made by any Governmental Authority. Each Party shall, or shall cause their “ultimate parent entities” (as determined under the HSR Act) to use commercially reasonable efforts to respond as promptly as practicable to any inquiry or request received from any Governmental Authority in connection with antitrust or related matters. Each Party shall not extend any waiting period, review period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby or, except with the prior written consent of the other Party.
(c) The foregoing obligations in this Section 5.9 shall be subject to the provisions of Section 5.15. To the extent any of the documents or information provided pursuant to this Section 5.9 are commercially or competitively sensitive, SPAC and the Company may satisfy its obligations by providing such documents or information to the other Party’s outside counsel, who may agree to redaction of such materials as necessary to comply with contractual arrangements, and as necessary to address attorney-client or other privilege or confidentiality concerns.
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(d) As soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) their respective commercially reasonable efforts to prepare and file with Governmental Authorities requests for approval of the transactions contemplated by this Agreement and shall use all commercially reasonable efforts to have such Governmental Authorities approve the transactions contemplated by this Agreement. Each Party shall give prompt written notice to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection with the transactions contemplated by this Agreement, and shall promptly furnish the other Parties with a copy of such Governmental Authority notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the transactions contemplated hereby, whether prior to the Closing or after the Closing, each Party shall arrange for Representatives of such Party to be present for such hearing or meeting. If any objections are asserted with respect to the transactions contemplated by this Agreement under any applicable Law or if any Action is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging any of the transactions contemplated by this Agreement or any Ancillary Document as violative of any applicable Law or which would otherwise prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby, the Parties shall use their respective commercially reasonable efforts to resolve any such objections or Actions so as to timely permit consummation of the transactions contemplated by this Agreement and the Ancillary Documents, including in order to resolve such objections or Actions which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the transactions contemplated hereby or thereby. In the event any Action is instituted (or threatened to be instituted) by a Governmental Authority or private Person challenging the transactions contemplated by this Agreement, or any Ancillary Document, the Parties shall, and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective commercially reasonable efforts to contest and resist any such Action and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement or the Ancillary Documents.
(e) Prior to the Closing, each Party shall use its respective commercially reasonable efforts to obtain any Consents of Governmental Authorities or other third Persons as may be necessary for the consummation by such Party or its Affiliates of the transactions contemplated by this Agreement or required as a result of the execution or performance of, or consummation of the transactions contemplated by, this Agreement by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
5.10 Tax Matters.
(a) Each of the Parties shall use its reasonable best efforts to cause the Merger to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. None of the Parties shall (and each of the Parties shall cause their respective Subsidiaries not to) take any action, or fail to take any action, that could reasonably be expected to cause the Merger to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. The Parties intend to report and, except to the extent otherwise required by a “determination” within the meaning of Section 1313(a) of the Code, shall report, for federal income Tax purposes, the Merger as a “reorganization” within the meaning of Section 368(a) of the Code.
(b) Each Party will use its reasonable best efforts and will cooperate with one another to obtain, if requested or required by the SEC in connection with the filing of the Registration Statement, an opinion of Fenwick and West (“Company Tax Counsel”) regarding the qualification of the Mergers, taken together, as a “reorganization” within the meaning of Section 368(a) of the Code. In connection with the foregoing, and at such times as Company Tax Counsel shall reasonably request, (i) the Company shall deliver to Company Tax Counsel a duly executed officer’s certificate in form and substance reasonably satisfactory to Company Tax Counsel (the “Company Certificate”) and (ii) SPAC shall deliver to Company Tax Counsel a duly executed officer’s certificate in form and substance reasonably satisfactory to Company Tax Counsel (the “SPAC Certificate”). The Company and SPAC shall also provide such other information as reasonably requested by Company Tax Counsel for purposes of rendering such tax opinion. The Parties acknowledge that any such tax opinion will be subject to customary assumptions, exclusions and limitations, and Company Tax Counsel shall be entitled to rely on the Company Certificate and the SPAC Certificate for purposes of rendering such tax opinion.
5.11 Further Assurances. Subject to the terms and conditions herein provided, the Parties shall further cooperate with each other and use their respective commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on their part under this Agreement and applicable Laws to consummate and make effective the transactions contemplated by this Agreement (including by using their respective commercially reasonable efforts with respect to the satisfaction, but not waiver, of the closing conditions set forth in Article VI) and, in the case of any Ancillary Document to which such Party is contemplated hereby to be a party after the date of this Agreement, to execute and deliver such Ancillary Document when required pursuant to this Agreement as promptly as reasonably practicable, including preparing and filing as promptly as reasonably practicable all documentation to effect all reasonably necessary Consents.
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5.12 The Registration Statement.
(a) As promptly as practicable after the date hereof, SPAC and the Company shall prepare and file with the SEC a registration statement on Form S-4 (as amended or supplemented from time to time, and including the Proxy Statement contained therein, the “Registration Statement”) in connection with the registration under the Securities Act of (x) the shares of SPAC Common Stock to be issued under this Agreement as the Merger Consideration Shares and (y) the SPAC Securities deemed reissued in the Domestication, which Registration Statement will also contain a proxy statement (as amended, the “Proxy Statement”) for the purpose of soliciting proxies from SPAC shareholders for the matters to be voted upon at the SPAC Extraordinary General Meeting and providing the Public Shareholders an opportunity in accordance with SPAC’s Organizational Documents and the IPO Prospectus to have their SPAC Class A Ordinary Shares redeemed (the “Closing Redemption”) in connection with the shareholder vote on the SPAC Shareholder Approval Matters. The Proxy Statement shall include proxy materials for the purpose of soliciting proxies from SPAC shareholders to vote, at an extraordinary general meeting of SPAC shareholders to be called and held for such purpose (the “SPAC Extraordinary General Meeting”), in favor of resolutions approving (i) as an ordinary resolution, the adoption and approval of this Agreement and the transactions contemplated hereby or referred to herein, including the Merger and the Domestication, (ii) to the extent required by Nasdaq, SPAC’s Organizational Documents, the Companies Act or the DGCL, as an ordinary resolution, the issuance of any shares in connection with the Transaction Financing, including the approval of the issuance of more than twenty percent (20%) of the issued and outstanding SPAC Class A Ordinary Shares (or SPAC Common Stock after the Domestication), (iii) as a special resolution passed by the holders of the SPAC Class B Ordinary Shares (being those shareholders of the SPAC entitled to vote thereon), the approval of the Domestication, including the adoption of the Domestication Organizational Documents, (iv) as a special resolution, the change of name of “Newbury Street II Acquisition Corp” to “Fort Robotics Holdings, Inc. and the adoption and approval of the Amended SPAC Articles immediately prior to Closing, (v) as an ordinary resolution, the adoption and approval of a new equity incentive plan in form and substance to be reasonably agreed by SPAC and the Company acting in good faith (the “Incentive Plan”), which will provide for (x) awards for a number of shares of SPAC Common Stock (including those for the Assumed Options) equal to (A) 14.7% of the aggregate number of shares of SPAC Common Stock issued and outstanding immediately after the Closing (for the avoidance of doubt, after giving effect to the Closing Redemption) plus (B) the number of shares of SPAC Common Stock that are subject to the Assumed Options, and (y) an annual “evergreen” increase of five percent (5%) of the shares of SPAC Common Stock outstanding as of the day prior to such increase, (vi) as an ordinary resolution, the adoption and approval of an employee stock purchase plan, in a form and substance reasonably acceptable to SPAC and the Company acting in good faith (the “ESPP”), which will provide for (x) an initial share pool reserve of SPAC Common Stock equal to two percent (2%) of the aggregate number of shares of SPAC Common Stock issued and outstanding immediately after the Closing (for the avoidance of doubt, after giving effect to the Closing Redemption), and (y) an annual “evergreen” increase of one percent (1%) of the shares of SPAC Common Stock outstanding as of the day prior to such increase, (vii) as an ordinary resolution passed by the holders of the SPAC Class B Ordinary Shares (being those shareholders of the SPAC entitled to vote thereon), the appointment of the members of the Post-Closing SPAC Board in accordance with Section 5.16 hereof, (vii) as an ordinary resolution (or if required by applicable Law or the SPAC Organizational Documents, as a special resolution), such other matters as the Company and SPAC shall hereafter mutually determine to be necessary or appropriate in order to effect the Merger, the Domestication and the other transactions contemplated by this Agreement, (viii) as an ordinary resolution, the approval and adoption of the Insider Letter Amendment, effective upon the Closing, pursuant to which (x) up to 2,038,424 Founder Shares that are actually used to incentivize commitments for Transaction Financing shall be released from the transfer restrictions immediately upon the Closing and (y) an additional 118,196 Founder Shares shall be released from the transfer restrictions immediately upon the Closing (the “Insider Letter Amendment Proposal”) (the approvals described in foregoing clauses (i) through (viii), collectively, the “SPAC Shareholder Approval Matters”), and (ix) the adjournment of the SPAC Extraordinary General Meeting, if necessary or desirable in the reasonable determination of the chairman of the SPAC Extraordinary General Meeting, including for the solicitation of proxies hereunder in order to get sufficient votes hereunder. If on the date for which the SPAC Extraordinary General Meeting is scheduled, SPAC has not received proxies representing a sufficient number of shares to obtain the Required SPAC Shareholder Approval, SPAC may make one or more successive postponements or, with the consent of the SPAC Extraordinary General Meeting, adjournments of the SPAC Extraordinary General Meeting (each not to exceed ten days without the prior consent of the Company (such consent not to be unreasonably withheld, delayed or conditioned). In connection with the Registration Statement, SPAC and the Company will file with the SEC financial and other information about the transactions contemplated by this Agreement in accordance with applicable Law and applicable proxy solicitation and registration statement rules set forth in SPAC’s Organizational Documents, the Companies Act, the DGCL and the rules and regulations of the SEC and Nasdaq (or, if applicable, NYSE). SPAC and the Company each will advise the other, promptly after they receive notice thereof, of any supplement or amendment filed with respect to the Registration Statement or the Proxy Statement, of the suspension of the qualification of the SPAC Common Stock to be issued in connection with this Agreement for offering or sale in any jurisdiction or of any request by the SEC for amendment of the Registration Statement or the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information and responses thereto. Each of SPAC and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, delayed or conditioned), any response to comments of the SEC or its staff with respect thereto and any amendments filed in response thereto. The Company shall provide SPAC with such information concerning the Target Companies and their respective stockholders, officers, directors, employees, assets, Liabilities, condition (financial or otherwise), business and operations that may be required or appropriate for inclusion in the Registration Statement, or in any amendments or supplements thereto, which information provided by the Company in writing and specifically for inclusion in the Registration Statement shall be true and correct in all material respects and not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not materially misleading.
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(b) Each of SPAC and the Company shall take any and all reasonable and necessary actions required to satisfy the requirements of the Securities Act, the Exchange Act and other applicable Laws in connection with the Registration Statement, the SPAC Extraordinary General Meeting and the Closing Redemption. Each of SPAC and the Company shall, and shall use commercially reasonable efforts to make their respective directors, officers and employees, upon reasonable advance notice, available to the Company, SPAC and their respective Representatives in connection with the drafting of the public filings with respect to the transactions contemplated by this Agreement, including the Registration Statement, and responding in a timely manner to comments from the SEC. Each Party shall promptly correct any information provided by it for use in the Registration Statement (and other related materials) if and to the extent that such information is determined to have become false or misleading in any material respect or as otherwise required by applicable Laws. SPAC and the Company shall amend or supplement the Registration Statement and cause the Registration Statement, as so amended or supplemented, to be filed with the SEC and to be disseminated to SPAC shareholders, in each case as and to the extent required by applicable Laws and subject to the terms and conditions of this Agreement and SPAC’s Organizational Documents.
(c) SPAC and the Company, with the assistance of the other Parties, shall promptly respond to any SEC comments on the Registration Statement and shall otherwise use its commercially reasonable efforts to cause the Registration Statement to “clear” comments from the SEC and become effective. SPAC shall provide the Company with copies of any written comments, and shall inform the Company of any material oral comments, that SPAC or its Representatives receive from the SEC or its staff with respect to the Registration Statement, the SPAC Extraordinary General Meeting and the Closing Redemption promptly after the receipt of such comments and shall give the Company a reasonable opportunity under the circumstances to review and comment on any proposed written or material oral responses to such comments. SPAC will give reasonable and good faith consideration to any comments made by the Company and its counsel. As soon as practicable following the Registration Statement “clearing” comments from the SEC and becoming effective, SPAC shall distribute the Registration Statement to SPAC’s shareholders, and, pursuant thereto, shall call the SPAC Extraordinary General Meeting in accordance with SPAC’s Organizational Documents and the Companies Act for a date no later than thirty (30) days following the effectiveness of the Registration Statement. SPAC shall use its reasonable best efforts to obtain the approval of the SPAC Shareholder Approval Matters at the SPAC Extraordinary General Meeting, including as such SPAC Extraordinary General Meeting may be adjourned or postponed in accordance with the SPAC's Organizational Documents and this Agreement, including by soliciting proxies as promptly as practicable in accordance with applicable Law for the purpose of seeking the approval of the SPAC Shareholder Approval Matters. SPAC shall include the board of directors of SPAC’s recommendation to its shareholders that they approve and adopt this Agreement and the Ancillary Documents and the Transactions contemplated hereby and thereby, including the Domestication and the Merger in the Proxy Statement. The board of directors of SPAC shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the SPAC Board Recommendation for any reason , except as required by applicable Laws. SPAC agrees that its obligation to establish a record date for, duly call, give notice of, convene and hold the SPAC Extraordinary General Meeting for the purpose of seeking approval of the SPAC Shareholder Approval Matters shall not be affected by any intervening event or circumstance, and SPAC agrees to establish a record date for, duly call, give notice of, convene and hold the SPAC Extraordinary General Meeting and submit for the approval of its shareholders the SPAC Shareholder Approval Matters, in each case in accordance with this Agreement, regardless of any intervening event or circumstance. SPAC shall comply with all applicable Laws, any applicable rules and regulations of Nasdaq, SPAC’s Organizational Documents and this Agreement in the preparation, filing and distribution of the Registration Statement, any solicitation of proxies thereunder, the calling and holding of the SPAC Extraordinary General Meeting and effecting the Closing Redemption.
(d) Each Party shall make all necessary filings to obtain necessary approvals with respect to the Transactions under the Securities Act, the Exchange Act and applicable “blue sky” laws, and any rules and regulations thereunder.
5.13 Company Stockholder Meeting. As promptly as practicable after the Registration Statement has become effective, the Company will by resolutions duly adopted at a meeting of its stockholders duly called and held (the “Company Special Meeting”) or by unanimous written consent in accordance with the Company’s Organizational Documents, use its reasonable best efforts to obtain the Required Company Stockholder Approval, and if the Company Special Meeting is to be held, the Company shall use its reasonable best efforts to solicit from the Company Stockholders proxies in favor of the Required Company Stockholder Approval prior to such Company Special Meeting, and to take all other actions necessary or advisable to secure the Required Company Stockholder Approval, including enforcing the Voting Agreements.
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5.14 Public Announcements.
(a) The Parties agree that during the Interim Period no public release, filing or announcement concerning this Agreement or the Ancillary Documents or the transactions contemplated hereby or thereby shall be issued by any Party or any of their respective Affiliates without the prior written consent of SPAC and the Company (which consent shall not be unreasonably withheld, conditioned or delayed), except as such release or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case the applicable Party shall use commercially reasonable efforts to allow the other Parties reasonable time to comment on, and arrange for any required filing with respect to, such release or announcement in advance of such issuance.
(b) The Parties shall mutually agree upon and, as promptly as practicable after the execution of this Agreement (but in any event within four (4) Business Days thereafter), issue a press release announcing the execution of this Agreement (the “Signing Press Release”). Promptly after the issuance of the Signing Press Release, SPAC shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by Federal Securities Laws, which the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing (with the Company reviewing, commenting upon and approving such Signing Filing in any event no later than the third (3rd) Business Day after the execution of this Agreement). The Parties shall mutually agree upon and, as promptly as practicable after the Closing (but in any event within four (4) Business Days thereafter), issue a press release announcing the consummation of the transactions contemplated by this Agreement (the “Closing Press Release”). Promptly after the issuance of the Closing Press Release, SPAC shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by Federal Securities Laws which Sponsor shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Filing, the Closing Press Release, or any other report, statement, filing notice or application made by or on behalf of a Party to any Governmental Authority or other third party in connection with the transactions contemplated hereby, each Party shall, upon request by any other Party, furnish the other Parties with all information concerning themselves, their respective directors, officers and equity holders, and such other matters as may be reasonably necessary or advisable in connection with the transactions contemplated hereby, or any other report, statement, filing, notice or application made by or on behalf of a Party to any third party and/ or any Governmental Authority in connection with the transactions contemplated hereby.
5.15 Confidential Information.
(a) The Company hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article VII, for a period of two (2) years after such termination, it shall, and shall cause its Representatives to: (i) treat and hold in strict confidence any SPAC Confidential Information, and will not use for any purpose (except in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, performing their obligations hereunder or thereunder, enforcing their rights hereunder or thereunder, or in furtherance of their authorized duties on behalf of SPAC or its Subsidiaries), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the SPAC Confidential Information without SPAC’s prior written consent; and (ii) in the event that the Company or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article VII, for a period of two (2) years after such termination, becomes legally compelled to disclose any SPAC Confidential Information, (A) provide SPAC to the extent legally permitted with prompt written notice of such requirement so that SPAC or an Affiliate thereof may seek, at SPAC’s sole expense, a protective Order or other remedy or waive compliance with this Section 5.15(a), and (B) in the event that such protective Order or other remedy is not obtained, or SPAC waives compliance with this Section 5.15(a), furnish only that portion of such SPAC Confidential Information which is legally required to be provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such SPAC Confidential Information. In the event that this Agreement is terminated and the transactions contemplated hereby are not consummated, the Company shall, and shall cause its Representatives to, promptly deliver to SPAC or destroy (at SPAC’s election) any and all copies (in whatever form or medium) of SPAC Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that the Company and its Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention policies; provided, further, that any SPAC Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement.
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(b) SPAC hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article VII, for a period of two (2) years after such termination, it shall, and shall cause its Representatives to: (i) treat and hold in strict confidence any Company Confidential Information, and will not use for any purpose (except in connection with the consummation of the transactions contemplated by this Agreement or the Ancillary Documents, performing its obligations hereunder or thereunder or enforcing its rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Company Confidential Information without the Company’s prior written consent; and (ii) in the event that SPAC or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article VII, for a period of two (2) years after such termination, becomes legally compelled to disclose any Company Confidential Information, (A) provide the Company to the extent legally permitted with prompt written notice of such requirement so that the Company or an Affiliate thereof may seek, at the Company’s sole expense, a protective Order or other remedy or waive compliance with this Section 5.15(b) and (B) in the event that such protective Order or other remedy is not obtained, or the Company waives compliance with this Section 5.15(b), furnish only that portion of such Company Confidential Information which is legally required to be provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Company Confidential Information. In the event that this Agreement is terminated and the transactions contemplated hereby are not consummated, SPAC shall, and shall cause its Representatives to, promptly deliver to the Company or destroy (at SPAC’s election) any and all copies (in whatever form or medium) of Company Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that SPAC and its Representatives shall be entitled to keep any records required by applicable Law or bona fide record retention policies; provided, further, that any Company Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement. Notwithstanding the foregoing, SPAC and its Representatives shall be permitted to disclose any and all Company Confidential Information to the extent required by the Federal Securities Laws.
5.16 Post-Closing Board of Directors and Executive Officers.
(a) The Parties shall take all necessary action, including causing the directors of SPAC to resign, so that effective as of the Closing, the SPAC’s board of directors (the “Post-Closing SPAC Board”) will consist of at least five individuals, but not more than seven individuals, with such number of individuals to be mutually agreed upon by SPAC and the Company. Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing SPAC Board, including (i) two persons designated by the SPAC prior to the Closing (the “SPAC Directors”), at least one of whom shall qualify as independent directors under Nasdaq (or, if applicable, NYSE) rules, (ii) three persons that are designated by the Company prior to the Closing (the “Company Directors”), at least two of whom shall be required to qualify as an independent director under Nasdaq (or, if applicable, NYSE) rules and (iii) up to an additional two persons as mutually agreed upon by SPAC and the Company. The Post-Closing SPAC Board will serve staggered terms divided into three classes, Class I, Class II and Class III, with members of each class serving staggered three (3)-year terms. The term of the initial Class I members of the Post-Closing SPAC Board shall expire at the first annual meeting of the stockholders of SPAC following the Closing, the term of the initial Class II members of the Post-Closing SPAC Board shall expire at the second annual meeting of the stockholders of SPAC following the Closing and the term of the initial Class III member of the Post-Closing SPAC Board shall expire at the third annual meeting of the stockholders of SPAC following Closing. The SPAC Directors shall serve as initial Class III directors. At or prior to the Closing, the SPAC will provide each member of the Post-Closing SPAC Board with a customary director indemnification agreement, in form and substance reasonably acceptable to each member of the Post-Closing SPAC Board.
(b) The Parties shall take all action necessary, including causing the executive officers of SPAC to resign, so that the individuals serving as Chief Executive Officer, Chief Technology Officer and Chief Financial Officer, respectively, of SPAC immediately after the Closing will be the same individuals (in the same office) as that of the Company immediately prior to the Closing.
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5.17 Indemnification of Directors and Officers; Tail Insurance.
(a) The Parties agree that all rights to exculpation, indemnification and advancement of expenses existing in favor of the current or former directors and officers of SPAC, Merger Sub or any Target Company and each Person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request of SPAC, Merger Sub or such Target Company (the “D&O Indemnified Persons”) as provided in their respective Organizational Documents or under any indemnification, employment or other similar agreements between any D&O Indemnified Person and SPAC, Merger Sub or such Target Company, in each case as in effect on the date of this Agreement, shall survive the Closing and continue in full force and effect in accordance with their respective terms to the extent permitted by applicable Law. For a period of six (6) years after the Effective Time, SPAC shall cause the Organizational Documents of SPAC and the Surviving Corporation to contain provisions no less favorable with respect to exculpation and indemnification of and advancement of expenses to D&O Indemnified Persons than are set forth as of the date of this Agreement in the Organizational Documents of SPAC, Merger Sub and the Target Companies to the extent permitted by applicable Law. The provisions of this Section 5.17 shall survive the consummation of the Merger and are intended to be for the benefit of, and shall be enforceable by, each of the D&O Indemnified Persons and their respective heirs and representatives.
(b) For the benefit of SPAC’s and Merger Sub’s directors and officers, SPAC shall be permitted prior to the Effective Time to obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six (6) year period from and after the Effective Time for events occurring prior to the Effective Time (the “SPAC D&O Tail Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than SPAC’s existing policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage. If obtained, SPAC shall maintain the SPAC D&O Tail Insurance in full force and effect, and continue to honor the obligations thereunder, and SPAC shall timely pay or cause to be paid all premiums with respect to the SPAC D&O Tail Insurance.
(c) For the benefit of the Target Companies' directors and officers, SPAC shall be permitted prior to the Effective Time to obtain and fully pay the premium for a “tail” insurance policy that provides coverage for up to a six (6) year period from and after the Effective Time for events occurring prior to the Effective Time (the "Company D&O Tail Insurance") that is substantially equivalent to and in any event not less favorable in the aggregate than the Target Companies' existing policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage. If obtained, SPAC shall maintain the Company D&O Tail Insurance in full force and effect, and continue to honor the obligations thereunder, and SPAC shall timely pay or cause to be paid all premiums with respect to the Company D&O Tail Insurance.
5.18 Trust Account Proceeds. The Parties agree that, at the Closing:
(a) SPAC shall cause the documents, certificates and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and
(b) the funds in the Trust Account (after taking into account payments for the Closing Redemption) and any proceeds received by SPAC from a Transaction Financing shall be used to pay (i) first, the amounts due to the IPO Underwriter for their deferred underwriting commissions, the amounts due in respect of SPAC Expenses and Company Transaction Expenses, (ii) second, any loans owed by SPAC to the Sponsor or an Affiliate of Sponsor for any Expenses (including deferred Expenses) or Extension Expenses (including loans entered into pursuant to Section 5.3(b)(iv)), (iv) third, any other Liabilities owed by SPAC as of the Closing and (v) fourth, immediately thereafter pay all remaining amounts then available in the Trust Account to SPAC in accordance with the Trust Agreement, which amounts (along with the Transaction Financing) will be used for working capital and general corporate purposes of SPAC and the Surviving Corporation.
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5.19 Transaction Financing.
(a) Without limiting anything to the contrary contained herein, during the Interim Period, SPAC, may enter into financing agreements (any such agreements, the “Additional Transaction Financing Agreements” and, together with the Initial PIPE Subscription Agreements, the “Financing Agreements”) with potential investors (whether structured as a private placement of common equity, convertible preferred equity, convertible debt or other securities convertible into or that have the right to acquire common equity, as Trust Account non-redemption or backstop arrangements or otherwise), in each case with the prior consent of the Company and on terms mutually agreeable to the Company and SPAC, acting reasonably (an “Additional Transaction Financing”, together with the Initial PIPE Financing, a “Transaction Financing”) and, if SPAC and the Company jointly elect to seek an Additional Transaction Financing, SPAC and the Company shall, and shall cause their respective Representatives to, cooperate with each other and their respective Representatives in connection with such Additional Transaction Financing, and use their respective commercially reasonable efforts to cause such Additional Transaction Financing, to occur (including having the Company’s senior management participate in a reasonable number of investor meetings and roadshows as reasonably requested by SPAC).
(b) SPAC and the Company shall, and shall cause their respective Representatives to, reasonably cooperate with the others in connection with such Financing Agreements (including having the Company’s senior management participate in a reasonable number of investor meetings and roadshows as reasonably requested by SPAC). Except to the extent permitted pursuant to the terms of the Financing Agreements or otherwise approved in writing by the Company and SPAC (each of which approval shall not be unreasonably withheld, conditioned or delayed), and except for any of the following actions that would not materially increase conditionality or impose any new material obligation on the Company or SPAC, during the Interim Period SPAC and the Company shall not (i) reduce the committed investment amount to be received by SPAC or the Company under any Financing Agreement or reduce or impair the rights of SPAC or the Company under any Financing Agreement or (ii) permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any replacements of, any of the Financing Agreements, in each case, other than any assignment or transfer contemplated therein or expressly permitted thereby (without any further amendment, modification or waiver to such assignment or transfer provision). SPAC and the Company shall use their commercially reasonable efforts to consummate the Transaction Financing in accordance with the Financing Agreements.
(c) Without limiting anything to the contrary contained herein, during the Interim Period, the Company may from time to time, enter into Simple Agreements for Future Equity (any such agreements, the “Permitted Company SAFEs”) in compliance with Schedule 5.19(c).
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5.20 Incentive Plan. SPAC and the Company shall cooperate (including working with a mutually agreed upon compensation consultant) and use their commercially reasonable efforts to agree, prior to the Closing, to the Incentive Plan.
5.21 Section 16. Matters. Prior to the Effective Time, SPAC shall take all commercially reasonable steps as may be required (to the extent permitted under applicable Law) to cause any acquisition or disposition of the SPAC Common Stock or any derivative thereof that occurs or is deemed to occur by reason of or pursuant to the Transactions by each Person who is or will be or may be subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to SPAC to be exempt under Rule 16b-3 promulgated under the Exchange Act, including by taking steps in accordance with the No-Action Letter, dated January 12, 1999, issued by the SEC regarding such matters.
5.22 Qualification as an Emerging Growth Company. SPAC shall, at all times during the period from the date hereof until the Closing: (a) take all actions necessary to continue to qualify as an “emerging growth company” within the meaning of the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”); and (b) not take any action that would cause SPAC to not qualify as an “emerging growth company” within the meaning of the JOBS Act.
Article
VI
CLOSING CONDITIONS
6.1 Conditions to Each Party’s Obligations. The obligations of each Party to consummate the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or written waiver (where permissible by applicable Law) by the Company and SPAC of the following conditions:
(a) Required SPAC Shareholder Approval. SPAC Shareholder Approval Matters that are submitted to the vote of the shareholders of SPAC at the SPAC Extraordinary General Meeting in accordance with the Proxy Statement shall have been approved by the requisite vote of the shareholders of SPAC at the SPAC Extraordinary General Meeting in accordance with SPAC’s Organizational Documents, applicable Law and the Proxy Statement (the “Required SPAC Shareholder Approval”).
(b) Required Company Stockholder Approval. As promptly as practicable after the Registration Statement has been declared effective, the requisite vote of the Company Stockholders (including any separate class or series vote that is required, whether pursuant to the Company’s Organizational Documents, any stockholder agreement or otherwise), by resolutions duly adopted at the Company Special Meeting or by unanimous written consent in accordance with the Company’s Organizational Documents, shall have authorized, approved and consented to, the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which the Company is or is required to be a party or bound, and the consummation of the Transactions, including the Merger and the Domestication (the “Required Company Stockholder Approval”).
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(c) Antitrust Laws. Each applicable waiting period (and any extension thereof) relating to the transactions contemplated by this Agreement under the HSR Act shall have expired, been terminated or obtained (or deemed, by applicable Law, to have been obtained), as applicable.
(d) Requisite Regulatory Approvals. All Consents required to be obtained from or made with any Governmental Authority set forth on Schedule 6.1(d) in order to consummate the transactions contemplated by this Agreement shall have been obtained or made.
(e) No Adverse Law or Order. No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced, adopted or entered any Law (whether temporary, preliminary or permanent) or Order that is then in effect and which has the effect of making the transactions or agreements contemplated by this Agreement illegal or which otherwise prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(f) SPAC Domestication. The Domestication shall have been consummated in accordance with Section 1.8.
(g) Registration Statement. The Registration Statement shall have been declared effective by the SEC in accordance with the provisions of the Securities Act and shall remain effective as of the Closing, and no stop order or similar order shall be in effect with respect to the Registration Statement.
(h) Stock Exchange Listing. The shares of SPAC Common Stock to be issued in connection with the Transactions shall have been conditionally approved for listing on Nasdaq or NYSE, subject to official notice of issuance.
6.2 Conditions to Obligations of the Company. In addition to the conditions specified in Section 6.1, the obligations of the Company to consummate the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or written waiver (where permissible by applicable Law) by the Company of the following conditions:
(a) Representations and Warranties. (i) the SPAC Fundamental Representations shall be true and correct in all material respects on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties set forth in the first sentence of Section 3.5(a) shall be true and correct in all respects (except for de minimis inaccuracies) on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects (except for de minimis inaccuracies) as of such earlier date) and (iii) the other representations and warranties of the SPAC in Article III (other than the SPAC Fundamental Representations and the representations and warranties set forth in the first sentence of Section 3.5(a)) shall be true and correct (without giving effect to any limitations as to “materiality” or any similar limitation set forth herein) in all respects on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, SPAC.
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(b) Agreements and Covenants. SPAC shall have performed and complied in all material respects with all of SPAC’s agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.
(c) No Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to SPAC since the date of this Agreement which is continuing and uncured.
(d) Closing Deliveries.
(i) Officer Certificate. SPAC shall have delivered to the Company a certificate, dated as of the Closing Date, duly executed by an authorized executive officer of SPAC in such capacity, certifying as to the satisfaction of the conditions specified in Sections 6.2(a), 6.2(b) and 6.2(c).
(ii) Secretary Certificate. SPAC shall have delivered to the Company a certificate from an executive officer or director certifying as to, and attaching, (A) copies of SPAC’s Organizational Documents as in effect as of the Closing Date (after giving effect to the Domestication and the adoption of the Amended SPAC Articles), (B) the resolutions of SPAC’s board of directors authorizing and approving the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation of the Transactions, (C) evidence that the Required SPAC Shareholder Approval has been obtained and (D) the incumbency of officers or directors authorized to execute this Agreement or any Ancillary Document to which SPAC is or is required to be a party or otherwise bound.
(iii) Good Standing. SPAC shall have delivered to the Company a good standing certificate (or similar documents applicable for such jurisdictions) for SPAC certified as of a date no earlier than thirty (30) days prior to the Closing Date from the proper Governmental Authority of SPAC’s jurisdiction of incorporation and from each other jurisdiction in which SPAC is qualified to do business as a foreign entity as of the Closing, in each case to the extent that good standing certificates or similar documents are generally available in such jurisdictions.
(iv) Director and Officer Resignations. The directors and officers of SPAC and Merger Sub shall have delivered to the Company duly signed letters of resignation effective as of and subject to the Closing.
(v) Other Ancillary Documents. As of the Closing, SPAC, and Merger Sub shall have duly signed and delivered to the Company each of the Ancillary Documents required hereunder to be signed and delivered by such Party to the Company at the Closing.
6.3 Conditions to Obligations of SPAC. In addition to the conditions specified in Section 6.1, the obligations of SPAC and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement are subject to the satisfaction or written waiver (where permissible by applicable Law) by SPAC of the following conditions:
(a) Representations and Warranties. (i) the Company Fundamental Representations shall be true and correct (without giving effect to any limitation as to “materiality” set forth therein) in all material respects on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date), (ii) the representations and warranties set forth in the first sentence of Section 4.3(a) shall be true and correct in all respects on and as of the date of this Agreement and as of the Closing Date, as though made on and as of the Closing Date, and (iii) the representations and warranties of the Company set forth in Article IV (other than the Company Fundamental Representations and the representations and warranties set forth in the first sentence of Section 4.3(a)) shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” or any similar limitation set forth herein) in all respects on and as of the date of this Agreement and on and as of the Closing Date, as though made on and as of the Closing Date (except to the extent that any such representation and warranty is expressly made as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate has not had and would not reasonably be expected to have a Material Adverse Effect on, or with respect to, the Target Companies.
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(b) Agreements and Covenants. The Company shall have performed and complied in all material respects with all of its agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.
(c) No Material Adverse Effect. No Material Adverse Effect shall have occurred with respect to the Target Companies taken as a whole since the date of this Agreement which is continuing and uncured.
(d) Certain Ancillary Documents. Each Lock-Up Agreement and the Employment Agreements and Non-Competition Agreements set forth on Schedule 6.3(d) shall be in full force and effect in accordance with the terms thereof as of the Closing.
(e) Closing Deliveries.
(i) Officer Certificate. SPAC shall have received a certificate from the Company, dated as the Closing Date, signed by an executive officer of the Company in such capacity, certifying as to the satisfaction of the conditions specified in Sections 6.3(a), 6.3(b) and 6.3(c).
(ii) Secretary Certificate. The Company shall have delivered to SPAC a certificate executed by the Company’s secretary certifying as to the validity and effectiveness of, and attaching, (A) copies of the Company’s Organizational Documents as in effect as of the Closing Date (immediately prior to the Effective Time), (B) the requisite resolutions of the Company’s board of directors authorizing and approving the execution, delivery and performance of this Agreement and each Ancillary Document to which the Company is or is required to be a party or bound, and the consummation of the Merger and the other transactions contemplated hereby and thereby, and the adoption of the Surviving Corporation Organizational Documents, and recommending the approval and adoption of the same by the Company Stockholders at a duly called meeting of stockholders, (C) evidence that the Required Company Stockholder Approval has been obtained and (D) the incumbency of officers of the Company authorized to execute this Agreement or any Ancillary Document to which the Company is or is required to be a party or otherwise bound.
(iii) Good Standing. The Company shall have delivered to SPAC good standing certificates (or similar documents applicable for such jurisdictions) for each Target Company certified as of a date no earlier than thirty (30) days prior to the Closing Date from the proper Governmental Authority of the Target Company’s jurisdiction of organization and from each other jurisdiction in which the Target Company is qualified to do business as a foreign corporation or other entity as of the Closing, in each case to the extent that good standing certificates or similar documents are generally available in such jurisdictions.
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(iv) Certified Charter. The Company shall have delivered to SPAC a copy of the Company Charter, as in effect as of immediately prior to the Effective Time, certified by the Secretary of State of the State of Delaware as of a date no more than ten (10) Business Days prior to the Closing Date.
(v) Company Convertible Securities. SPAC shall have received evidence reasonably acceptable to SPAC that the Company shall have terminated, extinguished and cancelled in full any outstanding Company Convertible Securities (other than Company Options or the Stifel Warrant) or commitments therefor, or that such Company Convertible Securities (other than Company Options or Stifel Warrant) or commitments will be terminated, extinguished and cancelled in full as of immediately prior to and contingent upon the Closing, pursuant to their terms or otherwise.
(vi) Termination of Certain Contracts. SPAC shall have received evidence reasonably acceptable to SPAC that the Contracts involving the Target Companies and/or Company Security Holders or other Related Persons set forth on Schedule 6.3(e)(vi) shall have been terminated with no further obligation or Liability of the Target Companies thereunder.
(vii) Other Ancillary Documents. As of the Closing, the Company shall have duly signed and delivered to SPAC each of the Ancillary Documents required hereunder to be signed and delivered by such Party at the Closing.
6.4 Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article VI to be satisfied if such failure was caused by the failure of such Party or its Affiliates (or with respect to the Company, any Target Company or Company Stockholder) failure to comply with or perform any of its covenants or obligations set forth in this Agreement.
Article
VII
TERMINATION AND EXPENSES
7.1 Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing as follows:
(a) by mutual written consent of SPAC and the Company;
(b) by written notice by either SPAC or the Company to the other party hereunder, if any of the conditions to the Closing set forth in Article VI have not been satisfied or waived by May 17, 2027 (the “Outside Date”); provided, that if SPAC seeks and receives an Extension, SPAC and the Company shall each have the right by providing written notice thereof to extend the Outside Date by an additional period equal to the shortest of (A) three additional months, (B) the period ending on the last day by which SPAC must consummate its initial Business Combination pursuant to such Extension and (C) such period as mutually agreed by SPAC and the Company; provided, further, however, such Outside Date may be extended by written agreement by SPAC and the Company; provided further, however, the right to terminate this Agreement under this Section 7.1(b) shall not be available to a Party if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement shall have caused or resulted in (either individually or when taken together with other such breaches by such persons) the failure of the Closing to occur on or before the Outside Date;
(c) by written notice by either SPAC or the Company to the other party hereunder, if a Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement, and such Order or other action has become final and non-appealable or if there shall be adopted any Law that permanently makes the consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited;
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(d) by written notice by the Company to SPAC, if (i) there has been a breach by SPAC of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of SPAC shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 6.2(a) or Section 6.2(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided to SPAC or (B) the Outside Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(d) if at such time the Company is in breach of this Agreement so as to prevent the conditions to Closing set forth in either Section 6.3(a) or Section 6.3(b) from being satisfied;
(e) by written notice by SPAC to the Company, if (i) there has been a breach by the Company of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 6.3(a) or Section 6.3(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided to the Company or (B) the Outside Date; provided, that SPAC shall not have the right to terminate this Agreement pursuant to this Section 7.1(e) if at such time SPAC is in breach of this Agreement so as to prevent the conditions to Closing set forth in either Section 6.2(a) or Section 6.2(b) from being satisfied;
(f) by written notice by SPAC to the Company, if there shall have been a Material Adverse Effect on the Target Companies, taken as a whole, following the date of this Agreement which is uncured and continuing;
(g) by written notice by either SPAC or the Company to the other, if SPAC Extraordinary General Meeting has been held (including following any adjournment or postponement thereof) and has concluded, SPAC’s shareholders have duly voted, and the Required SPAC Shareholder Approval was not obtained; or
(h) by written notice by either SPAC or the Company to the other, if the Company Special Meeting has been held (including following any adjournment or postponement thereof) and has concluded, the Company Stockholders have duly voted, and the Required Company Stockholder Approval was not obtained.
7.2 Effect of Termination. This Agreement may only be terminated in the circumstances described in Section 7.1 and pursuant to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination, including the provision of Section 7.1 under which such termination is made. In the event of the valid termination of this Agreement pursuant to Section 7.1, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party or any of their respective Representatives, and all rights and obligations of each Party shall cease, except: (i) Sections 5.14, 5.15, 7.3, 8.1, Article IX and this Section 7.2 shall survive the termination of this Agreement, and (ii) nothing herein shall relieve any Party from Liability for any Willful Breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (i) and (ii) above, subject to Section 8.1). Without limiting and subject to the foregoing, and except as provided in Sections 7.3 and this Section 7.2 (but subject to Section 8.1) and subject to the right to seek injunctions, specific performance or other equitable relief in accordance with Section 9.8, the Parties’ sole right prior to the Closing with respect to any breach of any representation, warranty, covenant or other agreement contained in this Agreement by another Party or with respect to the transactions contemplated by this Agreement shall be the right, if applicable, to terminate this Agreement pursuant to Section 7.1.
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7.3 Fees and Expenses. Subject to Section 8.1, any and all Expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such expenses. As used in this Agreement, “Expenses” shall include all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, financial advisors, financing sources, experts and consultants to a Party hereto or any of its Affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution or performance of this Agreement or any Ancillary Document related hereto and all other matters related to the consummation of this Agreement. With respect to SPAC’s Expenses (the “SPAC Expenses”), Expenses shall include any and all deferred expenses (including fees or commissions payable to the underwriters and any legal fees) of the IPO upon consummation of a Business Combination. Notwithstanding the foregoing, each of SPAC and the Company shall be responsible for fifty percent (50%) of (i) the fees and expenses relating to any pre-merger notification required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“Antitrust Expenses”), (ii) all filing fees and expenses under U.S. securities laws relating to the preparation, printing, mailing and filing of the Registration Statement and/or Proxy Statement (“SEC Filing Fee Expenses”) and (iii) all filing fees and expenses paid to Nasdaq or NYSE relating to SPAC’s initial listing application in connection with the Transactions.
Article
VIII
TRUST WAIVER
8.1 Waiver of Claims Against Trust. Reference is made to the IPO Prospectus. The Company hereby represents and warrants that it has read the IPO Prospectus and understands that SPAC has established the Trust Account containing the proceeds of the IPO and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of SPAC’s public shareholders (the “Public Shareholders”) and that, except as otherwise described in the IPO Prospectus and the SPAC’s Organizational Documents, SPAC may disburse monies from the Trust Account only: (a) to the Public Shareholders in the event they elect to redeem their SPAC Class A Ordinary Shares in connection with the consummation of its initial business combination (as such term is used in the SPAC’s Organizational Documents) (“Business Combination”) or in connection with an amendment to the SPAC’s Organizational Documents (i) to modify the substance or timing of SPAC’s obligations to allow redemption in connection with a Business Combination or to redeem 100% of the Class A Ordinary Shares if the SPAC has not consummated a Business Combination within twenty-four (24) months after the closing of the IPO; or (ii) with respect to any other material provisions relating to (x) the rights of holders of SPAC Class A Ordinary Shares; or (y) pre-initial Business Combination activity upon the effectiveness of any such amendment; (b) to the Public Shareholders if SPAC fails to consummate a Business Combination within twenty-four (24) months after the closing of the IPO, and subject to extension by amendment to SPAC’s Organizational Documents, (c) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay for any taxes and up to $100,000 in dissolution expenses, and (d) to SPAC after or concurrently with the consummation of a Business Combination. For and in consideration of SPAC entering into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company hereby agrees on behalf of itself and its Affiliates that, notwithstanding anything to the contrary in this Agreement, neither the Company nor any of its Affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom to holders of SPAC Class A Ordinary Shares, or make any claim against the Trust Account (including any distributions therefrom to holders of SPAC Class A Ordinary Shares), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the “Released Claims”). The Company on behalf of itself and its Affiliates hereby irrevocably waives any Released Claims that the Company or any of its Affiliates may have against the Trust Account (including any distributions therefrom to holders of SPAC Class A Ordinary Shares) now or in the future and will not seek recourse against the Trust Account (including any distributions therefrom to holders of SPAC Class A Ordinary Shares) for any reason whatsoever (including for an alleged breach of this Agreement or any other agreement with SPAC or its Affiliates). The Company agrees and acknowledges that such irrevocable waiver is material to this Agreement and specifically relied upon by SPAC and its Affiliates to induce SPAC to enter in this Agreement, and the Company further intends and understands such waiver to be valid, binding and enforceable against such Party and each of its Affiliates under applicable Law. To the extent that the Company or any of its Affiliates commences any Action based upon, in connection with, relating to or arising out of any matter relating to SPAC or its Representatives, which proceeding seeks, in whole or in part, monetary relief against SPAC or its Representatives, the Company hereby acknowledges and agrees that its and its Affiliates’ sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit such Party or any of its Affiliates (or any Person claiming on any of their behalves or in lieu of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. In the event that the Company or any of its Affiliates commences any Action based upon, in connection with, relating to or arising out of any matter relating to SPAC or its Representatives which proceeding seeks, in whole or in part, relief against the Trust Account (including any distributions therefrom) or the Public Shareholders, whether in the form of money damages or injunctive relief, SPAC and its Representatives, as applicable, shall be entitled to recover from the Company and their respective Affiliates, as applicable, the associated legal fees and costs in connection with any such Action, in the event SPAC or its Representatives, as applicable, prevails in such Action. This Section 8.1 shall survive termination of this Agreement for any reason and continue indefinitely.
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Article
IX
MISCELLANEOUS
9.1 Non-Survival of Representations, Warranties and Covenants. The representations and warranties of the Parties contained in this Agreement or in any certificate or instrument delivered by or on behalf of the Parties pursuant to this Agreement shall not survive the Closing, and shall terminate and expire upon the occurrence of the Closing (and there shall be no Liability after the Closing in respect thereof), and from and after the Closing, the Parties and their respective Representatives shall not have any further obligations, nor shall any claim be asserted or action be brought against the Parties or their respective Representatives with respect thereto. The covenants and agreements made by the Parties in this Agreement or in any certificate or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such covenants or agreements, shall not survive the Closing, and shall terminate and expire upon the occurrence of the Closing (and there shall be no liability after the Closing in respect thereof), except for those covenants and agreements contained herein and therein that by their terms apply or are to be performed in whole or in part after the Closing (which such covenants shall survive the Closing and continue until fully performed in accordance with their terms); provided that in the context of breaches thereof, with respect only to any breaches occurring after the Closing.
9.2 Non-Recourse. This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as Parties and then only with respect to the specific obligations set forth herein with respect to such Party. Except to the extent a Party (and then only to the extent of the specific obligations undertaken by such Party in this Agreement), (a) no past, present or future director, officer, employee, sponsor, incorporator, member, partner, shareholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any Party and (b) no past, present or future director, officer, employee, sponsor, incorporator, member, partner, shareholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of SPAC, Merger Sub or the Company under this Agreement of or for any claim based on, arising out of, or related to this Agreement or the transactions contemplated hereby.
9.3 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person, (b) by email with affirmative confirmation of receipt, (c) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (d) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
If to SPAC or Merger Sub at or prior to the Closing, to:
Newbury Street II Acquisition Corp Boston, Massachusetts 02110 Email: [***] |
with a copy (which will not constitute notice) to:
Ellenoff Grossman & Schole LLP |
|
If to the Company or the Surviving Corporation, to:
Fort Robotics, Inc. 12th Floor Philadelphia, PA 19103 Attn: Samuel Reeves Telephone No.: (267) 515-5880 |
with a copy (which will not constitute notice) to:
Fenwick & West LLP 801 California Street Mountain View, CA 94041 Attn: David Michaels ([***]); Aman Singh |
|
If to SPAC after the Closing, to:
Fort Robotics Holdings, Inc. 12th Floor Philadelphia, PA 19103 Attn: Samuel Reeves Telephone No.: (267) 515-5880 |
with a copy (which will not constitute notice) to:
Fenwick & West LLP 801 California Street Mountain View, CA 94041 Attn: David Michaels ([***]); Aman Singh
|
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9.4 Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of SPAC and the Company, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning Party of its obligations hereunder.
9.5 Third Parties. Except for the rights of the D&O Indemnified Persons set forth in Section 5.17, and of the Sponsor, EGS and Fenwick in Section 9.15, which the Parties acknowledge and agree are express third party beneficiaries of this Agreement for purposes of such Sections and related enforcement provisions, nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a Party hereto or thereto or a successor or permitted assign of such a Party.
9.6 Governing Law; Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of Delaware without regard to the conflict of laws principles thereof. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware in and for New Castle County, Delaware or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court (or, in each case, any appellate courts thereof) (the “Specified Courts”). Each Party hereby (a) submits to the exclusive jurisdiction of any Specified Court for the purpose of any Action arising out of or relating to this Agreement brought by any Party and (b) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the Specified Courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Court. Each Party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each Party irrevocably consents to the service of the summons and complaint and any other process in any other Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such Party at the applicable address set forth in Section 9.3. Nothing in this Section 9.6 shall affect the right of any Party to serve legal process in any other manner permitted by Law.
9.7 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.7.
9.8 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and the non-breaching Parties may have no adequate remedy at law, and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
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9.9 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
9.10 Amendment. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by SPAC and the Company.
9.11 Waiver. SPAC on behalf of itself and its Affiliates and the Company on behalf of itself and its Affiliates, may in its sole discretion (a) extend the time for the performance of any obligation or other act of any other non-Affiliated Party hereto, (b) waive any inaccuracy in the representations and warranties by such other non-Affiliated Party contained herein or in any document delivered pursuant hereto and (c) waive compliance by such other non-Affiliated Party with any covenant or condition contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party or Parties to be bound thereby (including by the applicable Representative of such Party in lieu of such Party to the extent provided in this Agreement). Notwithstanding the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
9.12 Entire Agreement. This Agreement and the documents or instruments referred to herein, including any exhibits and schedules attached hereto, which exhibits and schedules are incorporated herein by reference, together with the Ancillary Documents, embody the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the Parties with respect to the subject matter contained herein.
9.13 Interpretation. The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement. In this Agreement, unless the context otherwise requires: (a) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and words in the singular, including any defined terms, include the plural and vice versa; (b) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) any accounting term used and not otherwise defined in this Agreement or any Ancillary Document has the meaning assigned to such term in accordance with GAAP; (d) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (e) the words “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular Section or other subdivision of this Agreement; (f) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (g) the term “or” means “and/or”; (h) any reference to the term “ordinary course” or “ordinary course of business” shall be deemed in each case to be followed by the words “consistent with past practice”; (i) any agreement, instrument, insurance policy, Law or Order defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument, insurance policy, Law or Order as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes, regulations, rules or orders) by succession of comparable successor statutes, regulations, rules or orders and references to all attachments thereto and instruments incorporated therein; (j) except as otherwise indicated, all references in this Agreement to the words “Section,” “Article,” “Schedule,” and “Exhibit” are intended to refer to Sections, Articles, Schedules and Exhibits to this Agreement; and (k) the term “Dollars” or “$” means United States dollars. Any reference in this Agreement or any Ancillary Document to (i) a Person’s directors shall include any member of such Person’s governing body, (ii) officers shall include any Person filling a substantially similar position for such Person or (iii) shareholders or stockholders shall include any applicable owners of the equity interests of such Person, in whatever form. The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. To the extent that any Contract, document, certificate or instrument is represented and warranted to by the Company to be given, delivered, provided or made available by the Company, in order for such Contract, document, certificate or instrument to have been deemed to have been given, delivered, provided and made available to SPAC or its Representatives, such Contract, document, certificate or instrument shall have been posted to the electronic data site maintained on behalf of the Company for the benefit of SPAC and its Representatives and SPAC and its Representatives have been given access to the electronic folders containing such information.
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9.14 Counterparts. This Agreement and each Ancillary Document may be executed and delivered (including by facsimile, pdf or other electronic transmission) in one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
9.15 Legal Representation.
(a) The Parties agree that, notwithstanding the fact that Ellenoff Grossman & Schole LLP (“EGS”) may have, prior to the Closing, jointly represented SPAC, Merger Sub and/or the Sponsor in connection with this Agreement, the Ancillary Documents and the Transactions, and has also represented SPAC and/or its Affiliates in connection with matters other than the transaction that is the subject of this Agreement, EGS will be permitted in the future, after the Closing, to represent the Sponsor or its Affiliates in connection with matters in which such Persons are adverse to SPAC or any of its Affiliates, including any disputes arising out of, or related to, this Agreement. The Company, which is or has the right to be represented by independent counsel in connection with the transactions contemplated by this Agreement, hereby agrees, in advance, to waive (and to cause its Affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with EGS’s future representation of one or more of the Sponsor or its Affiliates in which the interests of such Person are adverse to the interests of SPAC and/or the Company or any of its Affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by EGS of SPAC, Merger Sub, the Sponsor or any of their respective Affiliates. The Parties acknowledge and agree that, for the purposes of the attorney-client privilege, the Sponsor shall be deemed the client of EGS with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor, shall be controlled by the Sponsor and shall not pass to or be claimed by SPAC or the Surviving Corporation; provided, further, that nothing contained herein shall be deemed to be a waiver by SPAC or any of its Affiliates (including, after the Effective Time, the Surviving Corporation and its Affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
(b) The Parties agree that, notwithstanding the fact that Fenwick & West LLP (“Fenwick”) may have, prior to the Closing, jointly represented the Company and the Company Stockholders in connection with this Agreement, the Ancillary Documents and the Transactions, and has also represented the Company and/or its Affiliates in connection with matters other than the transaction that is the subject of this Agreement, Fenwick will be permitted in the future, after the Closing, to represent the Company Stockholders or their respective Affiliates in connection with matters in which such Persons are adverse to the Company or any of its Affiliates, including any disputes arising out of, or related to, this Agreement. SPAC, which is or has the right to be represented by independent counsel in connection with the transactions contemplated by this Agreement, hereby agrees, in advance, to waive (and to cause its Affiliates to waive) any actual or potential conflict of interest that may hereafter arise in connection with Fenwick’s future representation of one or more of the Company Stockholders or their respective Affiliates in which the interests of such Person are adverse to the interests of SPAC and/or the Company or any of their respective Affiliates, including any matters that arise out of this Agreement or that are substantially related to this Agreement or to any prior representation by Fenwick of the Company, the Company Stockholders or any of their respective Affiliates. The Parties acknowledge and agree that, for the purposes of the attorney-client privilege, the Company Stockholders shall be deemed the clients of Fenwick with respect to the negotiation, execution and performance of this Agreement and the Ancillary Documents. All such communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Company Stockholders, shall be controlled by the Company Stockholders and shall not pass to or be claimed by SPAC or the Surviving Corporation; provided, further, that nothing contained herein shall be deemed to be a waiver by the Company or any of its Affiliates (including, after the Effective Time, SPAC and the Surviving Corporation and their respective Affiliates) of any applicable privileges or protections that can or may be asserted to prevent disclosure of any such communications to any third party.
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Article
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DEFINITIONS
10.1 Certain Definitions. For purpose of this Agreement, the following capitalized terms have the following meanings:
“Action” means any claim, demand, charge, action, suit, lawsuit, litigation, audit, complaint, settlement, stipulation, assessment or arbitration, or any request (including any request for information), inquiry, hearing, proceeding or investigation (in each case, whether civil, criminal or administrative and whether public or private), by or before any Governmental Authority.
“Affiliate” means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with such Person. For the avoidance of doubt, Sponsor shall be deemed to be an Affiliate of SPAC prior to the Closing.
“Ancillary Documents” means each agreement, instrument or document attached hereto as an Exhibit, and the other agreements, certificates and instruments to be executed or delivered by any of the Parties hereto in connection with or pursuant to this Agreement, and including the Voting Agreements, the Lock-Up Agreements, the Registration Rights Agreement, the Non-Competition Agreements, the Employment Agreements, the Domestication Organizational Documents, the Amended SPAC Articles, the Letters of Transmittal, the Incentive Plan and each other agreement, document, instrument and/or certificate executed, or contemplated to be executed, in connection with the transactions contemplated hereby, including the Merger, and the Domestication.
“Benefit Plans” of any Person means any and all deferred compensation, executive compensation, incentive compensation, equity purchase, phantom equity or other equity-based compensation plan, employment or consulting, change in control, retention, severance or termination pay, holiday, vacation or other bonus plan or practice, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension, or retirement plan, program, agreement, commitment or arrangement, and each other employee benefit plan, program, agreement or arrangement, including each “employee benefit plan” as such term is defined under Section 3(3) of ERISA, maintained or contributed to or required to be contributed to by a Person for the benefit of any employee or terminated employee of such Person, or with respect to which such Person has any Liability, whether direct or indirect, actual or contingent, whether formal or informal, and whether legally binding or not.
“Business Day” means any day other than a Saturday, Sunday or a legal holiday on which commercial banking institutions in New York, New York are authorized to close for business, excluding as a result of “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems, including for wire transfers, of commercially banking institutions in New York, New York are generally open for use by customers on such day.
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“Change of Control” means: (a) any acquisition on any date after the Closing by any Person (that is not an Affiliate of SPAC or the Surviving Corporation) of beneficial ownership (as defined in Section 13(d) of the Exchange Act) of the capital stock of SPAC that, with the SPAC capital stock already held by such Person, constitutes more than 50% of the total voting power of the SPAC capital stock; provided that for the avoidance of doubt, for purposes of this subsection, the acquisition of additional SPAC capital stock (other than with respect to an acquisition that results in a Person (that is not an Affiliate of SPAC or the Surviving Corporation) owning 100% of the outstanding SPAC capital stock) (i) by any Person who, prior to such acquisition, beneficially owns more than 50% of the total voting power of the SPAC capital stock or (ii) pursuant to a pro rata distribution by Sponsor or its Affiliates to their respective equityholders as of the Closing will not be considered a Change of Control; or (b) any acquisition on any date after the Closing of SPAC by another Person by means of (i) any transaction or series of related transactions (including any reorganization, merger, or consolidation but excluding any merger effected exclusively for the purpose of changing the domicile of SPAC), or (ii) a sale of all or substantially all of the assets of SPAC and its Subsidiaries, if, in case of either clause (i) or clause (ii), the number of shares of SPAC capital stock outstanding immediately following the Closing (as adjusted for any stock split or other recapitalization event) will, immediately after such transaction, series of related transactions or sale, represent less than 50% of the total voting power of the surviving or acquiring entity.
“Code” means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as amended. Reference to a specific section of the Code shall include such section and any valid treasury regulation promulgated thereunder.
“Company Charter” means the Articles of Incorporation of the Company, as amended and effective under the DGCL.
“Company Common Stock” means the common stock, par value $0.00001 per share, of the Company.
“Company Confidential Information” means all confidential or proprietary documents and information concerning the Target Companies or any of their respective Representatives, furnished in connection with this Agreement or the transactions contemplated hereby; provided, however, that Company Confidential Information shall not include any information which, (a) at the time of disclosure by SPAC or its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (b) at the time of the disclosure by the Company or its Representatives to SPAC or its Representatives was previously known by such receiving party without violation of Law or any confidentiality obligation by the Person receiving such Company Confidential Information.
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“Company Convertible Securities” means, collectively, the Company Options, the Pre-Signing Company SAFEs, the Company Warrants and any other options, warrants or rights to subscribe for or purchase any capital stock of the Company or securities convertible into or exchangeable for, or that otherwise confer on the holder any right to acquire any capital stock of the Company. For the avoidance of doubt, Company Convertible Securities shall exclude the Permitted Company SAFEs but include any securities, rights and/or profits interests, issued by any Affiliate, plan, holding company, or other entity which, directly or indirectly, holds Company Securities, and which can cause the revaluation, valuation, issuance, profits or payment compensation in connection with, or conversion, exercise or exchange of, any Company Securities.
“Company Equity Plan” means the Fort Robotics, Inc. (f/k/a HRI Networks, Inc.) 2018 Equity Incentive Plan.
“Company FF Preferred Stock” means the FF Preferred Stock, par value $0.00001 per share, of the Company.
“Company Fundamental Representations” means the representations and warranties specified in Section 4.1 (Organization and Standing), Section 4.2 (Authorization; Binding Agreement); Section 4.3(a) (other than the first sentence of Section 4.3(a)) (Capitalization); Section 4.3(b) (Capitalization); clause (a) of Section 4.6 (Non-Contravention); and Section 4.26 (Finders and Brokers).
“Company Inbound IP Licenses” means all written licenses, sublicenses and other Contracts by and between a Target Company and third party licensor (other than Standard IP Agreements), under which a Target Company is a licensee of Intellectual Property used for the conduct of the business of such Target Company as currently conducted.
“Company Option” means any option, right, award, understanding or agreement to purchase, subscribe for, or be exercised or exchanged for, or be converted into, Company Stock, which was granted pursuant to the Company Equity Plan or otherwise.
“Company Outbound IP License” means all written licenses, sublicenses and other Contracts by and between a third party and a Target Company (other than Standard IP Agreements), under which a Target Company is the licensor of Company Owned IP.
“Company Owned IP” means, collectively, the Company Registered IP and Company Unregistered Owned IP.
“Company Preferred Stock” means, collectively, Company FF Preferred Stock, Company Series B Junior Prime Preferred Stock, Company Series B Senior Prime Preferred Stock, Company Series B-1 Preferred Stock, Company Series B-2 Preferred Stock, Company Series Seed 2 Junior Prime Preferred Stock and Company Series Seed Junior Prime Preferred Stock.
“Company Real Property Leases” means all current leases, lease guarantees, agreements and documents related to the premises currently leased or subleased or otherwise used or occupied by a Target Company for the operation of the business of a Target Company, including all amendments, terminations and modifications thereof or waivers thereto.
“Company Registered IP” means all U.S. and foreign Patent registrations and pending Patent applications, Trademark registrations and pending Trademark applications, Copyright registrations and registered Internet Assets that are owned or purported to be owned by a Target Company.
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“Company Restricted Stock” means shares of Company Common Stock subject to vesting, forfeiture or similar lapsing conditions.
“Company SAFEs” mean the Pre-Signing Company SAFEs and the Permitted Company SAFEs.
“Company SAFE Conversion Amounts” means the Pre-Signing Company SAFE Conversion Amounts and the Permitted Company Conversion Amounts.
“Company Securities” means, collectively, the Company Stock, the Company Options, the Company SAFEs, the Company Warrants and any other Company Convertible Securities.
“Company Security Holders” means, collectively, the holders of Company Securities.
“Company Series B Junior Prime Preferred Stock” means the Series B Junior Prime preferred stock, par value $0.00001 per share, of the Company.
“Company Series B Senior Prime Preferred Stock” means the Series B Senior Prime preferred stock, par value $0.00001 per share, of the Company.
“Company Series B-1 Preferred Stock” means the Series B-1 preferred stock, par value $0.00001 per share, of the Company.
“Company Series B-2 Preferred Stock” means the Series B-2 preferred stock, par value $0.00001 per share, of the Company.
“Company Series Seed 2 Junior Prime Preferred Stock” means the Series Seed 2 Junior Prime preferred stock, par value $0.00001 per share, of the Company.
“Company Series Seed Junior Prime Preferred Stock” means the Series Seed Junior Prime preferred stock, par value $0.00001 per share, of the Company.
“Company Stock” means any shares of the Company Common Stock and the Company Preferred Stock.
“Company Stockholders” means, collectively, the holders of Company Stock. For the avoidance of doubt, Company Stockholders shall not include any holders of Company Options that have not exercised such Company Options at or prior to the Closing.
“Company Transaction Expenses” means all fees and expenses of any of the Target Companies incurred or payable as of the Closing and not paid prior to the Closing (i) in connection with the consummation of the transactions contemplated hereby, including any amounts payable to professionals (including investment bankers, brokers, finders, attorneys, accountants and other consultants and advisors) retained by or on behalf of any Target Company, (ii) any change in control bonus, transaction bonus, retention bonus, termination or severance payment or similar payment relating to options, warrants or other equity appreciation, phantom equity, profit participation or similar rights, in any case, to be made to any current or former employee, independent contractor, director or officer of any Target Company at or after the Closing pursuant to any agreement to which any Target Company or its Affiliate is a party prior to the Closing which become payable (including if subject to continued employment) as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby, (iii) the Company’s portion of any Antitrust Expenses and SEC Filing Fee Expenses in accordance with Section 7.3 that have not been paid prior to the Closing, and (iv) any sales, use, real property transfer, stamp, stock transfer or other similar transfer Taxes imposed on SPAC, Merger Sub or any Target Company in connection with the Merger or the other transactions contemplated by this Agreement.
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“Company Unregistered Owned IP” means all material unregistered Intellectual Property owned or purported to be owned by a Target Company.
“Company Warrants” means, as of any determination time, each warrant to purchase Company Common Stock that is outstanding, including the Stifel Warrant.
“Consent” means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with any Governmental Authority or any other Person.
“Contracts” means all contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses (and all other contracts, agreements or binding arrangements concerning Intellectual Property), franchises, leases and other instruments or obligations or undertakings or other commitments or arrangements that are legally binding upon a Person or any of his, her or its properties or assets, written or oral (including any amendments and other modifications thereto).
“Control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise. “Controlled”, “Controlling” and “under common Control with” have correlative meanings. Without limiting the foregoing a Person (the “Controlled Person”) shall be deemed Controlled by (a) any other Person (i) owning beneficially, as meant in Rule 13d-3 under the Exchange Act, securities entitling such Person to cast ten percent (10%) or more of the votes for election of directors or equivalent governing authority of the Controlled Person or (ii) entitled to be allocated or receive ten percent (10%) or more of the profits, losses, or distributions of the Controlled Person; (b) an officer, director, general partner, partner (other than a limited partner), manager, or member (other than a member having no management authority that is not a Person described in clause (a) above) of the Controlled Person; or (c) a spouse, parent, lineal descendant, sibling, aunt, uncle, niece, nephew, mother-in-law, father-in-law, sister-in-law, or brother-in-law of an Affiliate of the Controlled Person or a trust for the benefit of an Affiliate of the Controlled Person or of which an Affiliate of the Controlled Person is a trustee.
“Copyrights” means any works of authorship, mask works and all copyrights therein, including all renewals and extensions, copyright registrations and applications for registration and renewal, and non-registered copyrights.
“Environmental Law” means any Law relating to (a) the protection of human health and safety (to the extent related to Hazardous Material exposure), (b) the protection, preservation or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Materials, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC. Section 9601 et. seq., the Resource Conservation and Recovery Act, 42 USC. Section 6901 et. seq., the Toxic Substances Control Act, 15 USC. Section 2601 et. seq., the Federal Water Pollution Control Act, 33 USC. Section 1151 et seq., the Clean Air Act, 42 USC. Section 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC. Section 111 et. seq., Occupational Safety and Health Act, 29 USC. Section 651 et. seq. (to the extent it relates to exposure to Hazardous Material), the Asbestos Hazard Emergency Response Act, 15 USC. Section 2601 et. seq., the Safe Drinking Water Act, 42 USC. Section 300f et. seq., the Oil Pollution Act of 1990 and analogous state acts.
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“Environmental Liabilities” means, in respect of any Person, all Liabilities, obligations, responsibilities, Remedial Actions, losses, Actions, Orders, Liens, damages, costs, and expenses (including all reasonable fees, disbursements, and expenses of counsel, experts, and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand by any other Person or in response to any violation of Environmental Law, whether known or unknown, accrued or contingent, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, to the extent based upon, related to, or arising under or pursuant to any Environmental Law, Environmental Permit, Order, or Contract with any Governmental Authority or other Person, that relates to any environmental, health or safety condition, violation of Environmental Law, or a Release or threatened Release of Hazardous Materials.
“Equity Securities” means any share, share capital, capital stock, partnership, membership, joint venture or similar interest in any Person (including any stock appreciation, phantom stock, restricted stock, restricted stock unit, performance share, profit participation or similar rights), and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable therefor.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Fraud Claim” means any claim based upon fraud as defined under the common law of the State of Delaware.
“Founder Shares” means 6,118,000 SPAC Class B Ordinary Shares, initially issued to the Sponsor prior to the IPO.
“Fully-Diluted Company Shares” means, as of immediately prior to the Closing and without duplication, the total number of issued and outstanding shares of Company Common Stock, (a) after giving effect to the Company Preferred Stock Exchange or otherwise treating shares of Company Preferred Stock on an as converted to Company Common Stock basis and (b) treating all outstanding Company Convertible Securities as fully vested and as if the Company Convertible Security had been exercised, exchanged or converted as of the Effective Time but excluding any Company Securities described in Section 1.10(b) (relating to treasury stock).
“GAAP” means generally accepted accounting principles as in effect in the United States of America.
“Governmental Authority” means any federal, state, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality, department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body.
“Hazardous Material” means any waste, gas, liquid or other substance or material that is defined, listed or designated as a “hazardous substance”, “pollutant”, “contaminant”, “hazardous waste”, “regulated substance”, “hazardous chemical”, or “toxic chemical” (or by any similar term) under any Environmental Law, or any other material regulated, or that could result in the imposition of Liability or responsibility, under any Environmental Law, including petroleum and its by-products, asbestos, polychlorinated biphenyls, radon, mold, and urea formaldehyde insulation.
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“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder.
“Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including the outstanding principal and accrued but unpaid interest), (b) all obligations for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business), (c) any other indebtedness of such Person that is evidenced by a note, bond, debenture, credit agreement or similar instrument, (d) all obligations of such Person under leases that should be classified as capital leases in accordance with GAAP, (e) all obligations of such Person for the reimbursement of any obligor on any line or letter of credit, banker’s acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (f) all obligations of such Person in respect of acceptances issued or created, (g) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (h) all obligations secured by an Lien (other than a Permitted Lien) on any property of such Person, (i) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person and (j) all obligations described in clauses (a) through (i) of any other Person which is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
“Insider Letter Agreement” means that certain letter agreement, dated as of October 31, 2024, by and among SPAC, its officers and directors and the Sponsor.
“Intellectual Property” means all of the following as they exist in any jurisdiction throughout the world: Patents, Trademarks, Copyrights, Trade Secrets, Internet Assets, Software and other intellectual property, and forms of protection of a similar or analogous nature to any of the foregoing or having similar effect in any jurisdiction throughout the world.
“Internet Assets” means any and all domain name registrations, web sites and web addresses and related rights, items and documentation related thereto, and applications for registration therefor.
“Investment Company Act” means Investment Company Act of 1940, as amended.
“IPO” means the initial public offering of SPAC Units pursuant to the IPO Prospectus.
“IPO Prospectus” means the final prospectus of SPAC, dated as of October 31, 2024, and filed with the SEC on November 1, 2024 (File No. 333-281456).
“IPO Underwriter” means BTIG LLC, as representative of the several underwriters to the IPO.
“IRS” means the U.S. Internal Revenue Service (or any successor Governmental Authority).
“Knowledge” means, with respect to (i) the Company, the actual knowledge of the individuals set forth on Schedule 10.1(a), after reasonable inquiry or (ii) any other Party, (A) if an entity, the actual knowledge of its directors and executive officers, after reasonable inquiry, or (B) if a natural person, the actual knowledge of such Party after reasonable inquiry.
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“Law” means any federal, state, local, municipal, foreign, national or supernational or other law, statute, act, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority having jurisdiction over a given matter.
“Liabilities” means any and all liabilities, Indebtedness, Actions or obligations of any nature (whether absolute, accrued, unaccrued, liquidated, unliquidated, fixed, contingent or otherwise, whether known or unknown, whether direct or indirect, whether determined or determinable, whether matured or unmatured, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards), including those arising under any Law, Action or Order and those arising under any Contract, agreement, arrangement, commitment or undertaking, and all Tax liabilities due or to become due.
“Lien” means any mortgage, pledge, security interest, attachment, right of first refusal, option, proxy, voting trust, encumbrance, lien, license, sublicense or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Losses” means any and all losses, Actions, Orders, Liabilities, damages (including consequential damages), diminution in value, Taxes, interest, penalties, Liens, amounts paid in settlement, costs and expenses (including reasonable expenses of investigation and court costs and reasonable attorneys’ fees and expenses).
“Management Team” means (i) Samuel Reeves, Chief Executive Officer of the Company, (ii) Nathan Bivans, Chief Technology Officer of the Company and (iii) Sarah Keim, Chief People Officer of the Company.
“Material Adverse Effect” means, with respect to any specified Person, any fact, event, occurrence, change or effect that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon (a) the business, assets, Liabilities, results of operations or condition (financial or otherwise) of such Person and its Subsidiaries, taken as a whole, or (b) the ability of such Person or any of its Subsidiaries on a timely basis to consummate the transactions contemplated by this Agreement or to perform its obligations hereunder; provided, however, that for purposes of clause (a) above, any adverse fact, event, occurrence, changes or effects directly or indirectly attributable to, resulting from, relating to or arising from or out of the following (by themselves or when aggregated with any other, changes or effects) shall not be deemed to be, constitute, or be taken into account when determining whether a Material Adverse Effect has occurred or is reasonably likely or expected to occur: (i) general changes in the financial or securities markets or general economic or political conditions in the country or region in which such Person or any of its Subsidiaries do business; (ii) adverse fact, event, occurrence, changes, conditions or effects that generally affect the industries in which such Person or any of its Subsidiaries principally operate; (iii) changes or proposed changes in applicable Laws or GAAP (as applicable based on the accounting principles used by the applicable Person) or other applicable accounting principles or mandatory changes in the regulatory accounting requirements applicable to any industry in which such Person and its Subsidiaries principally operate; (iv) conditions caused by acts of God, terrorism, war (whether or not declared) (including the Russian invasion of the Ukraine or any surrounding countries or war in Iran and other countries in the Middle East), natural disaster or pandemic or the worsening thereof; (v) any failure in and of itself by such Person and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any period (provided that the underlying cause of any such failure may be considered in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur to the extent not excluded by another exception herein); and (vi) the announcement or, pendency of the transactions contemplated by this Agreement; and (vii), with respect to SPAC, the consummation and effects of any Redemption; provided further, however, that any fact, event, occurrence, condition, or change resulting from a matter described in any of the clauses (i) - (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or would reasonably likely or expected to occur to the extent that such fact, event, occurrence, condition, or change has or has had a disproportionate and adverse effect on such Person or any of its Subsidiaries, taken as a whole, compared to other participants in the industries in which such Person or any of its Subsidiaries primarily conducts its businesses. Notwithstanding the foregoing, with respect to SPAC, the amount of any Redemption or the failure to obtain the Required SPAC Shareholder Approval shall not be deemed to be a Material Adverse Effect on or with respect to SPAC.
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“Merger Sub Common Stock” means the shares of common stock, par value $0.0001 per share, of Merger Sub.
“Nasdaq” means the Nasdaq Stock Market LLC, and includes either the Nasdaq Global Market or the Nasdaq Capital Market, as applicable to the relevant listing.
“NYSE” means the New York Stock Exchange.
“Off-the-Shelf Software” means “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for Software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $100,000 per year.
“Open Source Materials” means Software or other material that is distributed as “free software,” “open source software” or under substantially similar licensing or distribution terms, including but not limited to, the Mozilla Public License (MPL), BSD licenses, MIT licenses, and the Apache License, and any other license or distribution model described by the Open Source Initiative at www.opensource.org.
“Order” means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational Documents” means, with respect to any Person that is an entity, its certificate of incorporation, articles of incorporation or formation, bylaws, operating agreement, memorandum and articles of association or similar organizational documents, in each case, as amended and/or restated.
“Patents” means any patents, patent applications and the inventions, designs and improvements described and claimed therein, patentable inventions, and other patent rights (including any divisionals, provisionals, continuations, continuations-in-part, substitutions, or reissues thereof, whether or not patents are issued on any such applications and whether or not any such applications are amended, modified, withdrawn, or refiled).
“PCAOB” means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
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“Permits” means all federal, state, local or foreign or other third-party permits, grants, easements, consents, approvals, authorizations, exemptions, licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations, ratings, registrations, qualifications or orders of any Governmental Authority or any other Person.
“Permitted Liens” means (a) mechanic’s, materialmen’s, carriers’, repairers’ and other similar statutory Liens arising or incurred in the ordinary course of business for amounts that are not yet due and payable or are being contested in good faith by appropriate proceedings and for which sufficient reserves have been established in accordance with GAAP, (b) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not yet due and payable or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established in accordance with GAAP with respect thereto, (c) other Liens imposed by operation of Law arising in the ordinary course of business for amounts which are not due and payable and as would not in the aggregate materially adversely affect the value of, or materially adversely interfere with the use of, the property subject thereto, (d) Liens incurred or deposits made in the ordinary course of business in connection with social security, (e) Liens on goods in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business, (f) Liens arising under this Agreement or any Ancillary Document, (g) encumbrances and restrictions on real property (including easements, covenants, conditions, rights of way and similar restrictions) that do not or would not prohibit or materially interfere with any of the Target Companies’ use or occupancy of such real property in the operation of the business, (h) zoning, building codes and other land use Laws regulating the use or occupancy of real property or the activities conducted thereon which are imposed by any Governmental Authority having jurisdiction over such real property and which are not violated by the use or occupancy of such real property or the operation of the businesses of the Target Company and do not prohibit or materially interfere with any of the Target Companies’ use or occupancy of such real property, (i) cash deposits or cash pledges to secure the payment of workers’ compensation, unemployment insurance, social security benefits or obligations arising under similar Laws or to secure the performance of public or statutory obligations, surety or appeal bonds, and other obligations of a like nature, in each case, in the ordinary course of business and which are not yet due and payable, and (j) grants by any Target Company of non-exclusive rights in Intellectual Property in the ordinary course of business.
“Person” means an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, joint stock company, unincorporated organization or association, trust, joint venture or other similar entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Personal Information” means any information, whether alone or in combination with other information possessed or controlled by the Target Companies, that identifies a natural person (including name, address, telephone number, email address, credit or payment card information, bank account number, date of birth, government-issued identifier, social security number, race, ethnic origin/nationality, photograph and mental or physical health or medical information).
“Personal Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts and other tangible personal property.
“Per Share Price” means an amount equal to (i) the Merger Consideration divided by (ii) the Fully-Diluted Company Shares as of the Closing.
“Permitted Company SAFE Conversion Amount” means, with respect to any Permitted Company SAFE, the quotient of (1) the Purchase Amount (as defined in the Permitted Company SAFE) divided by (2) the Discount Price (as defined in the Permitted Company SAFE).
“Pre-Signing Company SAFE” means each of those certain Simple Agreements for Future Equity listed on Schedule 4.3(b)
“Pre-Signing Company SAFE Conversion Amount” means, with respect to any Pre-Signing Company SAFE, the quotient of (1) the Purchase Amount (as defined in the Permitted Company SAFE) divided by (2) the Discount Price (as defined in the Pre-Signing Company SAFE).
“Pro Rata Share” means with respect to each Company Stockholder, a fraction expressed as a percentage equal to (i) the portion of the Stockholder Merger Consideration issuable by SPAC to such Company Stockholder in accordance with the terms of this Agreement, divided by (ii) the total Stockholder Merger Consideration issuable by SPAC to all Company Stockholders in accordance with the terms of this Agreement.
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“Processing” means any operation or set of operations performed on Personal Information, whether or not by automated means, including the collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment, combination, restriction, erasure or destruction of Personal Information.
“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor or outdoor environment, or into or out of any property.
“Remedial Action” means all actions to (i) clean up, remove, treat, or in any other way address any Hazardous Material, (ii) prevent the Release of any Hazardous Material so it does not endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care, or (iv) correct a condition of noncompliance with Environmental Laws.
“Representatives” means, with respect to any Person, such Person’s Affiliates and the respective managers, directors, general partners, officers, employees, independent contractors, consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person or its Affiliates.
“SEC” means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Securities Act” means the Securities Act of 1933, as amended.
“Significant Company Holder” means any Company Stockholder who (i) is an executive officer or director of the Company or (ii) owns more than five percent (5%) of the issued and outstanding shares of the Company, in each case of clauses (i) and (ii), treating any Company Preferred Stock and Company Convertible Securities on an as-converted to Company Stock basis.
“Software” means any computer software programs, including all source code, object code, and documentation related thereto and all software modules, tools and databases.
“SOX” means the U.S. Sarbanes-Oxley Act of 2002, as amended.
“SPAC Affiliate Transactions” means any Contract between SPAC and/or Merger Sub, on the one hand, and any director, officer or employee of SPAC or Merger Sub or any member of such Person’s immediate family or any corporation, partnership or other entity in which such Person controls, on the other hand, but excluding loans made by the Sponsor or its Affiliate to SPAC to pay for SPAC Expenses (including Extension Expenses).
“SPAC Class A Common Stock” means the shares of Class A common stock, par value $0.0001 per share, of SPAC following the consummation of the Domestication.
“SPAC Class B Common Stock” means the shares of Class B common stock, par value $0.0001 per share, of SPAC, following the consummation of the Domestication.
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“SPAC Class A Ordinary Shares” means the Class A ordinary shares, par value $0.0001 per share, of SPAC, prior to the Domestication.
“SPAC Class B Ordinary Shares” means the Class B ordinary shares, par value $0.0001 per share, of SPAC, prior to the Domestication.
“SPAC Common Stock” means, collectively, the shares of SPAC Class A Common Stock and the SPAC Class B Common Stock. For the avoidance of doubt, any reference in this Agreement to SPAC Common Stock (i) from and after the Closing shall mean the SPAC Class A Common Stock and/or the SPAC Class B Common Stock, as applicable and (ii) prior to the Domestication shall mean the applicable class of SPAC Ordinary Shares.
“SPAC Confidential Information” means all confidential or proprietary documents and information concerning SPAC or any of its Representatives; provided, however, that SPAC Confidential Information shall not include any information which, (a) at the time of disclosure by the Company or any of its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (b) at the time of the disclosure by SPAC or any of its Representatives to the Company or any of its Representatives, was previously known by such receiving party without violation of Law or any confidentiality obligation by the Person receiving such SPAC Confidential Information. For the avoidance of doubt, from and after the Closing, SPAC Confidential Information will include the confidential or proprietary information of the Target Companies.
“SPAC Fundamental Representations” means the representations and warranties specified in Section 3.1 (Organization and Standing), Section 3.2 (Authorization; Binding Agreement); clause (a) of Section 3.4 (Non-Contravention); Section 3.5(a) (other than the first sentence of Section 3.5(a)) (Capitalization); Section 3.5(b) (Capitalization); and Section 3.17 (Finders and Brokers).
“SPAC Ordinary Shares” means the SPAC Class A Ordinary Shares and the SPAC Class B Ordinary Shares. For the avoidance of doubt, any reference in this Agreement to SPAC Ordinary Shares from and after the Domestication shall mean the applicable class of SPAC Common Stock.
“SPAC Preference Shares” means preference shares, par value $0.0001 par value per share, of SPAC, prior to the Domestication.
“SPAC Private Units” means the units issued to the Sponsor and the IPO Underwriter in a private placement that closed simultaneously with the IPO, consisting of one (1) SPAC Class A Ordinary Share and one-half of one SPAC Private Warrant.
“SPAC Private Warrants” means one (1) whole warrant that was issued to the Sponsor and the IPO Underwriter in a private placement that closed simultaneously with the IPO, with each whole warrant entitling the holders thereof to purchase one (1) SPAC Class A Ordinary Share at a purchase price of $11.50 per share.
“SPAC Public Units” means the units issued in the IPO (including overallotment units acquired by SPAC’s underwriter) consisting of one (1) SPAC Class A Ordinary Share and one-half of one SPAC Public Warrant.
“SPAC Public Warrants” means the warrant that was included as part of each SPAC Public Unit, with each whole warrant entitling the holder thereof to purchase one (1) SPAC Class A Ordinary Share at a purchase price of $11.50 per share.
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“SPAC Securities” means the SPAC Units, the SPAC Ordinary Shares, the SPAC Preference Shares and the SPAC Warrants, collectively.
“SPAC Units” means the SPAC Public Units and SPAC Private Units.
“SPAC Warrants” means SPAC Private Warrants and SPAC Public Warrants, collectively.
“Sponsor” means Newbury Street II Acquisition Sponsor LLC, a Delaware limited liability company.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other legal entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such entity’s gains or losses or shall be or Control the managing director, managing member, general partner or other managing Person of such entity. A Subsidiary of a Person will also include any variable interest entity which is consolidated with such Person under applicable accounting rules.
“Target Company” means each of the Company and its direct and indirect Subsidiaries.
“Tax Return” means any return, declaration, report, claim for refund, information return or other documents (including any related or supporting schedules, statements or information) filed or required to be filed with a governmental authority in connection with the determination, assessment or collection of any Taxes.
“Taxes” means (a) all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property, windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges of any kind that in lieu of or in the nature of tax, together with any interest and any penalties, additions to tax or additional amounts with respect thereto, (b) any Liability for payment of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for any period or otherwise through operation of law and (c) any Liability for the payment of amounts described in clauses (a) or (b) as a result of any tax sharing, tax group, tax indemnity or tax allocation agreement with, or any other express or implied agreement to indemnify, any other Person.
“Trade Secrets” means any trade secrets, confidential business information, concepts, ideas, designs, research or development information, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering drawings, methods, know-how, data, mask works, discoveries, inventions, modifications, extensions, improvements, and other proprietary rights (whether or not patentable or subject to copyright, trademark, or trade secret protection).
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“Trademarks” means any trademarks, service marks, trade dress, trade names, brand names, internet domain names, designs, logos, or corporate names (including, in each case, the goodwill associated therewith), whether registered or unregistered, and all registrations and applications for registration and renewal thereof.
“Trading Day” means any day on which shares of SPAC Common Stock are actually traded on the Trading Market.
“Trading Market” means from and after the Closing, at any particular time of determination, the principal United States securities exchange or securities market on which the shares of SPAC Common Stock are then traded.
“Trust Account” means the trust account established by SPAC with the proceeds from the IPO pursuant to the Trust Agreement in accordance with the IPO Prospectus.
“Trust Agreement” means that certain Investment Management Trust Agreement, dated as of October 31, 2024, by and between SPAC and the Trustee, as it may be amended.
“Trustee” means Continental Stock Transfer & Trust Company, a New York corporation, in its capacity as trustee under the Trust Agreement.
“VWAP” means, for any security as of any date(s), the dollar volume-weighted average price for such security on the principal securities exchange or securities market on which such security is then traded during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported by OTC Markets Group Inc. If the VWAP cannot be calculated for such security on such date(s) on any of the foregoing bases, the VWAP of such security on such date(s) shall be the fair market value as determined reasonably and in good faith by a majority of the disinterested independent directors of the board of directors (or equivalent governing body) of the applicable issuer. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
“Willful Breach” means a material breach of this Agreement or any applicable Ancillary Document by a Party that is a consequence of an act undertaken or a failure to act by the breaching Party with the knowledge that the taking of such act or such failure to act would, or would reasonably be expected to, constitute or result in a breach of this Agreement or such Ancillary Document.
10.2 Section References. The following capitalized terms, as used in this Agreement, have the respective meanings given to them in the Section as set forth below adjacent to such terms:
| Term | Section | |
| Acquisition Proposal | 5.6(a) | |
| Additional Transaction Financing | 5.19(a) | |
| Additional Transaction Financing Agreements | 5.19(a) | |
| Agreement | Preamble | |
| Alternative Transaction | 5.6(a) | |
| Amended SPAC Articles | 1.8(b) | |
| Antitrust Expenses | 7.3 | |
| Antitrust Laws | 5.9(b) | |
| Assumed Option | 1.10(c) | |
| Audited Company Financials | 4.7(a) | |
| Business | Recitals | |
| Business Combination | 8.1 | |
| Certificate of Merger | 1.2 | |
| Change in Recommendation | 5.12(d) |
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| Closing | 2.1 | |
| Closing Consideration Spreadsheet | 1.13 | |
| Closing Date | 2.1 | |
| Closing Filing | 5.14(b) | |
| Closing Press Release | 5.14(b) | |
| Closing Redemption | 5.12(a) | |
| Conversion Ratio | 1.9 | |
| Companies Act | Recitals | |
| Company | Preamble | |
| Company Benefit Plan | 4.19(a) | |
| Company Certificates | 1.11(a) | |
| Company Common Stock | Recitals | |
| Company Directors | 5.16(a) | |
| Company Disclosure Schedules | Article IV | |
| Company Financials | 4.7(a) | |
| Company Material Contract | 4.12(a) | |
| Company Owned IP | 4.13(a) | |
| Company Permits | 4.10 | |
| Company Preferred Stock Exchange | 1.7 | |
| Company Real Property Leases | 4.15 | |
| Company Special Meeting | 5.13 | |
| Conversion Ratio | 1.9 | |
| DGCL | Recitals | |
| D&O Indemnified Persons | 5.17(a) | |
| Domestication | 1.8(a) | |
| Domestication Organizational Documents | 1.8(a) | |
| Effective Time | 1.2 | |
| EGS | 9.15(a) | |
| Employment Agreements | Recitals | |
| Enforceability Exceptions | 3.2 | |
| Environmental Permits | 4.20(a) | |
| Exchange Agent | 1.11(a) | |
| Expenses | 7.3 | |
| Extension | 5.3(a) | |
| Extension Expenses | 5.3(a)(iv) | |
| Extension Redemption | 3.5(c) | |
| Federal Securities Laws | 5.7 | |
| Financing Agreements | 5.19(b) | |
| GAAP Audited Company Financials | 4.7(a) | |
| Incentive Plan | 5.12(a) | |
| Initial PIPE Financing | Recitals |
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| Initial PIPE Subscription Agreements | Recitals | |
| Initial PIPE Investors | Recitals | |
| Interim Balance Sheet Date | 4.7(a) | |
| Interim Period | 5.1(a) | |
| Letter of Transmittal | 1.11(a) | |
| Lock-Up Agreement | Recitals | |
| Lost Certificate Affidavit | 1.11(d) | |
| Merger | Recitals | |
| Merger Consideration | 1.9 | |
| Merger Consideration Shares | 1.9 | |
| Merger Sub | Preamble | |
| Non-Competition Agreement | Recitals | |
| OFAC | 3.19(c) | |
| Outside Date | 7.1(b) | |
| Party(ies) | Preamble | |
| PIPE Financing Agreements | 5.19(a) | |
| PIPE Investment | 5.19(a) | |
| Transaction Financing | 5.19(a) | |
| Transaction Financing Agreements | 5.19(a) | |
| Post-Closing SPAC Board | 5.16(a) | |
| Pro Rata Share | 1.9 | |
| Proxy Statement | 5.12(a) | |
| Public Certifications | 3.6(a) | |
| Public Shareholders | 8.1 | |
| Redemption | 3.5(c) | |
| Registration Rights Agreement | Recitals | |
| Registration Statement | 5.12(a) | |
| Related Person | 4.21 | |
| Released Claims | 8.1 | |
| Required Company Stockholder Approval | 6.1(b) | |
| Required SPAC Shareholder Approval | 6.1(a) | |
| SEC Filing Fee Expenses | 7.3 | |
| SEC Reports | 3.6(a) | |
| SEC SPAC Accounting Changes | 3.6(a) | |
| Section 409A Plan | 4.19(k) | |
| Sensitive Information | 4.13(f) | |
| Signing Filing | 5.14(b) | |
| Signing Press Release | 5.14(b) | |
| SPAC | Preamble | |
| SPAC D&O Tail Insurance | 5.17(b) | |
| SPAC Directors | 5.16(a) |
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| SPAC Disclosure Schedules | Article III | |
| SPAC Expenses | 7.3 | |
| SPAC Financials | 3.6(b) | |
| SPAC Material Contract | 3.13(a) | |
| SPAC Shareholder Approval Matters | 5.12(a) | |
| SPAC Extraordinary General Meeting | 5.12(a) | |
| Specified Courts | 9.6 | |
| Sponsor | Recitals | |
| Sponsor Letter Agreement | Recitals | |
| Stockholder Merger Consideration | 1.9 | |
| Surviving Corporation | 1.1 | |
| Top Customers | 4.23 | |
| Top Suppliers | 4.23 | |
| Transmittal Documents | 1.11(b) | |
| Transaction Financing | 5.19(b) | |
| Unaudited Company Financials | 4.7(a) | |
| Voting Agreements | Recitals |
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IN WITNESS WHEREOF, each Party hereto has caused this Agreement and Plan of Merger to be signed and delivered as of the date first written above.
| SPAC: | |||
| NEWBURY STREET II ACQUISITION CORP | |||
| By: | /s/ Thomas Bushey | ||
| Name: | Thomas Bushey | ||
| Title: | Chief Executive Officer | ||
| Merger Sub: | |||
| HUGO MERGER SUB | |||
| By: | /s/ Thomas Bushey | ||
| Name: | Thomas Bushey | ||
| Title: | Chief Executive Officer | ||
| The Company: | |||
| FORT ROBOTICS, INC. | |||
| By: | /s/ Samuel Reeves | ||
| Name: | Samuel Reeves | ||
| Title: | Chief Executive Officer | ||
Exhibit 10.1
EXECUTION VERSION
CERTAIN INFORMATION HAS BEEN REDACTED FROM THIS EXHIBIT (A) BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL OR (B) IN ACCORDANCE WITH ITEM 601(A)(6) OF REGULATION S-K DUE TO PERSONAL PRIVACY CONCERNS. INFORMATION THAT HAS BEEN SO REDACTED FROM THIS EXHIBIT HAS BEEN MARKED WITH “[***]” TO INDICATE THE OMISSION.
FORM OF VOTING AND SUPPORT AGREEMENT
This Voting and Support Agreement (this “Agreement”) is made as of August 17, 2026 by and among (i) Newbury Street II Acquisition Corp, a Cayman Islands exempted company (together with its successors, including after giving effect to the Domestication (as defined below), “SPAC”), (ii) Fort Robotics, Inc., a Delaware corporation (the “Company”), and (iii) the undersigned shareholders (collectively, the “Holders” and each, a “Holder”) of the Company. Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Merger Agreement (as defined below).
WHEREAS, concurrently with the execution of this Agreement, (i) SPAC, (ii) Hugo Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of SPAC (“Merger Sub”), and (iii) the Company, have entered into that certain Agreement and Plan of Merger (as may be amended, modified, supplemented and/or restated from time to time in accordance with the terms thereof, the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions thereof, upon consummation of the transactions (the “Transactions”) contemplated by the Merger Agreement (the “Closing”), among other matters, (a) SPAC will continue out of the Cayman Islands and become domesticated as a corporation in the state of Delaware (the “Domestication”), and (b) Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving such merger as a wholly-owned subsidiary of SPAC, and as a result of which all of the issued and outstanding capital stock of the Company as of immediately prior to the effective time of the Merger shall no longer be outstanding and shall automatically be cancelled in exchange for which the security holders of the Company shall have the right to receive shares of common stock of SPAC, in accordance with the applicable provisions of the DGCL, and all upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, as of the date hereof, each Holder is the sole record holder and sole beneficial (as such term is defined in Rule 13d-3 under the Exchange Act, which meaning shall apply for all purposes of this Agreement whenever the term “beneficial” or “beneficially” is used) owner, and has full voting power over (a) the number of shares of Company Common Stock set forth opposite such Holder’s name on Schedule A-1 next to the applicable class heading, and (b) the number of shares of Company Preferred Stock set forth opposite such Holder’s name on Schedule A-2 next to the applicable class heading (all such shares of Company Common Stock specified on Schedule A-1 shall be referred to herein as the Holder’s “Subject Common Stock”, all such shares of Company Preferred Stock specified on Schedule A-2 shall be referred to herein as the Holder’s “Subject Preferred Stock” and the Holder’s Subject Common Stock and Subject Preferred Stock shall be referred to herein collectively as the Holder’s “Subject Stock”); and
WHEREAS, as a condition to the willingness of SPAC to enter into the Merger Agreement, and as an inducement and in consideration therefor, and in view of the valuable consideration to be received by each Holder thereunder, and the expenses and efforts to be undertaken by SPAC and the Company to consummate the Merger Agreement, the Ancillary Documents and the Transactions, SPAC, the Company and such Holder desire to enter into this Agreement in order for such Holder to provide certain assurances to SPAC regarding the manner in which such Holder is bound hereunder to vote its Subject Stock during the period from and including the date hereof through and including the date on which this Agreement is terminated in accordance with its terms (the “Voting Period”) with respect to the Merger Agreement, the Merger, the Ancillary Documents and the Transactions.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Covenant to Vote in Favor of Transactions and Other Actions in Connection with the Transactions. Each Holder agrees, with respect to all of the Subject Stock:
(a) during the Voting Period, at each meeting of the stockholders of the Company (the “Company Stockholders”) or any class or series thereof, and in each written consent or resolutions of any of the Company Stockholders in which such Holder is entitled to vote or consent as a stockholder of the Company, such Holder hereby unconditionally and irrevocably agrees to be present for such meeting or otherwise be counted as present thereat for the purpose of establishing a quorum and vote (in person or by proxy), or consent to any action by written consent or resolution, in accordance with the applicable provisions of the Company’s Organizational Documents, including its Bylaws and the Company Charter, dated January 25, 2021, and June 16, 2025, respectively, and with respect to, as applicable, the Subject Stock (i) in favor of, and adopt, the Merger, the Merger Agreement, the Ancillary Documents, any amendments to the Company’s Organizational Documents required in furtherance of the Transactions, and all of the other Transactions (and any actions required in furtherance thereof), (ii) in favor of the other matters set forth in the Merger Agreement, and (iii) in opposition to: (A) any Acquisition Proposal or Alternative Transaction and any and all other proposals (x) for the acquisition of the Company, (y) that could reasonably be expected to materially delay or impair the ability of the Company to consummate the Merger, the Merger Agreement or any of the Transactions, (B) other than as contemplated by the Merger Agreement or the Ancillary Documents, any material change in (x) the present capitalization of the Company or any amendment of the Company’s Organizational Documents or (y) the Company’s corporate structure or business, or (C) any other action or proposal that is intended, or would reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect in any material respect the Transactions or would reasonably be expected to result in any of the conditions to the Closing under the Merger Agreement not being fulfilled; provided that, for the avoidance of doubt, nothing in this Agreement shall require such Holder to vote or cause to be voted in any manner with respect to any amendment to the Merger Agreement in a manner that (x) decreases the Merger Consideration or the Stockholder Merger Consideration, (y) changes the form of the Merger Consideration or the Stockholder Merger Consideration or (z) is materially adverse to such Holder or the Company’s stockholders generally; provided further that except as expressly set forth in this Section 1, the Holder shall not be restricted from voting in any manner with respect to any other matters presented or submitted to the stockholders of the Company;
(b) to execute and deliver all related customary documentation and take such other action in support of the Merger, the Merger Agreement, the Company Preferred Stock Exchange, any Ancillary Documents and any of the Transactions, in each case, as shall reasonably be requested by the Company or SPAC in order to carry out the terms and provision of this Section 1, including, without limitation, (i) execution and delivery to the Company of a Letter of Transmittal and the Transmittal Documents, (ii) if applicable, delivery of such Holder’s Company Certificate (or a Lost Certificate Affidavit in lieu of the Company Certificate), duly endorsed for transfer, to SPAC and any similar or related documents and such other documents as may be reasonably requested by SPAC or the Exchange Agent, (iii) any actions by written consent of the Company Stockholders relating to the matters described in Section 1(a) presented to such Holder, and (iv) any applicable Ancillary Documents (including a Lock-Up Agreement, if Holder is a Significant Company Holder), customary instruments of conveyance and transfer, and any consent, waiver, governmental filing, and any similar or related documents;
(c) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Subject Stock owned by such Holder or his/her/its Affiliates in a voting trust or subject any Subject Stock to any arrangement or agreement with respect to the voting of such Subject Stock, unless specifically requested to do so by the Company and SPAC in connection with the Merger Agreement, the Ancillary Documents or the Transactions;
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(d) except as contemplated by the Merger Agreement or the Ancillary Documents, not make, or in any manner participate in, directly or indirectly, a “solicitation” of “proxies” or consents (as such terms are used in the rules of the SEC) or powers of attorney or similar rights to vote, or seek to advise or influence any Person with respect to the voting of, any Subject Stock in connection with any vote or other action with respect to the Transactions, other than to recommend that the stockholders of the Company vote in favor of adoption of the Merger Agreement and the Transactions and any other proposal the approval of which is a condition to the obligations of the parties under the Merger Agreement (and any actions required in furtherance thereof and otherwise as expressly provided by Section 1 of this Agreement);
(e) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable Law at any time with respect to the Merger, the Merger Agreement, the Ancillary Documents and any of the Transactions, including pursuant to the DGCL;
(f) that, in connection with the Closing, such Holder (i) hereby notifies the Company of such Holder’s election to convert all of the Subject Preferred Stock (as set forth opposite such Holder’s name on Schedule A) in accordance with the Company Preferred Stock Exchange; (ii) undertakes to surrender the relevant share certificate(s) representing all of the Subject Preferred Stock (or deliver an express indemnity and undertaking in a form acceptable to the Company and SPAC in the case of any certificate found to be missing) at the registered office of the Company prior to the Effective Time; and (iii) acknowledges and agrees that all shares of Company Common Stock issued to the Holder pursuant to the Company Preferred Stock Exchange shall constitute Subject Common Stock under this Agreement; and
(g) that, with respect to the Merger and the other Transactions, each Holder hereby unconditionally and irrevocably waives any and all pre-emption rights, rights of first offer, rights of first refusal, rights of participation, tag-along rights and all other similar rights that each Holder may have in respect of the Merger and/or the Transactions contemplated under the Merger Agreement, whether such rights arise from the Company’s Organizational Documents, any other agreement, contract and/or arrangement (whether written or unwritten), at law or otherwise.
2. Grant of Proxy. Each Holder, with respect to all of such Holder’s Subject Stock, hereby irrevocably grants to, and appoints, SPAC and any SPAC Representative designated by SPAC (determined in SPAC’s sole discretion) as such Holder’s attorney-in-fact and proxy, with full power of substitution and resubstitution, for and in such Holder’s name, to vote, or cause to be voted (including by proxy or written consent, if applicable), in each case consistent with Section 1(a), any Subject Stock owned (whether beneficially or of record) by such Holder as of the date hereof and as of immediately prior to the Effective Time, solely with respect to the matters expressly set forth in Section 1(a) of this Agreement; provided, that such proxy shall not extend to any amendment or modification to the Merger Agreement that would have a material and adverse economic effect on the Holder. The proxy granted by such Holder pursuant to this Section 2 is irrevocable for the term of this Agreement and is granted in consideration of SPAC entering into this Agreement and the Merger Agreement and incurring certain related fees and expenses. Each Holder hereby affirms that such irrevocable proxy is coupled with an interest by reason of the Merger Agreement and, except upon the termination of this Agreement in accordance with Section 5(a), is intended to be irrevocable. Each Holder agrees, until this Agreement is terminated in accordance with Section 5(a), to vote its Subject Stock in accordance with Section 1 above.
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3. Other Covenants.
(a) No Transfers. Each Holder agrees that during the Voting Period it shall not, and shall cause its Affiliates not to, without SPAC’s prior written consent, (A) offer for sale, sell (including short sales), transfer, tender, pledge, encumber, assign or otherwise dispose of (including by gift) (collectively, a “Transfer”); (B) enter into any contract, option, derivative, hedging or other agreement or arrangement or understanding (including any profit-sharing arrangement) with respect to, or consent to, a Transfer of, any or all of the Subject Stock; (C) grant any proxies or powers of attorney with respect to any or all of the Subject Stock; (D) permit to exist any lien of any nature whatsoever (other than those imposed by this Agreement, applicable securities Laws, the Company’s Organizational Documents, or the Stockholder Agreements (as defined below), in each case as in effect on the date hereof) with respect to any or all of the Subject Stock; or (E) take any action that would have the effect of preventing, impeding, interfering with or adversely affecting such Holder’s ability to perform its obligations under this Agreement; provided, however, that the foregoing restrictions shall not apply to any Transfer (a “Permitted Transfer”): (i) to any Affiliate of such Holder, including to any member, partner, stockholder, or other equity holder of such Holder, or to any family member or trust for the benefit of such Holder or such Holder’s family members, (ii) by will or intestate succession upon the death of such Holder, (iii) pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution of marriage or civil union, or (iv) with the prior written consent of SPAC (such consent not to be unreasonably withheld, conditioned or delayed); provided, further, that any Permitted Transfer shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to SPAC, to assume all of the obligations of such Holder under, and be bound by all of the terms of, this Agreement. The Company hereby agrees that it shall not permit any Transfer of the Subject Stock in violation of this Agreement. Each Holder agrees with, and covenants to, SPAC and the Company that such Holder shall not request that the Company register the Transfer (book-entry or otherwise) of any certificate or uncertificated share representing any Subject Stock during the term of this Agreement without the prior written consent of SPAC, and the Company hereby agrees that it shall not effect any such Transfer.
(b) Changes to Subject Stock. In the event of an equity distribution, or any change in the equity interests of the Company by reason of any equity distribution, equity split, recapitalization, combination, conversion, exchange of equity interests or the like, the term “Subject Stock” shall be deemed to refer to and include the Subject Stock as well as all such equity distributions and any securities into which or for which any or all of the Subject Stock may be changed or exchanged or which are received in such transaction. Each Holder agrees during the Voting Period to notify SPAC and the Company promptly in writing of the number and type of any changes to Holder’s ownership of or voting rights with respect to the Subject Stock, upon Holder’s acquisition or commitment to acquire any additional Subject Stock or upon any other changes involving Holder relating to the equity interests or securities convertible or exercisable for equity interests of the Company.
(c) Compliance with Merger Agreement. Each Holder agrees during the Voting Period not to take or agree or commit to take any action that would make any representation and warranty of such Holder contained in this Agreement inaccurate in any material respect. Each Holder further agrees that it shall use its commercially reasonable efforts to cooperate with SPAC to effect the Merger, all other Transactions, the Merger Agreement, the Ancillary Documents and the provisions of this Agreement. During the Voting Period, each Holder shall not authorize or permit any of its Representatives to, directly or indirectly, take any action that the Company is prohibited from taking pursuant to Section 5.2 of the Merger Agreement (unless SPAC shall have consented thereto). Notwithstanding the foregoing, (x) such Holder shall not be responsible for the actions of the Company or the board of directors of the Company (or any committee thereof), any subsidiary of the Company, or any officers, directors (in their capacity as such), employees and professional advisors of any of the foregoing (collectively, the “Company Related Parties”), (y) such Holder makes no representations or warranties with respect to the actions of any of the Company Related Parties and (z) any breach by the Company of its obligations under Section 5.2 of the Merger Agreement shall not in itself be considered a breach of this Agreement.
(d) Registration Statement. During the Voting Period, each Holder agrees to provide to SPAC, the Company and their respective Representatives any information regarding such Holder or the Subject Stock that is reasonably requested by SPAC, Company or their respective Representatives for inclusion in the Registration Statement.
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(e) Publicity. No Holder shall issue any press release or otherwise make any public statements with respect to the Transactions or the transactions contemplated herein without the prior written approval of the Company and SPAC. Each Holder hereby authorizes the Company and SPAC to publish and disclose in any announcement or disclosure required by the SEC, Nasdaq (or, if applicable, NYSE) or the Registration Statement (including all documents and schedules filed with the SEC in connection with the foregoing), such Holder’s identity and ownership of the Subject Stock and the nature of such Holder’s commitments and agreements under this Agreement, the Merger Agreement and any other Ancillary Documents.
4. Representations and Warranties of Holders. Each Holder, severally and not jointly, hereby represents and warrants to SPAC and the Company as follows:
(a) Binding Agreement. Such Holder (i) if a natural person, is of legal age to execute this Agreement and is legally competent to do so and (ii) if not a natural person, is (A) a corporation, limited liability company, company or partnership duly organized and validly existing under the laws of the jurisdiction of its organization and (B) has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. If such Holder is not a natural person, the execution and delivery of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby by such Holder has been duly authorized by all necessary corporate, limited liability or partnership action on the part of such Holder, as applicable. This Agreement, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of such Holder, enforceable against such Holder in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditor’s rights, and to general equitable principles). Such Holder understands and acknowledges that SPAC is entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by such Holder.
(b) Ownership of Subject Stock. As of the date hereof, such Holder has beneficial ownership over the Subject Stock set forth under such Holder’s name on the signature page hereto, is the lawful owner of such Subject Stock, has the sole power to vote or cause to be voted such Subject Stock (to the extent the Subject Stock have associated voting rights), and has good and valid title to such Subject Stock, free and clear of any and all pledges, mortgages, encumbrances, charges, proxies, voting agreements, liens, adverse claims, options, security interests and demands of any nature or kind whatsoever, other than those imposed by this Agreement, applicable securities Laws, the Company’s Organizational Documents, and, each of (i) the Amended and Restated Investors’ Rights Agreement, dated as of June 27, 2025 by and among the Company and the Company Securityholders party thereto, (ii) the Amended and Restated Right of First Refusal and Co-Sale Agreement, dated as of June 27, 2025, by and among the Company and the Company Securityholders party thereto and (iii) the Amended and Restated Voting Agreement, dated as of June 27, 2025 by and among the Company and the Company Securityholders party thereto, each as in effect on the date hereof (collectively, the “Stockholder Agreements”). There are no claims for finder’s fees or brokerage commission or other like payments in connection with this Agreement or the transactions contemplated hereby payable by such Holder pursuant to arrangements made by such Holder. Except for the Subject Stock of the Company set forth under such Holder’s name on the signature page hereto, as of the date of this Agreement, such Holder is not a beneficial owner or record holder of any: (i) equity securities of the Company, (ii) securities of the Company having the right to vote on any matters on which the holders of equity securities of the Company may vote or which are convertible into or exchangeable for, at any time, equity securities of the Company or (iii) options, warrants or other rights to acquire from the Company any equity securities or securities convertible into or exchangeable for equity securities of the Company.
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(c) No Conflicts. No filing with, or notification to, any Governmental Authority, and no consent, approval, authorization or permit of any other person is necessary for the execution of this Agreement by such Holder, the performance of its obligations hereunder or the consummation by it of the transactions contemplated hereby. None of the execution and delivery of this Agreement by such Holder, the performance of its obligations hereunder or the consummation by it of the transactions contemplated hereby shall (i) conflict with or result in any breach of the certificate of incorporation, bylaws or other comparable organizational documents of such Holder, if applicable, (ii) result in, or give rise to, a violation or breach of or a default under any of the terms of any Contract or obligation to which such Holder is a party or by which such Holder or any of the Subject Stock or its other assets may be bound, or (iii) violate any applicable Law or Order, except for any of the foregoing in clauses (i) through (iii) as would not reasonably be expected to impair such Holder’s ability to perform its obligations under this Agreement in any material respect.
(d) No Inconsistent Agreements. Holder hereby covenants and agrees that, except for this Agreement, Holder (i) has not entered into, nor will enter into at any time while this Agreement remains in effect, any voting agreement or voting trust with respect to the Subject Stock inconsistent with Holder’s obligations pursuant to this Agreement, (ii) has not granted, nor will grant at any time while this Agreement remains in effect, a proxy, a consent or power of attorney with respect to the Subject Stock and (iii) has not entered into any agreement or knowingly taken any action (nor will enter into any agreement or knowingly take any action) that would make any representation or warranty of Holder contained herein untrue or incorrect in any material respect or have the effect of preventing Holder from performing any of its material obligations under this Agreement.
(e) Adequate Information. Such Holder has been furnished or given access to adequate information concerning the business and financial condition of SPAC and the Company to make an informed decision regarding this Agreement and the Transactions and has independently and without reliance upon SPAC or the Company and based on such information as such Holder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Holder acknowledges that SPAC and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Holder acknowledges that the agreements contained herein with respect to the Subject Stock held by such Holder are irrevocable and result in the waiver of any right of the undersigned to demand appraisal in connection with the Merger under Section 262 of the General Corporation Law of the State of Delaware and any other Law.
(f) Litigation. There are no Actions pending against such Holder or, to the knowledge of such Holder, threatened in writing against such Holder, before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Authority, which would reasonably be expected to prevent, enjoin or materially delay the performance by such Holder of its obligations under this Agreement.
(g) Brokerage Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by such Holder in his, her or its capacity as a stockholder of the Company, for which the Company or any of its Affiliates may become liable.
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(h) Acknowledgement. Such Holder understands and acknowledges that each of the SPAC and the Company is entering into the Merger Agreement in reliance upon the Holder’s execution and delivery of this Agreement.
5. Miscellaneous.
(a) Termination. Notwithstanding anything to the contrary contained herein, this Agreement shall automatically terminate, and none of SPAC, the Company or any Holder shall have any rights or obligations hereunder, upon the earliest to occur of (i) as to each Holder, upon the mutual written consent of such Holder, SPAC and the Company, (ii) the Effective Time (following the performance of the obligations of the parties hereunder required to be performed at or prior to the Effective Time), and (iii) the date of termination of the Merger Agreement in accordance with its terms. The termination of this Agreement shall not prevent any party hereunder from seeking any remedies (at law or in equity) against another party hereto or relieve such party from liability for such party’s willful breach of any terms of this Agreement. Notwithstanding anything to the contrary herein, the provisions of this Section 5 shall survive the termination of this Agreement.
(b) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement and all obligations of Holder are personal to Holder and may not be assigned, transferred or delegated by operation of Law or otherwise without the prior written consent of SPAC and the Company, and any purported assignment, transfer or delegation without such consent shall be null and void; provided that no such assignment shall relieve the assigning party of its obligations hereunder. Each of the Company and SPAC may freely assign any or all of its rights under this Agreement, in whole or in part, to any successor entity (whether by merger, consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of Holder.
(c) Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person that is not a party hereto or thereto or a successor or permitted assign of such a party.
(d) Governing Law; Jurisdiction. This Agreement and any dispute or controversy arising out of or relating to this Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of Delaware without regard to the conflict of laws principles thereof. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware in and for New Castle County, Delaware or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court (or, in each case, any appellate courts thereof) (the “Specified Courts”). Each party hereto hereby (a) submits to the exclusive jurisdiction of any Specified Courts for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the Specified Courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Courts. Each party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to the service of the summons and complaint and any other process in any other Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such party at the applicable address set forth in Section 6(g) (and in the case of Holder, the address set forth on such Holder’s signature page). Nothing in this Section 6(d) shall affect the right of any party to serve legal process in any other manner permitted by Law.
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(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6(e).
(f) Interpretation. The titles and subtitles contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs, including any defined terms, include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; (iv) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; and (v) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(g) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person, (b) by email with affirmative confirmation of receipt, (c) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (d) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
If to SPAC, to:
Newbury Street II Acquisition Corp 121 High Street, Floor 3 Boston, Massachusetts 02110 Attn: Thomas Bushey Telephone No.: (617) 334-2805 Email: [***] |
with a copy (which will not constitute notice) to:
Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas, 11th Floor New York, New York 10105 Attn: Matthew A. Gray, Esq. Barry I. Grossman, Esq. Telephone No.: (212) 370-1300 Email: [***] [***] |
If to the Company, to:
Fort Robotics, Inc. 1608 Walnut St. 12th Floor Philadelphia, PA 19103 Attn: Samuel Reeves Telephone: 267-515-5880 Email: [***] |
with a copy (which will not constitute notice) to:
Fenwick & West LLP 902 Broadway 18th Floor New York, NY 10010 Attn: Aman D. Singh Telephone No.: 212-430-2600 Email: [***] |
| If to a Holder, to: the address set forth under such Holder’s name on the signature page hereto, with a copy (which will not constitute notice) to, if not the party sending the notice, each of the Company and SPAC (and each of their copies for notices hereunder). | |
(h) 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 SPAC, the Company and each Holder. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. 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.
(i) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
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(j) Specific Performance. Each Holder acknowledges that its obligations under this Agreement are unique, recognizes and affirms that in the event of a breach of this Agreement by such Holder, money damages will be inadequate and the Company and SPAC will not have an adequate remedy at law, and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by such Holder in accordance with their specific terms or were otherwise breached. Accordingly, the Company and SPAC shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement by any such Holder and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity.
(k) Expenses. Each party shall be responsible for its own fees and expenses (including the fees and expenses of investment bankers, accountants and counsel) in connection with the entering into of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby; provided, that in the event of any Action arising out of or relating to this Agreement, the non-prevailing party in any such Action will pay its own expenses and the reasonable documented out-of-pocket expenses, including reasonable attorneys’ fees and costs, reasonably incurred by the prevailing party.
(l) No Partnership, Agency or Joint Venture. This Agreement is intended to create a contractual relationship among each Holder, the Company and SPAC, and is not intended to create, and does not create, any agency, partnership, joint venture or any like relationship among the parties hereto or among any other Company Stockholders entering into voting agreements with the Company or SPAC. No Holder is affiliated with any other holder of Subject Stock entering into a voting or support agreement with the Company or SPAC in connection with the Merger Agreement and Holder has acted independently regarding its decision to enter into this Agreement. Nothing contained in this Agreement shall be deemed to vest in the Company or SPAC any direct or indirect ownership or incidence of ownership of or with respect to any Subject Stock. Notwithstanding any other provision of this Agreement, in no event will any Holder be liable for any other Holder’s breach of such other Holder’s representations, warranties, covenants, or agreements contained in this Agreement.
(m) Further Assurances. From time to time, at another party’s request and without further consideration, each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(n) Capacity as Stockholder. Each Holder signs this Agreement solely in its capacity as a stockholder of the Company, and not, if applicable, in its capacity as a director or officer of the Company. Nothing herein shall in any way restrict a director or officer of the Company in the taking of any actions (or failure to act) in his or her capacity as a director or officer of the Company, or in the exercise of his or her fiduciary duties as a director or officer of the Company, or prevent or be construed to create any obligation on the part of any director or officer of the Company from taking any action in his or her capacity as such director or officer, and no action taken in any such capacity as an officer or director of the Company shall be deemed to constitute a breach of this Agreement.
(o) Entire Agreement. This Agreement (together with the Merger Agreement to the extent referred to herein) 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; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Merger Agreement or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of SPAC or any of the obligations of any Holder under any other agreement between such Holder and SPAC or any certificate or instrument executed by such Holder in favor of SPAC, and nothing in any other agreement, certificate or instrument shall limit any of the rights or remedies of SPAC or any of the obligations of such Holder under this Agreement.
(p) Counterparts. This Agreement may be executed and delivered (including by facsimile, portable document format or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Voting and Support Agreement as of the date first written above.
| SPAC: | ||
| NEWBURY STREET II ACQUISITION CORP | ||
| By: | /s/ Thomas Bushey | |
| Name: | Thomas Bushey | |
| Title: | Chief Executive Officer | |
| The Company: | ||
| FORT ROBOTICS, INC. | ||
| By: | /s/ Samuel Reeves | |
| Name: | Samuel Reeves | |
| Title: | Chief Executive Officer | |
[Signature Pages Continue]
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| Holder: | ||
| By: | ||
| Name: | ||
| Address for Notice: | ||
| Address: | ||
| Telephone No.: | ||
| Email: |
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Schedule A
Schedule A-1
| Name of Holder | Address | Company Common Stock |
Schedule A-2
| Name of Holder | Address | Company FF Preferred Stock | Series Seed Junior Prime Preferred Stock | Series Seed 2 Junior Prime Preferred Stock | Series B Junior Prime Preferred Stock | Series B Senior Prime Preferred Stock | Series B-1 Preferred Stock | Series B-2 Preferred Stock |
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Exhibit 10.2
EXECUTION VERSION
CERTAIN INFORMATION HAS BEEN REDACTED FROM THIS EXHIBIT (A) BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL OR (B) IN ACCORDANCE WITH ITEM 601(A)(6) OF REGULATION S-K DUE TO PERSONAL PRIVACY CONCERNS. INFORMATION THAT HAS BEEN SO REDACTED FROM THIS EXHIBIT HAS BEEN MARKED WITH “[***]” TO INDICATE THE OMISSION.
FORM OF LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”) is made and entered into as of August 17, 2026 by and between (i) Newbury Street II Acquisition Corp, a Cayman Islands exempted company (together with its successors, including after giving effect to the Domestication (as defined below), “SPAC”) and (ii) the undersigned (“Holder”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Merger Agreement (as defined below).
WHEREAS, on or about the date hereof, (i) SPAC, (ii) Fort Robotics, Inc., a Delaware corporation (the “Company”), and (iii) Hugo Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of SPAC (“Merger Sub”), entered into that certain Agreement and Plan of Merger (as may be amended, modified, supplemented and/or restated from time to time in accordance with the terms thereof, the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement, upon consummation of the transactions contemplated by the Merger Agreement (the “Transactions”), among other matters, (a) SPAC will continue out of the Cayman Islands and become domesticated as a corporation in the state of Delaware (the “Domestication”), (b) Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving such merger as a wholly-owned subsidiary of SPAC (the “Surviving Corporation”), and (c) as a result of which, all of the issued and outstanding capital stock of the Company as of immediately prior to the Effective Time shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, in exchange for the right to receive its pro rata share of the Merger Consideration as set forth in the Merger Agreement, all upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with applicable Law;
WHEREAS, as of the date hereof, Holder is a holder of Company Securities in such amounts and classes or series as set forth underneath Holder’s name on the signature page hereto; and
WHEREAS, pursuant to the Merger Agreement, and in view of the valuable consideration to be received by Holder thereunder, the parties desire to enter into this Agreement, pursuant to which the Merger Consideration Shares received by Holder in the Transactions (all such securities, together with any securities paid as dividends or distributions with respect to such securities or into which such securities are exchanged or converted, the “Restricted Securities”), shall become subject to the restrictions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Lock-Up Provisions.
(a) Subject to Sections 1(b) and 1(f) of this Agreement, Holder hereby agrees not to, during the period (the “Lock-Up Period”) commencing from the Closing and ending on the earlier of (x) the one-year anniversary after the date of the Closing, (y) the date upon which the last reported sale price of SPAC Common Stock equals or exceeds $12.00 per share (as equitably adjusted for share subdivisions, share consolidations, share capitalizations, stock splits, stock dividends, reorganizations and recapitalizations and the like) for any twenty (20) Trading Days within any consecutive thirty (30) Trading Day period, commencing at least one-hundred and fifty (150) days after the Closing, and (z) the date after the Closing upon which SPAC completes a liquidation, merger, stock exchange, reorganization or other similar transaction with an unaffiliated third party that results in all of SPAC’s stockholders having the right to exchange their equity holdings in SPAC for cash, securities or other property: (A) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or enter into any agreement to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the SEC promulgated thereunder with respect to, any Restricted Securities, (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 any Restricted Securities, or (C) publicly announce any intention to effect any transaction specified in clause (A) or (B) (any of the foregoing described in clauses (A) and (B), a “Prohibited Transfer”).
(b) The restrictions set forth in Sections 1(a) and 1(e) (the “Lock-Up Restrictions”) shall not apply to the transfer or other disposition of any or all of the Restricted Securities owned by Holder (I) by gift or charitable contribution; (II) by will or other testamentary document or intestate succession upon the death of Holder; (III) to any Permitted Transferee (as defined below); (IV) pursuant to a court order or settlement agreement or other domestic order related to the distribution of assets in connection with the dissolution of marriage or civil union or other Order by a Governmental Authority; (V-1) as a pledge or other grant of a security interest in Restricted Securities to one or more bona fide financial institutions as collateral or security for any bona fide loans, advances, extensions of credit or other debt transaction entered into by Holder, provided, that any such financial institution to whom the Restricted Securities are pledged, or to whom a security interest is granted, acknowledges and agrees in writing that the Restricted Securities are subject to this Agreement and that any such financial institution shall not be entitled to enforce its rights and remedies with respect to the Restricted Securities, including, without limitation, the right to vote, sell or take ownership of such Restricted Securities, until after the Lock-Up Period and any foreclosure, sale or other transfer by any such financial institution of any Restricted Securities during the Lock-Up Period shall constitute a Prohibited Transfer; (V-2) in the case of an investment fund credit facility, as a pledge or other grant of a security interest in Restricted Securities to one or more bona fide financial institutions as collateral or security (but constituting not more than 1/3 of the total value of such pool of collateral or security) for any bona fide loans, advances, extensions of credit or other debt transaction (or enforcement thereunder) entered into by Holder or any of its affiliates, or any refinancings thereof, and any transfers of such Restricted Securities upon foreclosure thereof, so long as the applicable transferee agrees in writing to be bound by the restrictions set forth herein; (VI) to SPAC pursuant to any contractual arrangement in effect on the date of this Agreement that provides for the repurchase of shares of SPAC Common Stock in connection with the termination of the Holder’s employment with or service to SPAC; (VII) to satisfy tax withholding obligations in connection with the exercise of options to purchase shares of SPAC Common Stock or the vesting or settlement of stock-based awards of SPAC; or (VIII) in payment on a “net exercise” or “cashless” basis of the exercise or purchase price with respect to the exercise of options to purchase shares of SPAC Common Stock; provided, however, that in any of cases (I), (II), (III), (IV), (V-1) or (V-2), it shall be a condition to such transfer that the transferee executes and delivers to SPAC an agreement stating that the transferee is receiving and holding the Restricted Securities subject to the provisions of this Agreement applicable to Holder, and there shall be no further transfer of such Restricted Securities except in accordance with this Agreement; provided further, that a Holder may establish a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act so long as such plan does not provide for the transfer of Restricted Securities during the Lock-Up Period. Notwithstanding the foregoing, SPAC and the Company may mutually agree that certain of the Restricted Securities may be released from Lock-Up Restrictions to the extent reasonably necessary, and as mutually agreed upon by SPAC and the Company, in order for SPAC to meet the exchange listing standards in connection with the listing of SPAC Common Stock on Nasdaq or NYSE upon the Closing (an “Exchange Release”). As used in this Agreement, the term “Permitted Transferee” shall mean: (i) the members of Holder’s immediate family (for purposes of this Agreement, “immediate family” shall mean with respect to any natural person, any of the following: such person’s spouse or domestic partner, the siblings of such person and his or her spouse or domestic partner, and the direct descendants and ascendants (including adopted and step children and parents) of such person and his or her spouses and siblings), (ii) any trust, or other entity formed for estate planning purposes, for the direct or indirect benefit of Holder or the immediate family of Holder, (iii) if Holder is a trust, the trustor or beneficiary of such trust or to the estate of a beneficiary of such trust, (iv) if Holder is an entity, to limited partners, shareholders, members of, or owners of similar equity interests in Holder, including, for the avoidance of doubt, where Holder is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership, (v) any affiliate of Holder, (vi) a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under this Section 1(b) and (vii) a charitable organization. Holder further agrees to execute such agreements as may be reasonably requested by SPAC that are consistent with the foregoing or that are necessary to give further effect thereto.
(c) If any Prohibited Transfer is made or attempted contrary to the provisions of this Agreement, such purported Prohibited Transfer shall be null and void ab initio, and SPAC shall, and any duly appointed transfer agent for the registration or transfer of the securities described herein is hereby authorized to, refuse to recognize any such purported transferee of the Restricted Securities as one of its equity holders for any purpose. In order to enforce this Section 1, SPAC may impose stop-transfer instructions with respect to the Restricted Securities of Holder (and Permitted Transferees and assigns thereof) until the end of the Lock-Up Period.
(d) During the Lock-Up Period, each certificate (or book entry statement) evidencing any Restricted Securities shall be stamped or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF AUGUST 19, 2026, BY AND BETWEEN THE ISSUER OF SUCH SECURITIES (THE “ISSUER”) AND THE ISSUER’S SECURITY HOLDER NAMED THEREIN, AS AMENDED. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
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(e) For the avoidance of any doubt, Holder shall retain all of its rights as a stockholder of SPAC during the Lock-Up Period, including the right to vote any Restricted Securities.
(f) For the avoidance of any doubt, the Lock-Up Restrictions shall not apply to any shares of SPAC Common Stock acquired (x) in the public market, (y) pursuant to the Initial PIPE Subscription Agreements or other subscription agreements pursuant to which the Holder agrees to subscribe for and purchase shares of SPAC Common Stock and such purchases occur immediately prior to, or substantially concurrently with the Closing or (z) pursuant to any Company SAFEs outstanding immediately prior to the Closing.
2. Miscellaneous.
(a) Termination of Merger Agreement. This Agreement shall be binding upon Holder upon Holder’s execution and delivery of this Agreement, but this Agreement shall only become effective upon the Closing. Notwithstanding anything to the contrary contained herein, in the event that the Merger Agreement is terminated in accordance with its terms prior to the Closing, this Agreement and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
(b) Binding Effect; Assignment. Each of the parties hereto represents and warrants that such party has full power and authority to enter into this Agreement and further agrees that this Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement and all obligations of Holder are personal to Holder and may not be transferred or delegated by Holder at any time without the prior written consent of SPAC. SPAC may freely assign any or all of its rights under this Agreement, in whole or in part, to any successor entity (whether by merger, consolidation, equity sale, asset sale or otherwise) without obtaining the consent or approval of Holder.
(c) Third Parties. Except as provided in Sections 2(b) and 2(h) and this Section 2(c), nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a party hereto or thereto or a successor or permitted assign of such a party. Notwithstanding the foregoing, each of the parties hereto hereby acknowledges and agrees that Sponsor is a third-party beneficiary of this Agreement for purposes of Sections 2(b) and 2(h).
(d) Governing Law; Jurisdiction. This Agreement and any dispute or controversy arising out of or relating to this Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of Delaware without regard to the conflict of laws principles thereof. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware in and for New Castle County, Delaware or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court (or, in each case, any appellate courts thereof) (the “Specified Courts”). Each party hereto hereby (i) submits to the exclusive jurisdiction of any Specified Court for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto and (ii) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the Specified Courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Court. Each party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to the service of the summons and complaint and any other process in any other Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such party at the applicable address set forth in Section 2(g). Nothing in this Section 2(d) shall affect the right of any party to serve legal process in any other manner permitted by Law.
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(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 2(e).
(f) Interpretation. The titles and subtitles contained in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(g) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person, (b) by email with affirmative confirmation of receipt, (c) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (d) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
If to SPAC at or prior to the Closing, to:
Newbury
Street II Acquisition Corp Boston,
Massachusetts 02110 Email: [***] |
With a copy (which will not constitute notice) to:
Ellenoff
Grossman & Schole LLP Matthew A. Gray, Esq. Facsimile No.: (212) 370-7889 Email: [***]; [***] |
If to SPAC after the Closing, to:
1608 Walnut St. 12th Floor Philadelphia,
PA 19103 Telephone No.: 267-515-5880 Email: [***]
|
with copies (which will not constitute notice) to:
Fenwick & West LLP 902 Broadway 18th Floor New York, NY 10010 Attn: Aman D. Singh Telephone
No.: 212-430-2600 |
| If to Holder, to: the address set forth below Holder’s name on the signature page to this Agreement. | |
(h) 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 SPAC, Holder and, from and after the Closing, Sponsor. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. 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. In the event that (i) the Company, SPAC or Sponsor enters into any Lock-Up Agreement with a Significant Company Holder, or amends any existing Significant Company Holder’s Lock-Up Agreement, or waives any Lock-Up Restrictions therein (including to effect an Exchange Release), to include terms materially more favorable to any other Significant Company Holder, or (ii) the Company or SPAC amends the lock-up provisions of that certain letter agreement, dated as of October 31, 2024 (as amended on or about the date hereof by that certain Amendment to Letter Agreement, the “Insider Letter”), by and among the SPAC, Sponsor and certain officers and directors of SPAC (collectively, the “Insiders”), or waives any restrictions therein, to include terms materially more favorable to any of the Insiders, then the Company, SPAC or Sponsor, as applicable, shall amend this Agreement, or waive the applicable Lock-Up Restrictions, to incorporate such more materially favorable terms; provided, that, for the avoidance of doubt, the foregoing clause (ii) shall not apply to any amendment to, or waiver of, the transfer restrictions applicable to Founder Shares that are actually used to secure commitments from investors for Initial PIPE Financing or any other Transaction Financing.
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(i) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
(j) Specific Performance. Holder acknowledges that its obligations under this Agreement are unique, recognizes and affirms that in the event of a breach of this Agreement by Holder, money damages will be inadequate and SPAC will have no adequate remedy at law, and agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by Holder in accordance with their specific terms or were otherwise breached. Accordingly, SPAC shall be entitled to an injunction or restraining order to prevent breaches of this Agreement by Holder and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity.
(k) Entire Agreement. This Agreement 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; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Merger Agreement or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of SPAC or any of the rights, remedies or obligations of Holder under any other agreement between Holder and SPAC or any certificate or instrument executed by Holder in favor of SPAC, and nothing in any other agreement, certificate or instrument shall limit any of the rights, remedies or obligations of SPAC or any of the rights, remedies or obligations of Holder under this Agreement.
(l) Further Assurances. From time to time, at another party’s request and without further consideration (but at the requesting party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(m) Counterparts. This Agreement may be executed and delivered (including by facsimile, portable document format or other electronic transmission) in two or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
{Remainder of Page Intentionally Left Blank; Signature Pages Follow}
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IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
| SPAC: | ||
| NEWBURY STREET II ACQUISITION CORP | ||
| By: | /s/ Thomas Bushey | |
| Name: | Thomas Bushey | |
| Title: | Chief Executive Officer | |
{Additional Signature on the Following Page}
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IN WITNESS WHEREOF, the parties have executed this Lock-Up Agreement as of the date first written above.
Holder:
Name of Holder: [____________________]
| By: | ||
| Name: | ||
| Title: |
Number and Type of Shares of Company Securities:
| Company Common Stock: |
| Company FF Preferred Stock: |
| Company Series Seed Junior Prime Preferred Stock: |
| Company Series Seed 2 Junior Prime Preferred Stock: |
| Company Series B Junior Prime Preferred Stock: | ||
| Company Series B Senior Prime Preferred Stock: |
| Company Series B-1 Preferred Stock: | ||
| Company Series B-2 Preferred Stock: |
| Address for Notice: | ||
| Address: | ||
| Telephone No.: | ||
| Email: |
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Exhibit 10.3
EXECUTION VERSION
CERTAIN INFORMATION HAS BEEN REDACTED FROM THIS EXHIBIT (A) BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL OR (B) IN ACCORDANCE WITH ITEM 601(A)(6) OF REGULATION S-K DUE TO PERSONAL PRIVACY CONCERNS. INFORMATION THAT HAS BEEN SO REDACTED FROM THIS EXHIBIT HAS BEEN MARKED WITH “[***]” TO INDICATE THE OMISSION.
FORM OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT
THIS NON-COMPETITION AND NON-SOLICITATION AGREEMENT (this “Agreement”) is being executed and delivered as of August 17, 2026, by __________ (the “Subject Party”) in favor of and for the benefit of Newbury Street II Acquisition Corp, a Cayman Islands exempted company (together with its successors, including after giving effect to the Domestication (as defined below), the “SPAC”), Fort Robotics, Inc., a Delaware corporation (together with its successors, the “Company”), and each of SPAC’s and/or the Company’s respective present and future Affiliates, successors and direct and indirect Subsidiaries (collectively with SPAC and the Company, the “Covered Party” or “Covered Parties”.. Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Merger Agreement (as defined below).
WHEREAS, on or about the date hereof, (i) SPAC, (ii) Hugo Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of SPAC (“Merger Sub”), and (iii) the Company, have entered into that certain Agreement and Plan of Merger (as may be amended, modified, supplemented and/or restated from time to time in accordance with the terms thereof, the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions thereof, upon consummation of the transactions (the “Transactions”) contemplated by the Merger Agreement (the “Closing”), among other matters, (a) SPAC will continue out of the Cayman Islands and become domesticated as a corporation in the state of Delaware (the “Domestication”), and (b) Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving such merger as a wholly-owned subsidiary of SPAC, and as a result of which all of the issued and outstanding capital stock of the Company as of immediately prior to the effective time of the Merger shall no longer be outstanding and shall automatically be cancelled in exchange for which the security holders of the Company shall have the right to receive shares of common stock of SPAC, in accordance with the applicable provisions of the DGCL, and all upon the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS, the Company (and after the consummation of the Transactions, SPAC), directly and indirectly through its Subsidiaries, engages in the business of the development and provision of safety-certified control and secure communication systems for autonomous and semi-autonomous machines operating in physical environments (collectively, the “Business”);
WHEREAS, in connection with, and as a condition to the execution and delivery of the Merger Agreement and the consummation of the Transactions, and to enable SPAC to secure more fully the benefits of the Transactions, including the protection and maintenance of the goodwill and confidential information of the Company and its Subsidiaries, SPAC has required that the Subject Party enter into this Agreement;
WHEREAS, the Subject Party is entering into this Agreement in order to induce SPAC to enter into the Merger Agreement and consummate the Transactions, pursuant to which the Subject Party will directly or indirectly receive a material benefit; and
WHEREAS, the Subject Party, as a former and/or current stockholder, director, officer or employee of the Company or its Affiliates, has contributed to the value of the Company and its Subsidiaries and has obtained extensive and valuable knowledge and confidential information concerning the business of the Company and its Subsidiaries.
NOW, THEREFORE, in order to induce SPAC to enter into the Merger Agreement and consummate the Transactions, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Subject Party hereby agrees as follows:
1. Restriction on Competition.
(a) Restriction. The Subject Party hereby agrees that during the period from the Closing until the two (2) year anniversary of the Closing Date (the “Restricted Period”), the Subject Party will not, and will cause his, her or its Affiliates not to, without the prior written consent of SPAC (which may be withheld in its sole discretion), anywhere in the United States of America or in any other market in which the Covered Parties operate the Business during the Restricted Period, or are actively preparing to become engaged, in the Business as of the Closing Date or during the Restricted Period (the “Territory”), directly or indirectly engage in the Business (other than through a Covered Party) or own, manage, finance or control, or participate in the ownership, management, financing or control of, or become engaged or serve as an officer, director, member, partner, employee, agent, consultant, contractor advisor or representative of, a business or entity (other than a Covered Party) that engages in the Business (a “Competitor”). Notwithstanding the foregoing, the Subject Party and his, her or its Affiliates may own passive investments of no more than two percent (2%) of any class of outstanding equity interests in a Competitor that is publicly traded, so long as the Subject Party and his, her or its Affiliates and immediate family members are not involved in the management or control of such Competitor (“Permitted Ownership”).
(b) Acknowledgment. The Subject Party acknowledges and agrees, based upon the advice of legal counsel and/or the Subject Party’s own education, experience and training, that: (i) the Subject Party possesses knowledge of confidential information of the Company and its Subsidiaries and the Business, (ii) the Subject Party’s execution of this Agreement is a material inducement to SPAC and the Company to consummate the Transactions and to realize the goodwill of the Company and its Subsidiaries, for which the Subject Party and/or his, her or its Affiliates will receive a substantial direct or indirect financial benefit, which the Subject Party agrees constitutes adequate consideration for entering into this Agreement, and that SPAC and the Company would not have entered into the Merger Agreement or consummated the Transactions but for the Subject Party’s agreements set forth in this Agreement; (iii) it would impair the goodwill of the Company and its Subsidiaries and reduce the value of the assets of the Company and its Subsidiaries and cause serious and irreparable injury if the Subject Party were to use his, her or its ability and knowledge by engaging in the Business in competition with a Covered Party, and/or to otherwise breach the obligations contained herein, and that the Covered Parties would not have an adequate remedy at law because of the unique nature of the Business, (iv) the Subject Party and its Affiliates have no intention of engaging in the Business (other than through the Covered Parties) during the Restricted Period other than through Permitted Ownership, (v) the relevant public policy aspects of restrictive covenants, covenants not to compete and non-solicitation provisions have been discussed, and every effort has been made to limit the restrictions placed upon the Subject Party to those that are reasonable and necessary to protect the Covered Parties’ legitimate interests, (vi) the Covered Parties conduct and intend to conduct the Business in the Territory and compete with other businesses that are or could be located in any part of the Territory, (vii) the foregoing restrictions on competition are fair and reasonable in type of prohibited activity, geographic area covered, scope and duration, (viii) the consideration provided to the Subject Party under this Agreement and the Merger Agreement is not illusory, and (ix) such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Covered Parties.
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2. No Solicitation; No Disparagement.
(a) No Solicitation of Employees and Consultants. The Subject Party agrees that, during the Restricted Period, the Subject Party and his, her or its Affiliates will not, without the prior written consent of SPAC (which may be withheld in its sole discretion), either on its own behalf or on behalf of any other Person (other than, if applicable, a Covered Party in the performance of the Subject Party’s duties on behalf of the Covered Parties), directly or indirectly: (i) hire or engage as an employee, independent contractor, consultant or otherwise any Covered Personnel (as defined below); (ii) solicit, induce, encourage or otherwise knowingly cause (or attempt to do any of the foregoing) any Covered Personnel to leave the service (whether as an employee, consultant or independent contractor) of any Covered Party; or (iii) in any way interfere with or attempt to interfere with the relationship between any Covered Personnel and any Covered Party; provided, however, the Subject Party and his, her or its Affiliates will not be deemed to have violated this Section 2(a) if any Covered Personnel voluntarily and independently solicits an offer of employment from the Subject Party or his, her or its Affiliate (or other Person whom any of them is acting on behalf of) by responding to a general advertisement or solicitation program conducted by or on behalf of the Subject Party or his, her or its Affiliate (or such other Person whom any of them is acting on behalf of) that is not targeted at such Covered Personnel or Covered Personnel generally. For purposes of this Agreement, “Covered Personnel” shall mean any Person who is or was an employee, consultant or independent contractor of the Covered Parties, as of such date of the relevant act prohibited by this Section 2(a) or during the one (1) year period preceding such date.
(b) Non-Solicitation of Customers and Suppliers. The Subject Party agrees that, during the Restricted Period, the Subject Party and his, her or its Affiliates will not, directly or indirectly, without the prior written consent of SPAC (which may be withheld in its sole discretion), individually or on behalf of any other Person (other than, if applicable, a Covered Party in the performance of the Subject Party’s duties on behalf of the Covered Parties), directly or indirectly: (i) solicit, induce, encourage or otherwise knowingly cause (or attempt to do any of the foregoing) any Covered Customer (as defined below) to (A) cease being, or not become, a client or customer of any Covered Party with respect to the Business or (B) reduce the amount of business of such Covered Customer with any Covered Party, or otherwise alter such business relationship in a manner adverse to any Covered Party, in either case, with respect to or relating to the Business; (ii) interfere with or disrupt (or attempt to interfere with or disrupt) the contractual relationship between any Covered Party and any Covered Customer; (iii) divert any business with any Covered Customer relating to the Business from a Covered Party; (iv) solicit for business, provide services to, engage in or do business with, any Covered Customer for products or services that are part of the Business; or (v) interfere with or disrupt (or attempt to interfere with or disrupt), any Person that was a vendor, supplier, distributor, agent or other service provider of a Covered Party at the time of such interference or disruption, for a purpose competitive with a Covered Party as it relates to the Business. For purposes of this Agreement, a “Covered Customer” shall mean any Person who is or was an actual customer or client (or prospective customer or client with whom a Covered Party actively marketed or made or taken specific action to make a proposal) of a Covered Party, as of such date hereof or during the one (1) year period preceding such date.
(c) Non-Disparagement. The Subject Party agrees that from and after the Closing until the end of the Restricted Period, the Subject Party and its Affiliates will not, directly or indirectly engage in any conduct that involves the making or publishing (including through electronic mail distribution or online social media) of any written or oral statements or remarks (including the repetition or distribution of derogatory rumors, allegations, negative reports or comments) that are disparaging, deleterious or damaging to the integrity, reputation or good will of one or more Covered Parties or their respective management, officers, employees, independent contractors or consultants. Notwithstanding the foregoing, subject to Section 3 below, the provisions of this Section 2(c) shall not restrict the Subject Party or its Affiliates from providing truthful testimony or information in response to a subpoena or investigation by a Governmental Authority or in connection with any legal action by the Subject Party or its Affiliate against any Covered Party under this Agreement, the Merger Agreement or any other Ancillary Document that is asserted by the Subject Party or its Affiliate in good faith.
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3. Confidentiality. From and after the Closing Date, the Subject Party will, and will cause his, her or its Representatives to, keep confidential and not (except, if applicable, in the performance of the Subject Party’s duties on behalf of the Covered Parties) directly or indirectly use, disclose, reveal, publish, transfer or provide access to, any and all Covered Party Information without the prior written consent of SPAC (which may be withheld in its sole discretion). As used in this Agreement, “Covered Party Information” means all material and information relating to the business, affairs and assets of any Covered Party, including material and information that concerns or relates to such Covered Party’s bidding and proposal, technical information, computer hardware or software, administrative, management, operational, data processing, financial, marketing, customers, sales, human resources, employees, vendors, business development, planning and/or other business activities, regardless of whether such material and information is maintained in physical, electronic, or other form, that is: (a) gathered, compiled, generated, produced or maintained by such Covered Party through its Representatives, or provided to such Covered Party by its suppliers, service providers or customers; and (b) intended and maintained by such Covered Party or its Representatives, suppliers, service providers or customers to be kept in confidence. Covered Party Information also includes information disclosed to any Covered Party by a third party to the extent that a Covered Party has an obligation of confidentiality in connection therewith. The obligations set forth in this Section 3 will not apply to any Covered Party Information where the Subject Party can prove that such material or information: (i) is known or available through other lawful sources not bound by a confidentiality agreement or other confidentiality obligation with respect to such material or information; (ii) is or becomes publicly known through no violation of this Agreement or other non-disclosure obligation of the Subject Party or any of its Representatives; (iii) is already in the possession of the Subject Party at the time of disclosure through lawful sources not bound by a confidentiality agreement or other confidentiality obligation as evidenced by the Subject Party’s documents and records; or (iv) is required to be disclosed pursuant to an order of any administrative body or court of competent jurisdiction (provided that (A) the applicable Covered Party is given reasonable prior written notice, (B) the Subject Party cooperates (and causes its Representatives to cooperate) with any reasonable request of any Covered Party to seek to prevent or narrow such disclosure and (C) if after compliance with clauses (A) and (B) such disclosure is still required, the Subject Party and its Representatives only disclose such portion of the Covered Party Information that is expressly required by such order, as it may be subsequently narrowed).
4. Representations and Warranties. The Subject Party hereby represents and warrants, to and for the benefit of the Covered Parties as of the date of this Agreement and as of the Closing Date, that: (a) the Subject Party has full power and capacity to execute and deliver, and to perform all of the Subject Party’s obligations under, this Agreement; and (b) neither the execution and delivery of this Agreement nor the performance of the Subject Party’s obligations hereunder will result directly or indirectly in a violation or breach of any agreement or obligation by which the Subject Party is a party or otherwise bound. By entering into this Agreement, the Subject Party certifies and acknowledges that the Subject Party has carefully read all of the provisions of this Agreement, and that the Subject Party voluntarily and knowingly enters into this Agreement.
5. Remedies. The covenants and undertakings of the Subject Party contained in this Agreement relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Agreement may cause irreparable injury to the Covered Parties, the amount of which may be impossible to estimate or determine and which cannot be adequately compensated. The Subject Party agrees that, in the event of any breach or threatened breach by the Subject Party of any covenant or obligation contained in this Agreement, each applicable Covered Party will be entitled to seek(in addition to, and not in lieu of, any other remedy at law or in equity or pursuant to the Merger Agreement or the other Ancillary Documents that may be available to the Covered Parties, including monetary damages), and a court of competent jurisdiction may award: (a) an injunction, restraining order or other equitable relief restraining or preventing such breach or threatened breach, without the necessity of proving actual damages or that monetary damages would be insufficient or posting bond or security, which the Subject Party expressly waives; and (b) recovery of the Covered Party’s attorneys’ fees and costs incurred in enforcing the Covered Party’s rights under this Agreement. The Subject Party hereby consents to the award of any of the above remedies to the applicable Covered Party in connection with any such breach or threatened breach. The Subject Party hereby acknowledges and agrees that in the event of any breach of this Agreement, any value attributed or allocated to this Agreement (or any other non-competition agreement with the Subject Party) under or in connection with the Merger Agreement shall not be considered a measure of, or a limit on, the damages of the Covered Parties.
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6. Survival of Obligations. The expiration of the Restricted Period will not relieve the Subject Party of any obligation or liability arising from any breach by the Subject Party of this Agreement during the Restricted Period. The Subject Party further agrees that the time period during which the covenants contained in Section 1 and Section 2 of this Agreement will be effective will be computed by excluding from such computation any time during which the Subject Party is in violation of any provision of such Sections.
7. Miscellaneous.
(a) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person, (b) by email with affirmative confirmation of receipt, (c) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (d) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
| If to SPAC at or prior to the Closing, to: Newbury Street II Acquisition Corp 121 High Street, Floor 3 Boston, Massachusetts 02110 Attn: Thomas Bushey Telephone No.: (617) 334-2805 Email: [***] |
with a copy (that will not constitute notice) to: Attn: Matthew A. Gray, Esq. Barry I. Grossman, Esq. Telephone No.: (212) 370-1300 Email: [***]; [***]
|
| If to the Company at or prior to the Closing, to: Fort Robotics, Inc. 1608 Walnut St. 12th Floor Philadelphia, PA 19103 Attn: Samuel Reeves Telephone: (267) 515-5880 Email: [***] |
with copies (which will not constitute notice) to: Fenwick & West LLP 902 Broadway 18th Floor New York, NY 10010 Attn: Aman D. Singh Telephone No.: (212) 430-2600 Email: [***] |
| If to SPAC or the Company (or any other
Covered Party) after the Closing, to: Fort Robotics, Inc. 1608 Walnut St. 12th Floor Philadelphia, PA 19103 Attn: Samuel Reeves Telephone: (267) 515-5880 Email: [***] |
with copies (that will not constitute notice) to: Fenwick & West LLP 902 Broadway 18th Floor New York, NY 10010 Attn: Aman D. Singh Telephone No.: (212) 430-2600 Email: [***] |
| If to the Subject Party, to: the address below the Subject Party’s name on the signature page to this Agreement. | |
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(b) Integration and Non-Exclusivity. This Agreement, the Merger Agreement and the other Ancillary Documents contain the entire agreement between the Subject Party and the Covered Parties concerning the subject matter hereof. Notwithstanding the foregoing, the rights and remedies of the Covered Parties under this Agreement are not exclusive of or limited by any other rights or remedies which they may have, whether at law, in equity, by contract or otherwise, all of which will be cumulative (and not alternative). Without limiting the generality of the foregoing, the rights and remedies of the Covered Parties, and the obligations and liabilities of the Subject Party and his, her or its Affiliates, under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities (i) under the laws of unfair competition, misappropriation of trade secrets, or other requirements of statutory or common law, or any applicable rules and regulations and (ii) otherwise conferred by contract, including the Merger Agreement and any other written agreement between the Subject Party or his, her or its Affiliate and any of the Covered Parties. Nothing in the Merger Agreement will limit any of the obligations, liabilities, rights or remedies of the Subject Party or the Covered Parties under this Agreement, nor will any breach of the Merger Agreement or any other agreement between the Subject Party or his, her or its Affiliate and any of the Covered Parties limit or otherwise affect any right or remedy of the Covered Parties under this Agreement. If any term or condition of any other agreement between the Subject Party or his, her or its Affiliate and any of the Covered Parties conflicts or is inconsistent with the terms and conditions of this Agreement, the more restrictive terms will control as to the Subject Party or his, her or its Affiliate, as applicable.
(c) Severability; Reformation. Each provision of this Agreement is separable from every other provision of this Agreement. If any provision of this Agreement is found or held to be invalid, illegal or unenforceable, in whole or in part, by a court of competent jurisdiction, then (i) such provision will be deemed amended to conform to applicable laws so as to be valid, legal and enforceable to the fullest possible extent, (ii) the invalidity, illegality or unenforceability of such provision will not affect the validity, legality or enforceability of such provision under any other circumstances or in any other jurisdiction, and (iii) the invalidity, illegality or unenforceability of such provision will not affect the validity, legality or enforceability of the remainder of such provision or the validity, legality or enforceability of any other provision of this Agreement. The Subject Party and the Covered Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision. Without limiting the foregoing, if any court of competent jurisdiction determines that any part hereof is unenforceable because of the duration, geographic area covered, scope of such provision, or otherwise, such court will have the power to reduce the duration, geographic area covered or scope of such provision, as the case may be, and, in its reduced form, such provision will then be enforceable.
(d) Amendment; Waiver. This Agreement may not be amended or modified in any respect, except by a written agreement executed by the Subject Party, SPAC (or their respective permitted successors or assigns) and, from and after the Closing, Newbury Street II Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”). No waiver will be effective unless it is expressly set forth in a written instrument executed by the waiving party (and if such waiving party is a Covered Party, Sponsor) and any such waiver will have no effect except in the specific instance in which it is given. Any delay or omission by a party in exercising its rights under this Agreement, or failure to insist upon strict compliance with any term, covenant, or condition of this Agreement will not be deemed a waiver of such term, covenant, condition or right, nor will any waiver or relinquishment of any right or power under this Agreement at any time or times be deemed a waiver or relinquishment of such right or power at any other time or times.
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(e) Governing Law; Jurisdiction. This Agreement and any dispute or controversy arising out of or relating to this Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of Delaware without regard to the conflict of laws principles thereof. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in the Court of Chancery of the State of Delaware in and for New Castle County, Delaware or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court (or, in each case, any appellate courts thereof) (the “Specified Courts”). Each party hereto hereby (a) submits to the exclusive jurisdiction of any Specified Courts for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto and (b) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the Specified Courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Courts. Each party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each party irrevocably consents to the service of the summons and complaint and any other process in any other Action relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such party at the applicable address set forth in Section 7(a). Nothing in this Section 7(e) shall affect the right of any party to serve legal process in any other manner permitted by Law.
(f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7(F). ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 7(F) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
(g) Successors and Assigns; Intended Third Party Beneficiaries. This Agreement will be binding upon the Subject Party and the Subject Party’s estate, successors and assigns, and will inure to the benefit of the Covered Parties, and their respective successors and assigns. Each Covered Party may freely assign any or all of its rights under this Agreement, at any time, in whole or in part, to any Person which acquires, in one or more transactions, at least a majority of the equity securities (whether by equity sale, merger or otherwise) of such Covered Party or all or substantially all of the assets of such Covered Party and its Subsidiaries, taken as a whole, without obtaining the consent or approval of the Subject Party. The Subject Party agrees that the obligations of the Subject Party under this Agreement are personal and will not be assigned by the Subject Party. Each of the Covered Parties and Sponsor is an intended third party beneficiary of this Agreement and will be considered parties under and for purposes of this Agreement.
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(h) Sponsor Authorized to Act on Behalf of Covered Parties. The parties acknowledge and agree that Sponsor is authorized and shall have the sole right to act on behalf of SPAC and the other Covered Parties under this Agreement, including the right to enforce the SPAC’s rights and remedies under this Agreement. Without limiting the foregoing, in the event that the Subject Party serves as a director, officer, employee or other authorized agent of a Covered Party, the Subject Party shall have no authority, express or implied, to act or make any determination on behalf of a Covered Party in connection with this Agreement or any dispute or Action with respect hereto.
(i) Construction. The Subject Party acknowledges that the Subject Party has been represented by Counsel, or had the opportunity to be represented by, counsel of the Subject Party’s choice. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. Neither the drafting history nor the negotiating history of this Agreement will be used or referred to in connection with the construction or interpretation of this Agreement. The headings and subheadings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. In this Agreement: (i) the words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation”; (ii) the definitions contained herein are applicable to the singular as well as the plural forms of such terms; (iii) whenever required by the context, any pronoun shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (iv) the words “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular Section or other subdivision of this Agreement; (v) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (vi) the term “or” means “and/or”; and (vii) any agreement or instrument defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement or instrument as from time to time amended, modified or supplemented, including by waiver or consent and references to all attachments thereto and instruments incorporated therein.
(j) Counterparts. This Agreement may be executed and delivered (including by facsimile, portable document format or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
(k) Effectiveness. This Agreement shall be binding upon the Subject Party upon the Subject Party’s execution and delivery of this Agreement, but this Agreement shall only become effective upon the Closing. In the event that the Merger Agreement is validly terminated in accordance with its terms prior to the Closing, this Agreement shall automatically terminate and become null and void, and the parties shall have no obligations hereunder, otherwise, this Agreement shall terminate at the end of the Restricted Period.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Non-Competition and Non-Solicitation Agreement as of the date first written above.
| Subject Party: | ||
| [ ] | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address for Notice: | ||
| Address: | ||
| Telephone No.: | ||
| Email: |
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Acknowledged and accepted as of the date first written above:
| SPAC: | ||
| Newbury Street II Acquisition Corp | ||
| By: | /s/ Thomas Bushey | |
| Name: | Thomas Bushey | |
| Title: | Chief Executive Officer | |
| The Company: | ||
| Fort Robotics, Inc., | ||
| By: | /s/ Samuel Reeves | |
| Name: | Samuel Reeves | |
| Title: | Chief Executive Officer | |
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Exhibit 10.4
CERTAIN INFORMATION HAS BEEN REDACTED FROM THIS EXHIBIT (A) BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL OR (B) IN ACCORDANCE WITH ITEM 601(A)(6) OF REGULATION S-K DUE TO PERSONAL PRIVACY CONCERNS. INFORMATION THAT HAS BEEN SO REDACTED FROM THIS EXHIBIT HAS BEEN MARKED WITH “[***]” TO INDICATE THE OMISSION.
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS FORM OF REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of _____, 2026, by and among (i) Newbury Street II Acquisition Corp, a Cayman Islands exempted company (together with its successors, including after the Domestication (as defined below), the “SPAC”), and (ii) the undersigned parties listed as “Investors” on the signature page hereto (each, an “Investor” and collectively, the “Investors”).
WHEREAS, on or about the date hereof, SPAC, Newbury Street II Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”), Hugo Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of SPAC (“Merger Sub”), and Fort Robotics, Inc., a Delaware corporation (the “Target Company”), have entered into that certain Agreement and Plan of Merger (as amended from time to time in accordance with the terms thereof, the “Merger Agreement”), pursuant to which, among other matters, (a) SPAC shall continue out of the Cayman Islands and become domesticated as a corporation in the State of Delaware pursuant to the Companies Law and the applicable provisions of the DGCL (the “Domestication”) and (b) upon the consummation of the transactions contemplated thereby, Merger Sub will merge with and into the Target Company, with the Target Company continuing as the surviving entity and a wholly-owned subsidiary of SPAC (the “Merger”), and as a result of which, all of the issued and outstanding capital stock of the Target Company immediately prior to the Effective Time shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, in exchange for the right of each Company Stockholder to receive its pro rata share of the Merger Consideration Shares as set forth in the Merger Agreement, all upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the applicable provisions of the DGCL; and
WHEREAS, the parties desire to enter into this Agreement to provide the Investors with certain rights relating to the registration of the Merger Consideration Shares received by the Investors under the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Merger Agreement. The following capitalized terms used herein have the following meanings:
“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the principal executive officer or principal financial officer of SPAC, after consultation with counsel to SPAC, (i) would be required to be made in any Registration Statement or prospectus in order for the applicable Registration Statement or prospectus not to contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) SPAC has a bona fide business purpose for not making such information public.
“Agreement” means this Agreement, as amended, restated, supplemented, or otherwise modified from time to time.
“Beneficially Own” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
“Board” means the Board of Directors of SPAC.
“Closing” means the consummation of the transactions contemplated by the Merger Agreement.
“Demand Registration” is defined in Section 2.2.1.
“Demanding Holder” is defined in Section 2.2.1.
“DGCL” means the General Corporation Law of the State of Delaware.
“Domestication” is defined in the recitals to this Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder, all as the same shall be in effect at the time.
“Holder” means any holder of Registrable Securities who is a party to, or who succeeds to rights under, this Agreement pursuant to Section 6.2 hereof.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Investor Indemnified Party” is defined in Section 4.1.
“Investor(s)” is defined in the preamble to this Agreement, and includes any transferee of the Registrable Securities (so long as they remain Registrable Securities) of an Investor permitted under this Agreement and the Lock-Up Agreement, as applicable.
“IPO Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of October 31, 2024, by and among SPAC, the Sponsor and the other parties thereto, as amended from time to time in accordance with the terms thereof.
“IPO Registrable Securities” means those securities included in the definition of “Registrable Security” specified in the IPO Registration Rights Agreement.
“Lock-Up Agreement” means the lock-up agreement entered into by SPAC and certain security holders of the Target Company, pursuant to which such security holders of the Target Company agreed not to transfer the Merger Consideration Shares for a certain period of time after the Closing.
“Losses” is defined in Section 4.1.
“Maximum Number of Securities” is defined in Section 2.2.4.
“Merger Agreement” is defined in the recitals to this Agreement.
“Merger Sub” is defined in the recitals to this Agreement.
“Merger” is defined in the recitals to this Agreement.
“Piggy-Back Registration” is defined in Section 2.3.1.
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“PIPE Registrable Securities” means those securities included in the definition of “Registrable Securities” specified in the Initial PIPE Subscription Agreements.
“Pro Rata” is defined in Section 2.2.4.
“Register,” “Registered” and “Registration” mean a registration or offering effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registrable Securities” means any shares of SPAC Common Stock Beneficially Owned by an Investor as of immediately following the Closing. Registrable Securities also include any equity securities of SPAC issued as a dividend, split or other distribution with respect to or in exchange for or in replacement of the foregoing securities or otherwise in connection with a combination of shares, distribution, recapitalization, merger, consolidation, other reorganization or other similar event with respect to SPAC Common Stock. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities shall have ceased to be outstanding; (c) such securities have been sold to, or through, a broker, dealer or underwriter in a public offering; (d) such securities shall have been otherwise Transferred by a Holder, a new certificate or book-entry for such security not bearing a legend restricting further Transfer shall have been delivered by SPAC and subsequent public distribution of such security shall not require registration under the Securities Act; or (e) such securities are eligible for resale without registration pursuant to Rule 144 without volume or manner-of-sale restrictions and without the requirement for SPAC to be in compliance with the current public information required by Rule 144(i)(2).
“Registration Statement” means a registration statement filed by SPAC with the SEC in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities (other than a registration statement on Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity).
“Rule 144” means Rule 144 promulgated under the Securities Act or any successor rule thereto.
“SEC” means the United States Securities and Exchange Commission or any successor thereto.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder, all as the same shall be in effect at the time.
“Shelf Registration Statement” means a Registration Statement of SPAC filed with the SEC on either (a) Form S-3 (or any successor form or other appropriate form under the Securities Act) or (b) if SPAC is not permitted to file a Registration Statement on Form S-3, a Registration Statement on Form S-1 (or any successor form or other appropriate form under the Securities Act), in each case for an offering to be made on a delayed or continuous basis pursuant to Rule 415 under the Securities Act covering the Registrable Securities, as applicable.
“SPAC” is defined in the preamble to this Agreement.
“Sponsor” is defined in the preamble to this Agreement.
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“Target Company” is defined in the recitals to this Agreement.
“Transfer” means to (A) exchange, transfer, assign, lend, sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, or any right or interest therein, (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 any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (C) publicly announce any intention to effect any transaction specified in clause (A) or (B). The terms “Transferee,” “Transferor,” “Transferred,” and other forms of the word “Transfer” shall have the correlative meanings.
“Underwriter” means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.
2. REGISTRATION RIGHTS.
2.1 Shelf Registration.
2.1.1 Shelf Registration Statement. SPAC shall use commercially reasonable to file, within thirty (30) calendar days following the Closing, a Shelf Registration Statement covering the resale of all Registrable Securities on a delayed or continuous basis (at SPAC’s sole cost and expense). SPAC further agrees that it shall not file any registration statement registering the resale of any of its securities other than the Shelf Registration Statement after the Closing Date until the Shelf Registration Statement has been declared effective by the SEC; provided, that, SPAC shall be permitted to include in the Shelf Registration Statement the securities registrable pursuant to (i) the IPO Registration Rights Agreement and (ii) the Initial PIPE Subscription Agreements. SPAC shall use commercially reasonable efforts to cause such Shelf Registration Statement to become effective under the Securities Act as soon as reasonably practicable after filing, but in no event later than the earlier of (i) the ninetieth (90th) calendar day following the filing date if the SEC notifies SPAC that it will review the Shelf Registration Statement and (ii) the fifth (5th) Business Day after the date SPAC is notified, orally or in writing, that the Shelf Registration Statement will not be reviewed or will not be subject to further review. SPAC shall maintain such Shelf Registration Statement continuously effective, available for use and in compliance with the Securities Act until all Registrable Securities covered by such Shelf Registration Statement have been sold or cease to be Registrable Securities. If SPAC files the Shelf Registration Statement on Form S-1, SPAC shall use commercially reasonable efforts to convert such Shelf Registration Statement, and any Subsequent Shelf Registration Statement, to a Shelf Registration Statement on Form S-3 as soon as reasonably practicable after SPAC becomes eligible to use Form S-3.
2.1.2 Subsequent Shelf Registration. If any Shelf Registration Statement ceases to be effective under the Securities Act while any Registrable Securities remain outstanding, SPAC shall use commercially reasonable efforts to cause such Shelf Registration Statement to again become effective as promptly as reasonably practicable or file an additional Shelf Registration Statement covering the resale of all Registrable Securities that remain Registrable Securities, and shall use commercially reasonable efforts to cause such additional Shelf Registration Statement to become effective as promptly as reasonably practicable after filing and to keep it continuously effective, available for use and in compliance with the Securities Act until all Registrable Securities covered thereby have been sold or cease to be Registrable Securities.
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2.1.3 Underwritten Shelf Take-Downs. At any time when an effective Shelf Registration Statement is on file with the SEC, Investors holding at least a majority-in-interest of the Registrable Securities included on such Shelf Registration Statement may request to sell all or any portion of their Registrable Securities in an underwritten offering registered pursuant to such Shelf Registration Statement (“Underwritten Shelf Take-Down”); provided that SPAC shall be obligated to effect such Underwritten Shelf Take-Down only if the offering involves Registrable Securities having a reasonably anticipated net aggregate offering price, after deduction of underwriting commissions, of at least fifty million dollars ($50,000,000). Any such Underwritten Shelf Take-Down shall count as an Underwritten Offering (as defined in Section 2.2.3) for purposes of the limitations set forth in this Section 2.
2.2 Demand Registration.
2.2.1 Request for Registration. Subject to Sections 2.4 and 2.5 and solely at a time when a Shelf Registration Statement is not effective, at any time and from time to time after the Closing, Investors holding at least a majority-in-interest of the Registrable Securities then issued and outstanding may make a written demand for registration under the Securities Act of all or part of their Registrable Securities, which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand, a “Demand Registration”). Within ten (10) days following receipt of any request for a Demand Registration, SPAC will notify all other Investors holding Registrable Securities of the demand, and each Investor holding Registrable Securities who wishes to include all or a portion of such Investor’s Registrable Securities in the Demand Registration (each such Investor including shares of Registrable Securities in such registration, a “Demanding Holder”) shall so notify SPAC within five (5) days after the receipt by the Investor of the notice from SPAC. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to Section 2.2.4 and the provisos set forth in Section 3.1.1. SPAC shall not be obligated to effect more than an aggregate of two (2) Demand Registrations under this Section 2.2.1 in respect of all Registrable Securities. Notwithstanding anything in this Section 2.2 to the contrary, SPAC shall not be obligated to effect a Demand Registration under this Agreement, (i) if a Piggy-Back Registration had been available to the Demanding Holder(s) within the one-hundred twenty (120) days preceding the date of request for the Demand Registration, or (ii) within sixty (60) days after the effective date of a previous registration effected with respect to the Registrable Securities pursuant to this Section 2.2.
2.2.2 Effective Registration. Notwithstanding the provision of subsection 2.2.1 above or any other part of this Agreement, a Registration will not count as a Demand Registration until the Registration Statement filed with the SEC with respect to such Demand Registration has been declared effective by the SEC; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the SEC or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue with such Registration and accordingly notify SPAC in writing, but in no event later than five (5) days after such removal, rescission or termination, of such election; provided, further, that SPAC shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed pursuant to a Demand Registration becomes effective or is terminated.
2.2.3 Underwritten Offering. Subject to the provisions of subsection 2.2.4 and Sections 2.4 and 2.5 hereof, if a majority-in-interest of the Demanding Holders so elect and advise SPAC as part of their written demand for a Demand Registration and the offering of such Registrable Securities involves the offer and sale of Registrable Securities having a reasonably anticipated net aggregate offering price (after deduction of any underwriting commissions) of at least fifty million dollars ($50,000,000), the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of an underwritten offering (“Underwritten Offering”). In such event, the right of any Demanding Holder to include its Registrable Securities in such registration shall be conditioned upon such Demanding Holder’s participation in such underwritten offering and the inclusion of such Demanding Holder’s Registrable Securities in the underwritten offering to the extent provided herein. All Demanding Holders proposing to distribute their Registrable Securities through such underwritten offering under this subsection 2.2.3 shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such underwritten offering by the SPAC and reasonably acceptable to a majority-in-interest of Demanding Holders.
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2.2.4 Reduction of Offering. If the managing Underwriter or Underwriters for a Demand Registration that is to be an underwritten offering, in good faith, advises SPAC and the Demanding Holders in writing that the dollar amount or number of Registrable Securities which the Demanding Holders desire to sell, taken together with all other shares of SPAC Common Stock or other securities which SPAC desires to sell and the shares of SPAC Common Stock or other securities, if any, as to which Registration by SPAC has been requested pursuant to written contractual piggy-back registration rights held by other security holders of SPAC who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of securities, as applicable, the “Maximum Number of Securities”), then SPAC shall include in such Registration: (i) first, (A) the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders and (B) the IPO Registrable Securities for the account of any Persons who have exercised demand registration rights pursuant to the IPO Registration Rights Agreement during the period under which the Demand Registration hereunder is ongoing (all pro rata in accordance with the number of securities that each applicable Person has requested be included in such registration, regardless of the number of securities held by each such Person, as long as they do not request to include more securities than they own (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), Registrable Securities of Investors as to which registration has been requested pursuant to Section 2.3 and IPO Registrable Securities as to which registration has been requested pursuant to the written contractual piggy-back registration rights under the IPO Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Securities; (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the shares of SPAC Common Stock or other securities that SPAC desires to sell that can be sold without exceeding the Maximum Number of Securities; and (iv) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i), (ii) and (iii), the shares of SPAC Common Stock or other securities for the account of other Persons that SPAC is obligated to register pursuant to written contractual arrangements with such Persons (other than this Agreement or the IPO Registration Rights Agreement) that can be sold without exceeding the Maximum Number of Securities.
2.2.5 Withdrawal. A Demanding Holder may withdraw all or any portion of their Registrable Securities included in a Demand Registration from such Demand Registration at any time prior to the effectiveness of the Demand Registration Statement. If a majority-in-interest of the Demanding Holders disapprove of the terms of any underwritten offering or are not entitled to include all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such offering by giving written notice to SPAC and the Underwriter or Underwriters of their request to withdraw prior to the effectiveness of the Registration Statement filed with the SEC with respect to such Demand Registration. If the majority-in-interest of the Demanding Holders (i) withdraws from a proposed offering relating to a Demand Registration in such event and (ii) reimburses the reasonable costs and expenses of SPAC incurred in respect of such aborted Demand Registration, then such registration shall not count as a Demand Registration provided for in Section 2.2.
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2.3 Piggy-Back Registration.
2.3.1 Piggy-Back Rights. If at any time after the Closing, SPAC proposes to file a Registration Statement under the Securities Act with respect to the Registration of or an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by SPAC for its own account or for security holders of SPAC for their account (or by SPAC and by security holders of SPAC including pursuant to Section 2.2), other than a Registration Statement (i) filed to register the resale of the PIPE Registrable Securities under the Initial PIPE Subscription Agreements, (ii) filed in connection with any employee share option or other benefit plan, (iii) for an exchange offer or offering of securities solely to SPAC’s existing security holders, (iv) for an offering of debt that is convertible into equity securities of SPAC, (v) for a “universal” Shelf Registration Statement, (vi) for a registration pursuant to Section 2.1 or (vii) for a dividend reinvestment plan, then SPAC shall (x) give written notice of such proposed filing to Investors holding Registrable Securities as soon as practicable but in no event less than ten (10) days before the anticipated filing date or confidential submission date, which notice shall describe the amount and type of securities to be included in such Registration or offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, of the offering, and (y) offer to Investors holding Registrable Securities in such notice the opportunity to register the sale of such number of Registrable Securities as such Investors may request in writing within five (5) days following receipt of such notice (a “Piggy-Back Registration”). To the extent permitted by applicable securities laws with respect to such registration by SPAC, SPAC shall use its commercially reasonable efforts to cause (i) such Registrable Securities to be included in such registration and (ii) the managing Underwriter or Underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any similar securities of SPAC and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All Investors holding Registrable Securities proposing to distribute their securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration. Each Holder shall keep confidential its receipt of any such notice until the contents of such notice are publicly announced by SPAC or until otherwise notified by SPAC, except (A) for disclosure to such Holder’s employees, agents and professional advisers who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners who have agreed to keep such information confidential or (C) as required by law (as advised by legal counsel) or subpoena.
2.3.2 Reduction of Offering. If the managing Underwriter or Underwriters for a Piggy-Back Registration that is to be an underwritten offering, in good faith, advises SPAC and Investors holding Registrable Securities proposing to distribute their Registrable Securities through such Piggy-Back Registration in writing that the dollar amount or number of shares of SPAC Common Stock or other SPAC securities which SPAC desires to sell, taken together with the shares of SPAC Common Stock or other SPAC securities, if any, as to which registration has been demanded pursuant to written contractual arrangements with Persons other than the Investors holding Registrable Securities hereunder, the Registrable Securities as to which registration has been requested under this Section 2.3, and the shares of SPAC Common Stock or other SPAC securities, if any, as to which registration has been requested pursuant to the written contractual piggy-back registration rights of other security holders of SPAC, exceeds the Maximum Number of Securities, then SPAC shall include in any such registration:
(a) If the registration is undertaken for SPAC’s account: (i) first, the shares of SPAC Common Stock or other securities that SPAC desires to sell that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.3 and IPO Registrable Securities as to which registration has been requested pursuant to the written contractual piggy-back registration rights under the IPO Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the shares of SPAC Common Stock or other equity securities for the account of other Persons that SPAC is obligated to register pursuant to separate written contractual arrangements with such Persons (other than this Agreement or the IPO Registration Rights Agreement) that can be sold without exceeding the Maximum Number of Securities;
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(b) If the registration is a Demand Registration undertaken at the demand of Demanding Holders pursuant to Section 2.2: (i) first, (A) the shares of SPAC Common Stock or other securities for the account of the Demanding Holders and (B) the IPO Registrable Securities for the account of any Persons who have exercised demand registration rights pursuant to the IPO Registration Rights Agreement during the period under which the Demand Registration hereunder is ongoing, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Securities; (iii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i), Registrable Securities of Investors as to which registration has been requested pursuant to Section 2.3 and the IPO Registrable Securities as to which registration has been requested pursuant to the written contractual piggy-back registration rights under the IPO Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Securities; (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the shares of SPAC Common Stock or other securities that SPAC desires to sell that can be sold without exceeding the Maximum Number of Securities; and (iv) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i), (ii) and (iii), the shares of SPAC Common Stock or other equity securities for the account of other Persons that SPAC is obligated to register pursuant to separate written contractual arrangements with such Persons (other than this Agreement or the IPO Registration Rights Agreement) that can be sold without exceeding the Maximum Number of Securities;
(c) If the registration is a Demand Registration undertaken at the demand of holders of IPO Registrable Securities under the IPO Registration Rights Agreement: (i) first, the IPO Registrable Securities for the account of the demanding holders under the IPO Registration Rights Agreement and the Registrable Securities for the account of Demanding Holders who have exercised demand registration rights pursuant to Section 2.2 during the period under which the demand registration under the IPO Registration Rights Agreement is ongoing, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.3 and the IPO Registrable Securities as to which registration has been requested pursuant to the written contractual piggy-back registration rights under the IPO Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Securities; (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the shares of SPAC Common Stock or other securities that SPAC desires to sell that can be sold without exceeding the Maximum Number of Securities; and (iv) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i), (ii) and (iii), the shares of SPAC Common Stock or other equity securities for the account of other Persons that SPAC is obligated to register pursuant to separate written contractual arrangements with such Persons (other than this Agreement or the IPO Registration Rights Agreement) that can be sold without exceeding the Maximum Number of Securities; and
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(d) If the registration is a Demand Registration undertaken at the demand of Persons other than either Demanding Holders under Section 2.2 or the holders of IPO Registrable Securities exercising demand registration rights under the IPO Registration Rights Agreement: (i) first, the shares of SPAC Common Stock or other securities for the account of the demanding Persons that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.3 and IPO Registrable Securities as to which registration has been requested pursuant to the written contractual piggy-back registration rights under the IPO Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Securities; (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the shares of SPAC Common Stock or other securities that SPAC desires to sell that can be sold without exceeding the Maximum Number of Securities; (iv) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i), (ii) and (iii), the shares of SPAC Common Stock or other equity securities for the account of other Persons that SPAC is obligated to register pursuant to separate written contractual arrangements with such Persons (other than this Agreement or the IPO Registration Rights Agreement) that can be sold without exceeding the Maximum Number of Securities.
2.3.3 Withdrawal. Any Investor holding Registrable Securities may elect to withdraw such Investor’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to SPAC of such request to withdraw prior to the effectiveness of the Registration Statement. In connection with Section 2.3, SPAC (whether on its own determination or as the result of a withdrawal by Persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement without any liability to the applicable Investor, subject to the next sentence and the provisions of Section 4. Notwithstanding any such withdrawal, SPAC shall pay all expenses incurred in connection with such Piggy-Back Registration as provided in Section 3.3 (subject to the limitations set forth therein) by Investors holding Registrable Securities that requested to have their Registrable Securities included in such Piggy-Back Registration.
2.4 Restriction of Offerings. Notwithstanding anything to the contrary contained in this Agreement, an Investor shall not be entitled to request, and SPAC shall not be obligated to request the SEC to declare any registration (including any Demand Registration but not including Piggy-Back Registration) effective pursuant to this Section 2 with respect to any Registrable Securities that are subject to the transfer restrictions under the applicable Investor’s Lock-Up Agreement, as applicable.
2.5 Limitation on Underwritten Offerings. Notwithstanding anything to the contrary contained in this Agreement, SPAC shall not be obligated to effect (i) more than three (3) Underwritten Offerings, including any Underwritten Shelf Take-Downs, in the aggregate pursuant to this Agreement, or (ii) more than one (1) Underwritten Offering, including any Underwritten Shelf Take-Down, in any one hundred eighty (180)-day period. For purposes of the foregoing, any Demand Registration or Underwritten Shelf Take-Down shall not count against the limitations in this Section 2.5 to the extent that the applicable Investors are not able to sell at least fifty percent (50%) of the Registrable Securities requested to be sold in such Demand Registration or Underwritten Shelf Take-Down as a result of the managing Underwriter or Underwriters advising SPAC that marketing factors require a limitation on the number of securities to be included in such offering.
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2.6 Term. This Section 2 shall terminate on the earlier of (i) the fifth (5th) anniversary of the date of this Agreement and (ii) with respect to any Investor, on the date that such Investor no longer holds any Registrable Securities.
2.7 “Market Stand-Off” Agreement. Each Holder hereby agrees with SPAC that, with respect to Underwritten Offerings in which such Holder participates, during such period (which period shall in no event exceed 90 days) following the effective date of a Registration Statement of SPAC (or, in the case of an Underwritten Shelf Take-Down, the date of the final Prospectus or Prospectus supplement relating to such Underwritten Offering (or if there is no such filing, the first contemporaneous press release announcing the pricing of such Underwritten Offering)) as the Holders that own a majority of the Registrable Securities participating in such Underwritten Offering may agree to with the Underwriter or Underwriters of such Underwritten Offering (a “Market Stand-Off Period”), such Holder or its Affiliates shall not Transfer (other than to donees who agree to be similarly bound) any Registrable Securities held by it at any time during such period except Registrable Securities included in such Registration. In connection with any Underwritten Offering contemplated by this Section 2.7 SPAC shall use commercially reasonable efforts to cause each director and executive officer of SPAC to execute a customary lock-up agreement with the Underwriter or Underwriters of such Underwritten Offering for the Market Stand-Off Period. Each Holder participating in such Underwritten Offering agrees with SPAC that it shall deliver to the Underwriter or Underwriters for any such Underwritten Offering a customary lock-up agreement (with customary terms, conditions and exceptions) that is substantially similar to the agreement delivered to the Underwriter or Underwriters by the Holders that own a majority of the Registrable Securities participating in such Underwritten Offering reflecting their agreement set forth in this Section 2.7; provided, that such agreement shall not be materially more restrictive than any similar agreement entered into by SPAC’s directors and executive officers; provided, further, that such agreement shall not be required unless all Holders participating in such Underwritten Offering are required to enter into similar agreements; provided, further, that such agreement shall provide that any early release of any Holder, director or executive officer from the provisions of the terms of such agreement shall be on a pro rata basis among all Holders so bound.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever SPAC is required to effect the registration of any Registrable Securities pursuant to Section 2, SPAC shall use its commercially reasonable efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 Filing Registration Statement.Whenever required under Section 2, SPAC shall use its commercially reasonable efforts to, as expeditiously as possible, prepare and file with the SEC a Registration Statement on any form for which SPAC then qualifies or which counsel for SPAC shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) of distribution thereof, and shall use its commercially reasonable efforts to cause such Registration Statement to become effective and use its commercially reasonable efforts to keep it effective for the period required by Section 3.1.3; provided, however, if (provided that SPAC continues to actively employ, in good faith, all commercially reasonable efforts to cause the applicable Registration Statement to become effective), (i) the Investors pursuant to this Agreement have requested an underwritten Registration and SPAC and the Investors are unable to obtain the commitment of underwriters to firmly underwrite the offer or (ii) in the good faith judgment of the Board such Registration would require SPAC to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to SPAC for reasons beyond SPAC’s control, then in each case SPAC shall furnish to such Investors a certificate signed by the Chairman of the Board or an executive officer of SPAC stating that in the good faith judgment of the Board such Registration would require SPAC to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to SPAC for reasons beyond SPAC’s control and that SPAC therefore will defer the filing of such Registration Statement or, in the case of a Shelf Registration Statement, require the Holders not to sell under such Registration Statement or to suspend the effectiveness thereof. In such event, SPAC shall have the right to defer such filing or, in the case of a Shelf Registration Statement, require the Holders not to sell under such Registration Statements or to suspend the effectiveness thereof, on not more than two (2) occasions for a period of not more than sixty (60) consecutive days in any three hundred sixty (360)-day period.
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3.1.2 Copies. SPAC shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to Investors holding Registrable Securities included in such registration, and such Investors’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration Statement (including each preliminary prospectus), and such other documents as Investors holding Registrable Securities included in such registration or legal counsel for any such Investors may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investors.
3.1.3 Amendments and Supplements. SPAC shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act, including all financial statements or schedules, until all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn or until such time as the Registrable Securities cease to be Registrable Securities as defined by this Agreement.
3.1.4 Reporting Obligations. As long as any Investors shall own Registrable Securities, SPAC, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by SPAC after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Investors with true and complete copies of all such filings; provided that any documents publicly filed or furnished with the SEC pursuant to the Electronic Data Gathering, Analysis and Retrieval System shall be deemed to have been furnished or delivered to the Investors pursuant to this Section 3.1.4.
3.1.5 Other Obligations. In connection with a sale or transfer of Registrable Securities exempt from Section 5 of the Securities Act or through any broker-dealer transactions described in the plan of distribution set forth within the prospectus included in the Registration Statement, SPAC shall, subject to the receipt of any customary documentation reasonably required from the applicable Investors in connection therewith, (a) promptly instruct its transfer agent to remove any restrictive legends applicable to the Registrable Securities being sold or transferred and (b) cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under subclause (a). In addition, SPAC shall cooperate reasonably with, and take such customary actions as may reasonably be requested by the Investors, in connection with the aforementioned sales or transfers.
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3.1.6 Notification. After the filing of a Registration Statement, SPAC shall promptly, and in no event more than five (5) Business Days after such filing, notify Investors holding Registrable Securities included in such Registration Statement of such filing, and shall further notify such Investors promptly and confirm such advice in writing in all events within two (2) Business Days after the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened issuance by the SEC of any stop order (and SPAC shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the SEC for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to purchasers of the securities covered by such Registration Statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to Investors holding Registrable Securities included in such Registration Statement any such supplement or amendment; except that before filing with the SEC a Registration Statement or prospectus or any amendment or supplement thereto, including documents incorporated by reference, SPAC shall furnish to Investors holding Registrable Securities included in such Registration Statement and to the legal counsel for any such Investors, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such Investors and legal counsel with a reasonable opportunity to review such documents and comment thereon; provided that such Investors and their legal counsel must provide any comments promptly (and in any event within five (5) Business Days) after receipt of such documents.
3.1.7 State Securities Laws Compliance. SPAC shall use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as Investors holding Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request and (ii) take such action reasonably necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of SPAC and do any and all other acts and things that may be reasonably necessary or advisable to enable Investors holding Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that SPAC shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or take any action to which it would be subject to general service of process or to taxation in any such jurisdiction where it is not then otherwise subject.
3.1.8 Agreements for Disposition. To the extent required by the underwriting agreement or similar agreements, SPAC shall enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities. The representations, warranties and covenants of SPAC in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of Investors holding Registrable Securities included in such Registration Statement. No Investor holding Registrable Securities included in such Registration Statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Investor’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such sale with such Investor’s material agreements and organizational documents, and with respect to written information relating to such Investor that such Investor has furnished in writing expressly for inclusion in such Registration Statement.
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3.1.9 Cooperation. The principal executive officer of SPAC, the principal financial officer of SPAC, the principal accounting officer of SPAC and all other officers and members of the management of SPAC shall reasonably cooperate in any offering of Registrable Securities hereunder, which cooperation shall include the preparation of the Registration Statement with respect to such offering and all other offering materials and related documents, and participation in meetings with Underwriters, attorneys, accountants and potential investors.
3.1.10 Records. SPAC shall make available for inspection by Investors holding Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other professional retained by any Investor holding Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of SPAC, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause SPAC’s officers, directors and employees to supply all information reasonably requested by any of them in connection with such Registration Statement; provided that SPAC may require execution of a reasonable confidentiality agreement prior to sharing any such information.
3.1.11 Opinions and Comfort Letters. SPAC shall obtain from its counsel and accountants customary legal opinions and customary comfort letters, to the extent so reasonably required by any underwriting agreement.
3.1.12 Earnings Statement. SPAC shall comply with all applicable rules and regulations of the SEC and the Securities Act, and make available to its shareholders if reasonably required, as soon as reasonably practicable, an earnings statement covering a period of twelve (12) months beginning with the first day of SPAC’s first full calendar quarter after the effective date of a registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the SEC).
3.1.13 Listing. SPAC shall use its commercially reasonable efforts to cause all Registrable Securities that are shares of SPAC Common Stock included in any registration to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by SPAC are then listed or designated or, if no such similar securities are then listed or designated, in a manner satisfactory to Investors holding a majority-in-interest of the Registrable Securities included in such registration.
3.1.14 Road Show. If the registration involves an Underwritten Offering, SPAC shall use its commercially reasonable efforts to make available senior executives of SPAC to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any underwritten offering.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from SPAC of the happening of any event of the kind described in Section 3.1.6(iv), or upon receipt of any notice from SPAC that the Registration Statement or prospectus included therein contains a misstatement of material fact or omits to state a material fact, each Investor holding Registrable Securities included in any registration shall immediately discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Investor receives the supplemented or amended prospectus contemplated by Section 3.1.6(iv) or until advised in writing by SPAC that the use of the prospectus may be resumed (it being understood that SPAC hereby covenants to prepare and file such supplement or amendment as soon as reasonably practicable after the time of such notice).
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3.3 Registration Expenses. Subject to Section 4, SPAC shall bear all reasonable costs and expenses incurred in connection with any Demand Registration pursuant to Section 2.2, any Piggy-Back Registration pursuant to Section 2.3, and any registration on Shelf Registration Statement effected pursuant to Section 2.1, and all reasonable expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Registration Statement becomes effective, including: (i) all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) SPAC’s internal expenses (including all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by Section 3.1.13; (vi) Financial Industry Regulatory Authority fees; (vii) fees and disbursements of counsel for SPAC and fees and expenses for independent certified public accountants retained by SPAC (including the expenses or costs associated with the delivery of any opinions or comfort letters requested pursuant to Section 3.1.11); (viii) the reasonable fees and expenses of any special experts retained by SPAC in connection with such registration; and (ix) the reasonable fees and expenses of one legal counsel selected by Investors holding a majority-in-interest of the Registrable Securities included in such registration for such legal counsel’s review, comment and finalization of the proposed Registration Statement and other relevant documents, provided, however, that such reimbursable fees and expenses of counsel shall not exceed $[50,000] per Registration. SPAC shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders. Additionally, in an underwritten offering, only if the Underwriters require the selling security holders and/or SPAC to bear the expenses of the Underwriter following good faith negotiations, all selling security holders and SPAC shall bear the expenses of the Underwriter pro rata in proportion to the respective amount of securities each is selling in such offering.
3.4 Information. Investors holding Registrable Securities included in any Registration Statement shall provide such information as may reasonably be requested by SPAC, or the managing Underwriter, if any, in connection with the preparation of such Registration Statement, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 2 and in connection with the obligation to comply with federal and applicable state securities laws. Investors selling Registrable Securities in any offering must provide all questionnaires, powers of attorney, custody agreements, stock powers, and other documentation reasonably requested by SPAC or the managing Underwriter. Notwithstanding anything to the contrary contained herein, if any Holder does not provide SPAC with information requested pursuant to this Section 3.4, SPAC may exclude such Holder’s Registrable Securities from the applicable Registration Statement if SPAC determines, based on the advice of outside counsel, that such information is necessary to effect the Registration and such Holder continues thereafter to withhold such information.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by SPAC. Subject to the provisions of this Section 4.1 below, SPAC agrees to indemnify and hold harmless each Investor, and each Investor’s officers, employees, affiliates, directors, partners, members, investment advisers, attorneys and agents, and each Person, if any, who controls an Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “Investor Indemnified Party”), from and against any expenses, losses, judgments, claims, actions, damages or liabilities (collectively, “Losses”), whether joint or several, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by SPAC of the Securities Act or any rule or regulation promulgated thereunder applicable to SPAC and relating to action or inaction required of SPAC in connection with any such registration (provided, however, that the indemnification contained in this Section 4.1 shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of SPAC, such consent not to be unreasonably withheld, delayed or conditioned); and SPAC shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses reasonably incurred by such Investor Indemnified Party in connection with investigating and defending any such Loss; provided, however, that SPAC will not be liable in any such case to the extent that any such Loss arises out of or is based upon any untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to SPAC, in writing, by such selling Investor or Investor Indemnified Party expressly for use therein. SPAC also shall indemnify any Underwriter of the Registrable Securities, their officers, affiliates, directors, partners, members and agents and each Person who controls such Underwriter on substantially the same basis as that of the indemnification provided above in this Section 4.1.
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4.2 Indemnification by Holders of Registrable Securities . Subject to the provisions of this Section 4.2 below, each Investor selling Registrable Securities will, in the event that any registration is being effected under the Securities Act pursuant to this Agreement of any Registrable Securities held by such selling Investor, indemnify and hold harmless SPAC, each of its directors and officers and each Underwriter (if any), and each other Person, if any, who controls such Underwriter within the meaning of the Securities Act, against any Losses, whether joint or several, insofar as such Losses arise out of or are based upon any untrue statement or allegedly untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statement therein not misleading, if the statement or omission was made in reliance upon and in conformity with information furnished in writing to SPAC by such selling Investor expressly for use therein (provided, however, that the indemnification contained in this Section 4.2 shall not apply to amounts paid in settlement of any such Loss if such settlement is effected without the consent of the indemnifying Investor, such consent not to be unreasonably withheld, delayed or conditioned), and shall reimburse SPAC, its directors and officers, each Underwriter and each other controlling Person for any legal or other expenses reasonably incurred by any of them in connection with investigating or defending any such Loss. Each selling Investor’s indemnification obligations hereunder shall be several and not joint and shall be limited to the amount of any net proceeds actually received by such selling Investor in the applicable offering.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any Person of any notice of any Loss in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such Person (the “Indemnified Party”) shall, if a claim in respect thereof is to be made against any other Person for indemnification hereunder, notify such other Person (the “Indemnifying Party”) in writing of the Loss; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel satisfactory to the Indemnified Party if the Indemnifying Party provides notice of such to the Indemnified Party within thirty (30) days of the Indemnifying Party’s receipt of notice of such claim. After notice from the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than one such separate counsel) to represent the Indemnified Party and its controlling Persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written opinion of counsel of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party (which shall not be unreasonably delayed or withheld), consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
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4.4 Contribution.
4.4.1 If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any Loss referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties and the Indemnifying Parties in connection with the actions or omissions which resulted in such Loss, as well as any other relevant equitable considerations. The relative fault of any Indemnified Party and any Indemnifying Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such Indemnified Party or such Indemnifying Party and such party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
4.4.2 The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding Section 4.4.1.
4.4.3 The amount paid or payable by an Indemnified Party as a result of any Loss referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4.4, no Investor holding Registrable Securities shall be required to contribute any amount in excess of the dollar amount of the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such Investor from the sale of Registrable Securities which gives rise to such contribution obligation. Any contribution obligation of the Investors shall be several and not joint. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.
5. RULE 144 and 145.
5.1 Rule 144 and 145. SPAC covenants that it shall file any reports required to be filed by it under the Securities Act and the Exchange Act and shall take such further action as Investors holding Registrable Securities may reasonably request, all to the extent required from time to time to enable such Investors to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 and 145 under the Securities Act, as such Rule 144 and 145 may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
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6. MISCELLANEOUS.
6.1 Other Registration Rights. SPAC represents and warrants that as of the date of this Agreement, except as set forth in the Merger Agreement, no Person, other than the holders of (i) Registrable Securities, (ii) the PIPE Registrable Securities and (iii) IPO Registrable Securities, has any right to require SPAC to register any of SPAC’s capital stock for sale or to include SPAC’s capital stock in any registration filed by SPAC for the sale of capital stock for its own account or for the account of any other Person.
6.2 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties and obligations of SPAC hereunder may not be assigned or delegated by SPAC in whole or in part without the written consent of the Investors holding at least a majority-in-interest of the Registrable Securities held by all Investors and by holders of a majority-in-interest of the IPO Registrable Securities. Except as otherwise permitted pursuant to this Agreement, no Holder may assign such Holder’s rights and obligations under this Agreement, in whole or in part, without the prior written consent of SPAC. Any such assignee may not again assign those rights, other than in accordance with this Section 6.2. Any attempted assignment of rights or obligations in violation of this Section 6.2 shall be null and void. Notwithstanding anything to the contrary contained in this Agreement (other than the succeeding sentence of this Section 6.2), (i) prior to the expiration of the restrictions in the Lock-Up Agreement, a Holder may not Transfer such Holder’s rights or obligations under this Agreement in connection with a Transfer of such Holder’s Registrable Securities, in whole or in part, except in connection with a Transfer in accordance with the terms of the Lock-Up Agreement; and (ii) after the expiration of the restrictions in the Lock-Up Agreement with respect to any Registrable Securities held by a Holder, a Holder may Transfer such Holder’s rights or obligations under this Agreement in connection with a Transfer of such Registrable Securities, in whole or in part, (x) in accordance with the terms of the Lock-Up Agreement or (y) to any Person with the prior written consent of SPAC. Any Transferee of Registrable Securities (other than pursuant to an effective registration statement under the Securities Act or pursuant to a Rule 144 transaction) shall, except as otherwise expressly stated herein, have all the rights and be subject to all of the obligations of the Transferor Holder under this Agreement and shall be required, at the time of and as a condition to such Transfer, to become a party to this Agreement by executing and delivering a joinder in a form reasonably acceptable to SPAC. No Transfer of Registrable Securities by a Holder shall be registered on SPAC’s books and records, and such Transfer of Registrable Securities shall be null and void and not otherwise effective, unless any such Transfer is made in accordance with the terms and conditions of this Agreement, and SPAC is hereby authorized by all of the Holders to enter appropriate stop transfer notations on its transfer records to give effect to this Agreement. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties hereto and holders of the IPO Registrable Securities, to the permitted assigns of the Investors or holders of IPO Registrable Securities or of any assignee of the Investors or holders of IPO Registrable Securities. This Agreement is not intended to confer any rights or benefits on any Persons that are not party hereto other than as expressly set forth in Section 2.3.2, Section 4 and this Section 6.2.
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6.3 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by email with affirmative confirmation of receipt, (iii) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
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If to SPAC prior to the Closing, to: |
With a copy (which will not constitute notice) to: Barry I. Grossman, Esq. [***] |
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If to SPAC from and after the Closing, to: |
With copies (which shall not constitute notice) to: |
| If to an Investor, to: the address set forth below Investor’s name on the signature page to this Agreement. | |
6.4 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable. Notwithstanding anything to the contrary contained in this Agreement, in the event that a duly executed copy of this Agreement is not delivered to SPAC by a Person receiving Registrable Securities in connection with the Closing, such Person failing to provide such signature (other than any holder of IPO Registrable Securities) shall not be a party to this Agreement or have any rights or obligations hereunder, but such failure shall not affect the rights and obligations of the other parties to this Agreement as amongst such other parties.
6.5 Entire Agreement. This Agreement (together with the Merger Agreement, and the Lock-Up Agreement to the extent incorporated herein, and including all agreements entered into pursuant hereto or thereto or referenced herein or therein, including without limitation the IPO Registration Rights Agreement, the Initial PIPE Subscription Agreements, and all certificates and instruments delivered pursuant hereto and thereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written, relating to the subject matter hereof; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Merger Agreement or any other Ancillary Document (as defined in the Merger Agreement) or the rights or obligations of the parties under the IPO Registration Rights Agreement or the Initial PIPE Subscription Agreements.
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6.6 Interpretation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
6.7 Amendments; 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 agreement or consent of SPAC and Investors holding a majority-in-interest of the Registrable Securities; provided, that any amendment or waiver of this Agreement which affects an Investor in a manner materially and adversely disproportionate to other Investors will also require the consent of such Investor. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. 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.
6.8 Remedies Cumulative. In the event a party fails to observe or perform any covenant or agreement to be observed or performed under this Agreement, the other parties may proceed to protect and enforce its rights by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.
6.9 Governing Law; Jurisdiction; Waiver of Jury Trial. Sections 9.6 and 9.7 of the Merger Agreement shall apply to this Agreement mutatis mutandis.
6.10 Termination of Merger Agreement. This Agreement shall be binding upon each party upon such party’s execution and delivery of this Agreement, but this Agreement shall only become effective upon the Closing. In the event that the Merger Agreement is validly terminated in accordance with its terms prior to the Closing, this Agreement shall automatically terminate and become null and void and be of no further force or effect, and the parties shall have no obligations hereunder.
6.11 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Copies of executed counterparts of this Agreement transmitted by electronic transmission (including by email or in .pdf format) or facsimile as well as electronically or digitally executed counterparts (such as DocuSign) shall have the same legal effect as original signatures and shall be considered original executed counterparts of this Agreement.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW}
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed and delivered as of the date first written above.
| SPAC: | ||
| Newbury Street II Acquisition Corp | ||
| By: | ||
| Name: | ||
| Title: | ||
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed and delivered as of the date first written above.
| Investor: | ||
| [INVESTOR] | ||
| By: | ||
| Name: | ||
| Title: | ||
Address for Notice:
| Address: | ||
| Facsimile No.: | ||
| Telephone No.: |
| Email: |
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Exhibit 10.5
EXECUTION VERSION
CERTAIN INFORMATION HAS BEEN REDACTED FROM THIS EXHIBIT (A) BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL OR (B) IN ACCORDANCE WITH ITEM 601(A)(6) OF REGULATION S-K DUE TO PERSONAL PRIVACY CONCERNS. INFORMATION THAT HAS BEEN SO REDACTED FROM THIS EXHIBIT HAS BEEN MARKED WITH “[***]” TO INDICATE THE OMISSION.
AMENDMENT TO LETTER AGREEMENT
THIS AMENDMENT TO LETTER AGREEMENT (this “Amendment”) is made and entered into as of August 17, 2026, and shall be effective as of the Closing (defined below), by and among (i) Newbury Street II Acquisition Corp, a Cayman Islands exempted company (together with its successors, the “Company”), (ii) Newbury Street II Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”), (iii) Fort Robotics Inc., a Delaware corporation (“Target”), and (iv) the undersigned individuals, each of whom is a member of the Company’s board of directors and/or management team and who, along with the Sponsor and other transferees of the applicable Company securities, is referred to as an “Insider” pursuant to the terms of the Letter Agreement (as defined below). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Letter Agreement (as defined below) (and if such term is not defined in the Letter Agreement, then in the Merger Agreement (as defined below)).
RECITALS
WHEREAS, Company, the Sponsor and the other undersigned Insiders are parties to that certain Letter Agreement, dated as of October 31, 2024 (the “Original Letter Agreement” and, as amended by this Amendment, the “Letter Agreement”), pursuant to which the Sponsor and the undersigned Insiders agreed, among other matters, to (i) waive their redemption rights with respect to their Class A Ordinary Shares that they may have in connection with the consummation of the proposed Business Combination, (ii) waive their rights to liquidating distributions from the trust account with respect to their Founder Shares (although they will be entitled to liquidating distributions from the trust account with respect to any Offering Shares), (iii) vote any Ordinary Shares owned by it, him or her in favor of any proposed Business Combination for which the Company seeks approval, and (iv) comply with certain transfer restrictions with respect to the Founder Shares (or the Class A Ordinary Shares issuable upon conversion of the Founder Shares) and the Private Placement Units (including the underlying private placement warrants, Class A Ordinary Shares and Class A Ordinary Shares issuable upon exercise of the private placement warrants);
WHEREAS, on August 17, 2026, (i) the Company, (ii) Target, and (iii) Hugo Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Merger Sub”) entered into that certain Agreement and Plan of Merger (as may be amended, modified, supplemented and/or restated from time to time in accordance with the terms thereof, the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement, subject to the terms and conditions thereof, upon consummation of the transactions (the “Transactions”) contemplated by the Merger Agreement (the “Closing”), among other matters, (a) the Company will continue out of the Cayman Islands and become domesticated as a corporation in the state of Delaware, and (b) Merger Sub will merge with and into Target (the “Merger”), with Target surviving such merger as a wholly-owned subsidiary of the Company, all upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with applicable Law;
WHEREAS, the parties hereto desire to amend the Letter Agreement to remove the lock-up period applicable to up to 2,038,424 Founder Shares as are actually used to incentivize commitments for Initial PIPE Financing, any Additional Transaction Financing, and any transactions or arrangements into which the Company may enter into for the purpose of securing commitments from Public Shareholders not to redeem their Company shares at or prior to the Closing (or other agreements or arrangements with like effect); and
WHEREAS, pursuant to Section 12 of the Letter Agreement, the Letter Agreement can be amended with the written consent of all parties thereto.
NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Amendments to the Letter Agreement. The Parties hereby agree to the following amendments to the Letter Agreement:
(a) The defined terms in this Amendment, including without limitation in the preamble and recitals hereto, and the definitions incorporated by reference from the Merger Agreement, are hereby added to the Letter Agreement as if they were set forth therein.
(b) Effective upon the Closing, Section 8 of the Letter Agreement is hereby amended by inserting the following new clause immediately after clause (c):
“(d) effective as of the Closing (i) up to 2,038,424 Founder Shares as are actually used to secure commitments for Initial PIPE Financing, any Additional Transaction Financing, and any transactions or arrangements into which the Company may enter into for the purpose of securing commitments from Public Shareholders not to redeem their Company shares at or prior to the Closing (or other agreements or arrangements with like effect) that are consummated prior to the Closing shall be released from the Lock-up, subject to and contingent upon the Closing, and (ii) an additional 118,196 Founder Shares shall be released from Lock-up, subject to and contingent upon the Closing.”
2. Effectiveness. Notwithstanding anything to the contrary contained herein, this Amendment shall become effective upon the Closing. In the event that the Merger Agreement is terminated in accordance with its terms prior to the Closing, this Amendment and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
3. Intended Third Party Beneficiary. Effective upon the Closing, Target shall be an intended third-party beneficiary of Sections 1 and 8 of the Letter Agreement and this Section 3 of this Amendment and shall be entitled to enforce such sections as an actual party thereto and hereto. Each of the parties to the Letter Agreement agrees that neither Sections 1 nor 8 of the Letter Agreement shall be modified or amended and no waiver shall be granted without the express prior written consent of Target.
4. Miscellaneous. Except as expressly provided in this Amendment, all of the terms and provisions in the Letter Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Letter Agreement, or any other right, remedy, power or privilege of any party thereto, except as expressly set forth herein. Any reference to the Letter Agreement in the Letter Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Letter Agreement, as amended by this Amendment (or as the Letter Agreement may be further amended or modified in accordance with the terms thereof and hereof). The terms of this Amendment shall be governed by, enforced and construed and interpreted in a manner consistent with the provisions of the Letter Agreement, including without limitation Section 12 thereof.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW}
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IN WITNESS WHEREOF, each party hereto has signed or has caused to be signed by its officer thereunto duly authorized this Amendment to Letter Agreement as of the date first above written.
| Sincerely, |
| NEWBURY STREET II ACQUISITION SPONSOR LLC | |||
| By: | /s/ Thomas Bushey | ||
| Name: | Thomas Bushey | ||
| Title: | Manager | ||
| NEWBURY STREET II ACQUISITION CORP | |||
| By: | /s/ Thomas Bushey | ||
| Name: | Thomas Bushey | ||
| Title: | Chief Executive Officer | ||
| FORT ROBOTICS INC. | |||
| By: | /s/ Samuel Reeves | ||
| Name: | Samuel Reeves | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Amendment to Letter Agreement]
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| By: | /s/ Thomas Bushey | ||
| Name: | Thomas Bushey | ||
| By: | /s/ Anthony James Vinciquerra | ||
| Name: | Anthony James Vinciquerra | ||
| By: | /s/ Jennifer Vescio | ||
| Name: | Jennifer Vescio | ||
| By: | /s/ Josh Gold | ||
| Name: | Josh Gold | ||
| By: | /s/ Ted Seides | ||
| Name: | Ted Seides | ||
| By: | /s/ Jake Gudoian | ||
| Name: | Jake Gudoian | ||
| By: | /s/ William Zachre Wyatt | ||
| Name: | William Zachre Wyatt | ||
| Accepted and agreed: | ||
| BTIG, LLC | ||
| By: | /s/ Edward Kovary Jr. | |
| Name: | Edward Kovary Jr. | |
| Title: | Head of SPAC Capital Markets | |
[Signature Page to Amendment to Letter Agreement]
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Exhibit 10.6
EXECUTION VERSION
CERTAIN INFORMATION HAS BEEN REDACTED FROM THIS EXHIBIT (A) BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL OR (B) IN ACCORDANCE WITH ITEM 601(A)(6) OF REGULATION S-K DUE TO PERSONAL PRIVACY CONCERNS. INFORMATION THAT HAS BEEN SO REDACTED FROM THIS EXHIBIT HAS BEEN MARKED WITH “[***]” TO INDICATE THE OMISSION.
SPONSOR LETTER AGREEMENT
This SPONSOR LETTER AGREEMENT (this “Agreement”) is made and entered into as of August 17, 2026, by and among (i) Newbury Street II Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”), (ii) Newbury Street II Acquisition Corp, a Cayman Islands exempted company (“SPAC”), and (iii) Fort Robotics, Inc., a Delaware corporation (the “Company”). Capitalized terms used but not defined in this Agreement will have the meanings ascribed to such terms in the Agreement and Plan of Merger, by and among SPAC, Hugo Merger Sub Inc., a Delaware corporation and a direct wholly owned Subsidiary of SPAC (“Merger Sub”) and the Company, dated as of the date hereof (as it may be amended, supplemented, modified and/or restated from time to time in accordance with its terms, the “Merger Agreement”).
WHEREAS, Sponsor owns 6,118,000 Class B ordinary shares, par value $0.0001 per share, of SPAC (the “Class B Ordinary Shares”, and together with any Class A Ordinary Shares (as defined below) issued upon conversion of such shares, the “Founder Shares”);
WHEREAS, in connection with SPAC’s initial public offering, SPAC, Sponsor and certain officers and directors of SPAC (collectively, the “Insiders”) entered into a letter agreement, dated as of October 31, 2024 (as may be amended from time to time, the “Insider Letter”), pursuant to which Sponsor and the Insiders agreed to certain voting requirements, transfer restrictions and waiver of redemption rights with respect to the SPAC securities owned by them;
WHEREAS, Articles 17.3 and 17.4 of SPAC’s Amended and Restated Memorandum and Articles of Association (the “SPAC Charter”) provides, among other matters, that the Class B Ordinary Shares will automatically convert into Class A ordinary shares, par value $0.0001 per share, of SPAC upon the consummation of an initial business combination, subject to adjustment if additional Class A Ordinary Shares (together with any successor equity security thereto in the Transactions (as defined below), “Class A Ordinary Shares”) or Equity-linked Securities (as defined in the SPAC Charter)), are issued or deemed issued in excess of the amounts sold in SPAC’s initial public offering (the “Anti-Dilution Right”), excluding certain exempted issuances;
WHEREAS, concurrently with the execution and delivery of this Agreement, SPAC, Merger Sub and the Company are entering into the Merger Agreement, pursuant to which and subject to the terms and conditions therein, among other matters: (a) SPAC will continue out of the Cayman Islands and become domesticated as a corporation in the state of Delaware (the “Domestication”) and (b) upon the consummation of the transactions contemplated thereby (the “Closing”), Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving such merger as a wholly-owned subsidiary of SPAC, and as a result of which all of the issued and outstanding capital stock of the Company as of immediately prior to the Effective Time shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, in exchange for the right to receive pro rata share of the Merger Consideration as set forth in the Merger Agreement, all in accordance with applicable Law (the transactions contemplated by the Merger Agreement, the “Transactions”); and
WHEREAS, as a condition and inducement to the Company’s willingness to enter into the Merger Agreement, the Company has required that Sponsor enter into this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto agree as follows:
Section 1 Forfeiture. Prior to the conversion of the SPAC Class B Ordinary Shares into SPAC Class A Ordinary Shares in accordance with the Merger Agreement and solely in connection with and only for the purpose of the proposed Transactions, Sponsor shall, subject to and conditioned upon the Closing occurring, automatically and irrevocably surrender and forfeit, for no consideration, 348,917 Founder Shares (the “Forfeited Shares”). The Forfeited Shares shall be automatically and immediately cancelled by SPAC (and SPAC shall direct SPAC’s transfer agent, or such other intermediaries as appropriate, to take any and all such actions incident thereto). SPAC and Sponsor shall take such actions as are necessary to cause the Forfeited Shares to be retired and canceled, after which such Forfeited Shares shall no longer be issued and outstanding.
Section 2 Incentive Founder Shares.
(a) The Sponsor shall utilize up to 2,038,424 Founder Shares (the “Incentive Founder Shares”) (and shall provide prior written notice to the Company with respect to any such utilization) to secure Trust Account non-redemption arrangements or otherwise incentivize potential investors in connection with the Initial PIPE Financing or any additional Transaction Financing, upon terms to be mutually agreed by the Sponsor, the Company and any such investors (the “Investors”); provided, however, that any transfer of Incentive Founder Shares to the Investors must be permitted or receive any required approvals under the Insider Letter, including, without limitation, that, absent any agreement among the parties to the Insider Letter to the contrary, the Incentive Founder Shares shall continue to be subject to the restrictions set forth in the Insider Letter and any such Investors who have received Incentive Founder Shares shall have entered into written agreements to be bound by the restrictions therein.
(b) The Sponsor hereby agrees that, (i) 302,110 of any Incentive Founder Shares that are not transferred to Investors as contemplated by Section 2(a) hereof (the “Earnout Incentive Founder Shares”) shall be subject to the Earn-Out provisions set forth in Section 3 and (ii) contingent upon and subject to the Closing, the Sponsor shall deliver, for no consideration, any remaining Incentive Founder Shares that are not transferred to Investors as contemplated by Section 2(a) hereof to SPAC for cancellation.
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Section 3 Sponsor Earn-Out.
(a) Sponsor hereby agrees that, upon and subject to the Closing, it will not (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership with respect to, or (iii) publicly announce any intention to effect any transaction specified in clause (i) or (ii) with respect to, (x) 453,159 of the 6,118,000 Founder Shares owned by Sponsor and (y) the Earnout Incentive Founder Shares (together with any equity securities paid as dividends or distributions with respect to such Founder Shares and Earnout Incentive Founder Shares or into which such Founder Shares and Earnout Incentive Founder Shares are exchanged or converted, in either case, after the Closing, the “Earn-Out Shares”), unless, until and to the extent that a Release Event (as defined below) has occurred with respect to such Earn-Out Shares; provided, that Sponsor may, by providing notice to SPAC and the Company prior to or promptly after such transfer, transfer all or any portion of the Earn-Out Shares to any person or entity that qualifies as a permitted transferee under Section 8(c) of the Insider Letter (each, a “Permitted Transferee”), so long as such Permitted Transferee agrees in writing to be bound by the terms of this Agreement that apply to Sponsor hereunder with respect to such Earn-Out Shares. In the event that a Release Event has not occurred during the four year period after the Closing (the “Earnout Period”) with respect to all of the Earn-Out Shares, Sponsor hereby agrees to forfeit any of its Earn-Out Shares that have not been subject to a Release Event (a “Sponsor Forfeiture”). In order to effectuate a Sponsor Forfeiture in the event that a Release Event has not theretofore occurred with respect to all Earn-Out Shares, upon the expiration of the Earnout Period, Sponsor shall promptly, but in any event within five (5) Business Days, deliver its Earn-Out Shares that have not been subject to a Release Event to SPAC in certificated or book entry form (at the election of Sponsor) for cancellation by SPAC. The share certificates representing the Earn-Out Shares shall contain a legend relating to transfer restrictions imposed by this Section 3 and the risk of a Sponsor Forfeiture associated with the Earn-Out Shares. SPAC will use its best efforts to cause such legend to be removed as promptly as practicable, but in any event within two (2) Business Days, after the written request by Sponsor following a Release Event with respect to such Earn-Out Shares. Until and unless the Earn-Out Shares are forfeited, Sponsor will have full ownership rights to the Earn-Out Shares, including the right to vote such shares and to receive dividends and distributions thereon.
(b) The Earn-Out Shares shall vest and no longer be subject to a Sponsor Forfeiture as follows (each, as applicable to the relevant Earn-Out Shares, a “Release Event”):
(i) if the VWAP of the SPAC Common Stock equals or exceeds $12.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations, the “Tier I Share Price Target”) for any twenty (20) Trading Days within any consecutive thirty (30) Trading Day period during the Earnout Period, 50% of the Earn-Out Shares will vest and no longer be subject to a Sponsor Forfeiture or the transfer restrictions in this Section 2.
(ii) if the VWAP of the SPAC Common Stock equals or exceeds $15.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations, the “Tier II Share Price Target” and a Tier I Share Price Target and Tier II Share Price Target, each a “Share Price Target”) for any twenty (20) Trading Days within any consecutive thirty (30) Trading Day period during the Earnout Period, the remaining 50% of the Earn-Out Shares will vest and no longer be subject to a Sponsor Forfeiture or the transfer restrictions in this Section 2.
The achievement of the Tier II Share Price Target shall be deemed to include the achievement of the Tier I Share Price Target not previously achieved, and, in such case, the Earn-Out Shares attributable to each such Share Price Target shall vest together.
(c) Notwithstanding the foregoing, in the event that during the Earnout Period, (i) SPAC is subject to a Change of Control, and (ii) the implied consideration per share of SPAC Common Stock pursuant to which SPAC or its stockholders have the right to receive in such Change of Control equals or exceeds the Tier I Share Price Target (or the equivalent fair market value thereof, as determined by the Post-Closing SPAC Board in good faith, in the event of any non-cash consideration), then, all of the Earn-Out Shares that have not previously vested shall vest and shall no longer be subject to a Sponsor Forfeiture.
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(d) The applicable number of Earn-Out Shares released for each applicable Release Event shall be subject to equitable adjustment for stock splits, stock dividends, reorganizations, combinations, recapitalizations and similar transactions affecting the SPAC Common Stock after the Closing.
Section 4 General.
(a) Termination. This Agreement shall terminate at such time, if any, as the Merger Agreement is terminated in accordance with its terms prior to the Closing, and upon such termination this Agreement shall be null and void and of no effect whatsoever, and the parties hereto shall have no obligations under this Agreement; provided, however, that no termination of this Agreement shall relieve or release a party from any obligations or liabilities arising out of such party’s breaches of this Agreement prior to such termination.
(b) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person, (b) by email with affirmative confirmation of receipt, (c) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (d) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party hereto at the following addresses (or at such other address for a party hereto as shall be specified by like notice):
|
If to SPAC prior to the Closing or to Sponsor, to: |
with a copy (which will not constitute notice) to: Barry I. Grossman, Esq. [***] |
|
|
Fenwick & West LLP |
(c) Entire Agreement. This Agreement (together with the other Ancillary Documents, the Merger Agreement and each of the other documents and the instruments referred to herein, to the extent incorporated herein) constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and thereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or thereof.
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(d) Governing Law; Jurisdiction; Waiver of Jury Trial. Sections 9.6 and 9.7 of the Merger Agreement shall apply to this Agreement mutatis mutandis.
(e) Remedies. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of any rights or remedies otherwise available. The parties hereto agree that irreparable damage could occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to specific enforcement of the terms and provisions of this Agreement, in addition to any other remedy to which any party is entitled at law or in equity. In the event that any Action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.
(f) Amendments and Waivers. This Agreement may be amended or modified only with the written consent of SPAC, the Company and Sponsor. 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 party against whom enforcement of such waiver is sought. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. 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.
(g) Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.
(h) Assignment. No party hereto may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties; provided, that in the event that Sponsor transfers any of its Founder Shares (including Earn-Out Shares) to any Permitted Transferee in accordance with Section 8(c) of the Insider Letter and this Agreement, Sponsor may, by providing notice to SPAC and the Company prior to or promptly after such transfer, transfer its rights and obligations under this Agreement with respect to such securities to such Permitted Transferee so long as such Permitted Transferee agrees in writing to be bound by the terms of this Agreement that apply to Sponsor hereunder with respect to such securities. Any purported assignment in violation of this Section 4(h) shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on the undersigned and their respective successors and permitted assigns.
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(i) Costs and Expenses. Subject to Section 7.3 of the Merger Agreement, each party to this Agreement will pay its own costs and expenses (including legal, accounting and other fees) relating to the negotiation, execution, delivery and performance of this Agreement.
(j) No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between any of the parties hereto. No party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Without in any way limiting the rights or obligations of any party hereto under this Agreement, prior to the Effective Time, (i) no party shall have the power by virtue of this Agreement to control the activities and operations of any other and (ii) no party shall have any power or authority by virtue of this Agreement to bind or commit any other party. No party shall hold itself out as having any authority or relationship in contravention of this Section 4(j).
(k) Capacity as Shareholder. Sponsor signs this Agreement solely in its capacity as a shareholder of SPAC, and not in its capacity as a director (including “director by deputization”), officer or employee of SPAC, if applicable. Nothing herein shall be construed to limit, or affect any actions or inactions by Sponsor or any representative of Sponsor, as applicable, serving in the capacity of a director of SPAC or any Subsidiary of SPAC, acting in such person’s capacity as a director or officer of SPAC or any Subsidiary of SPAC (it being understood and agreed that the Merger Agreement contains provisions that govern the actions or inactions by the directors of SPAC with respect to the Merger and the other Transactions).
(l) Headings; Interpretation. The headings and subheadings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) the term “including” (and with correlative meaning “include”) shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “hereof,” “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; (iv) the term “or” means “and /or”; and (v) references to “written” or in “writing” include in electronic form. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(m) Counterparts. This Agreement may be executed and delivered (including by facsimile, portable document format or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
[The next page is the signature page]
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IN WITNESS WHEREOF, the parties hereto have executed this Sponsor Letter Agreement as of the date first written above.
| NEWBURY STREET II ACQUISITION CORP | ||
| By: | /s/ Thomas Bushey | |
| Name: | Thomas Bushey | |
| Title: | Chief Executive Officer | |
| FORT ROBOTICS, INC. | ||
| By: | /s/ Samuel Reeves | |
| Name: | Samuel Reeves | |
| Title: | Chief Executive Officer | |
| NEWBURY STREET II ACQUISITION SPONSOR LLC | ||
| By: | /s/ Thomas Bushey | |
| Name: | Thomas Bushey | |
| Title: | Manager | |
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Exhibit 10.7
EXECUTION VERSION
CERTAIN INFORMATION HAS BEEN REDACTED FROM THIS EXHIBIT (A) BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL OR (B) IN ACCORDANCE WITH ITEM 601(A)(6) OF REGULATION S-K DUE TO PERSONAL PRIVACY CONCERNS. INFORMATION THAT HAS BEEN SO REDACTED FROM THIS EXHIBIT HAS BEEN MARKED WITH “[***]” TO INDICATE THE OMISSION.
SPONSOR SUPPORT AGREEMENT
THIS SPONSOR SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of August 17, 2026, by and among (i) Newbury Street II Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”), (ii) Newbury Street II Acquisition Corp, a Cayman Islands exempted company (together with its successors, including after giving effect to the Domestication (as defined below), “SPAC”), and (iii) Fort Robotics, Inc., a Delaware corporation (the “Company”). Capitalized terms used but not defined in this Agreement will have the meanings ascribed to such terms in the Agreement and Plan of Merger, by and among SPAC, Hugo Merger Sub Inc., a Delaware corporation and a direct wholly owned subsidiary of SPAC (“Merger Sub”) and the Company, dated as of the date hereof (as it may be amended, supplemented, modified and/or restated from time to time in accordance with the terms thereof, the “Merger Agreement”).
WHEREAS, Sponsor owns 484,500 SPAC Class A Ordinary Shares (the “Sponsor Private Placement Shares”), which were included in the private placement units (the “Private Placement Units”) issued to the Sponsor in a private placement transaction consummated in connection with the SPAC’s initial public offering (the “IPO”) and 6,118,000 SPAC Class B Ordinary Shares (the “Founder Shares”, and together with the Sponsor Private Placement Shares, the “Sponsor Shares”), which were issued to Sponsor in private placement transactions consummated in connection with the IPO;
WHEREAS, Sponsor owns 242,250 SPAC Private Warrants, which were included in the Private Placement Units (the “Sponsor Warrants”);
WHEREAS, in connection with the IPO, the officers and directors of SPAC (each, an “Insider” and collectively, the “Insiders”) together with Sponsor and SPAC entered into a letter agreement, dated as of October 31, 2024 (as may be amended, supplemented, modified and/or restated from time to time in accordance with its terms, the “Insider Letter”), pursuant to which Sponsor and the Insiders agreed, among other matters, to (i) waive any redemption rights that Sponsor or such Insider may have in connection with the consummation of an initial business combination with respect to any SPAC Class A Ordinary Shares owned by Sponsor or such Insider, (ii) waive any rights to liquidating distributions from the Trust Account with respect to the Sponsor Shares (although they will be entitled to liquidating distributions from the Trust Account with respect to any SPAC Class A Ordinary Shares sold in the IPO as part of the SPAC Public Units), (iii) vote all Founder Shares and any SPAC Class A Ordinary Shares acquired by Sponsor or such Insider in the IPO or the secondary public market, in favor of an initial Business Combination for which SPAC seeks approval, except that Sponsor or such Insider shall not vote any SPAC Class A Ordinary Shares purchased after SPAC publicly announces its intention to engage in a proposed Business Combination for or against such proposed Business Combination and (iv) certain transfer restrictions with respect to the Sponsor Shares, the Sponsor Warrants (and the SPAC Ordinary Shares underlying such Sponsor Warrants);
WHEREAS, Article 17.3 of SPAC’s amended and restated memorandum and articles of association (as amended, the “SPAC Charter”) provides, among other matters, that the SPAC Class B Ordinary Shares will automatically convert into SPAC Class A Ordinary Shares on a one-for-one basis upon the consummation of an initial business combination, subject to adjustment pursuant to Article 17.4 of the SPAC Charter if additional SPAC Class A Ordinary Shares or any other Equity-linked Securities (as defined in the SPAC Charter), are issued or deemed issued in excess of the amounts sold in the IPO (the “Anti-Dilution Right”), excluding certain exempted issuances;
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions thereof, upon consummation of the transactions contemplated by the Merger Agreement (the “Transactions”), among other matters, (a) SPAC will continue out of the Cayman Islands and become domesticated as a corporation in the state of Delaware (the “Domestication”), (b) Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving such merger as a wholly-owned subsidiary of SPAC (the “Surviving Corporation”) and (c) and as a result of which all of the issued and outstanding capital stock of the Company as of immediately prior to the effective time of the Merger shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, in exchange for which the security holders of the Company shall have the right to receive its pro rata share of the Merger Consideration as set forth in the Merger Agreement, all in accordance with applicable Law; and
WHEREAS, as a condition and inducement to the Company’s willingness to enter into the Merger Agreement, the Company has required that Sponsor enter into this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto agree as follows:
Section 1 Enforcement of Sponsor Voting Requirements, Transfer Restrictions and Redemption Waiver. During the Interim Period, for the benefit of the Company, (i) Sponsor agrees that it will fully comply with, and perform all of their obligations, covenants and agreements set forth in the Insider Letter in all material respects, and shall (A) cause all of the SPAC Ordinary Shares owned by it to be counted as present at the SPAC Extraordinary General Meeting (including any adjournment or postponement thereof) for purposes of calculating a quorum thereat, (B) vote (or cause to be voted) all of the SPAC Ordinary Shares owned by it (1) in favor of the Transactions, including approving each of the SPAC Shareholder Approval Matters and, if necessary or desirable in the reasonable determination of the chairman of the SPAC Extraordinary General Meeting, the adjournment of the SPAC Extraordinary General Meeting, and (2) against (x) any Acquisition Proposal or Alternative Transaction, (y) any merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by SPAC, any change in the business of SPAC, any change in the business, management or Board of Directors of SPAC (other than in connection with the SPAC Shareholder Approval Matters as contemplated by the Merger Agreement), or any change in the dividend policy or capitalization of SPAC, in each case other than the Transactions, and (z) any proposal, action or agreement involving SPAC that would or would reasonably be expected to (i) impede, frustrate, prevent or nullify any provision of this Agreement, the Merger Agreement or any Ancillary Document, (ii) result in a breach in any material respect of any covenant, representation, warranty or any other obligation or agreement of SPAC under the Merger Agreement or any Ancillary Document, or (iii) result in any of the conditions in respect of obligations of SPAC set forth in Article VI of the Merger Agreement not being fulfilled, (C) waive any redemption rights that it may have in connection with the Closing with respect to any SPAC Class A Ordinary Shares owned by it and (D) fully comply with the transfer restrictions set forth in the Insider Letter with respect to the Sponsor Shares and the Sponsor Warrants, in each case subject to the exceptions set forth in the Insider Letter, provided that, in the case of any permitted Transfer (as defined in the Insider Letter) pursuant to the terms of the Insider Letter, the permitted transferee (the “Permitted Transferee”) must enter into a written agreement with the Company and SPAC agreeing to be bound by the provisions of this Agreement and the Insider Letter; and (ii) SPAC agrees (A) to enforce the Insider Letter in accordance with its terms, and (B) not to amend, modify or waive any provision of the Insider Letter without the prior written consent of the Company (not to be unreasonably withheld, delayed or conditioned).
Section 2 Waiver of Anti-Dilution Protection. Sponsor, as the holder of all of the issued and outstanding SPAC Class B Ordinary Shares, hereby irrevocably and unconditionally (solely in connection with, and subject to and conditioned upon, the Closing), waives any adjustment pursuant to the Anti-Dilution Right and any other anti-dilution protections, and agrees that, upon the Closing, the SPAC Class B Ordinary Shares will automatically convert into SPAC Class A Ordinary Shares at the Initial Conversion Ratio (as defined in the SPAC Charter) in connection with the Transactions. This waiver shall be void and of no force and effect following the date on which the Merger Agreement is validly terminated in accordance with its terms. All other terms in the SPAC Charter related to the SPAC Class B Ordinary Shares shall remain in full force and effect, except as contemplated by the Merger Agreement or the Ancillary Documents.
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Section 3 Representations and Warranties of Sponsor. Sponsor represents and warrants to the Company, as follows:
(a) Authorization. Sponsor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement by Sponsor and the consummation by Sponsor of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Sponsor and no other proceedings on the part of Sponsor or Sponsor’s equityholders are necessary to authorize the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby except as have been obtained prior to the date of this Agreement. This Agreement has been duly and validly executed and delivered by Sponsor, and assuming the due execution and delivery by the Company and SPAC, constitutes the legal, valid and binding obligation of Sponsor, enforceable against Sponsor in accordance with its terms, except as limited by Laws affecting or relating to the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Authority before which any Action seeking enforcement may be brought.
(b) Consents and Approvals; No Violations.
(i) The execution, delivery and performance of this Agreement by Sponsor and the consummation by Sponsor of the transactions contemplated hereby do not and will not require any filing or registration with, notification to, or authorization, permit, license, declaration, consent of, or other action by or in respect of, any Governmental Authority or stock exchange on the part of Sponsor.
(ii) The execution, delivery and performance by Sponsor of this Agreement, the consummation by Sponsor of the transactions contemplated by this Agreement and compliance by Sponsor with any of the provisions hereof do not and will not (A) conflict with or violate any provision of the Sponsor’s Organizational Documents in any material respect, (B) conflict with or violate any Law, Order or consent applicable to Sponsor or any of its properties or assets or (C) result in any material violation or breach of, or materially conflict with, or constitute (with or without notice or lapse of time or both) a material default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any material benefit under, or result in the triggering of any material payments pursuant to, any of the terms, conditions or provisions of, any Contract to which Sponsor is a party, except in the case of clauses (B) and (C) above as would not reasonably be expected, either individually or in the aggregate, to impair in any material respect the ability of Sponsor to timely perform its obligations hereunder or consummate the transactions contemplated hereby.
(iii) There are no pending or threatened actions, suits or proceedings against Sponsor that would prevent or materially impair Sponsor’s ability to perform its obligations under this Agreement or consummate the transactions contemplated hereby.
(c) Ownership of Sponsor Shares. (i) As of the date hereof, Sponsor is the sole record owner of all of the Sponsor Shares, free and clear of all Liens (other than Liens arising under applicable securities Laws, this Agreement and the Insider Letter), (ii) as of the date hereof, Sponsor has the sole voting power with respect to such Sponsor Shares and (iii) Sponsor has not entered into any voting agreement (other than this Agreement and the Insider Letter) with or granted any Person any proxy (revocable or irrevocable) with respect to such Sponsor Shares.
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(d) Ownership of Sponsor Warrants. As of the date hereof, Sponsor is the sole record owner of all of the Sponsor Warrants, free and clear of all Liens (other than Liens arising under applicable securities Laws, this Agreement and the Insider Letter).
(e) No Other SPAC Equity Interests. As of the date hereof, Sponsor is not the holder or beneficial owner of any equity interest of SPAC other than the Sponsor Shares and Sponsor Warrants.
(f) Contracts with SPAC. Except for (a) the Contracts disclosed in the SPAC Disclosure Schedules and (b) any Contract filed as an exhibit to a form, report, schedule, statement or other document that is publicly filed with the SEC, none of Sponsor nor any of the Affiliates of the Sponsor is a party to any Contract with SPAC.
Section 4 Further Assurances. Sponsor hereby agrees that it shall, from time to time, (a) execute and deliver, or cause to be executed and delivered, such Ancillary Documents as may be necessary to satisfy any condition to the Closing under the Merger Agreement, in substantially the form previously provided to Sponsor as of the date of this Agreement, and (b) shall undertake reasonable best efforts to (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments and (ii) take, or cause to be taken, such actions, and do, or cause to be done, and assist and cooperate with the other parties in doing such things, in each case, as are reasonably necessary for the purpose of effectively carrying out the transactions contemplated by the Merger Agreement and this Agreement; provided, that (i) Sponsor shall not commence, join in, facilitate, assist or encourage any claim or proceeding challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement, the Merger Agreement or the Transactions, or alleging breach of fiduciary duty in connection therewith, and shall opt out of any related class action; and (ii) Sponsor shall not enter into any agreement that would restrict, limit or interfere with its performance hereunder; provided further, that, notwithstanding clauses (i) and (ii), nothing herein shall prohibit Sponsor from assisting or supporting the SPAC (including by providing working capital loans or other financing) in connection with any claim, action or proceeding brought by the SPAC arising out of or relating to the Merger Agreement, any Ancillary Documents or the Transactions.
Section 5 General.
(a) Termination. This Agreement shall terminate on the earlier to occur of (a) the Closing or (b) at such time, if any, as the Merger Agreement is terminated in accordance with its terms prior to the Closing, and upon such termination, this Agreement shall be null and void and of no effect whatsoever, and the parties hereto shall have no obligations under this Agreement; provided, however, that no termination of this Agreement shall relieve or release a party hereto from any obligations or liabilities for any willful breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such party, in either case prior to such termination. Notwithstanding the foregoing, [Sections 2] and 5 shall survive any termination of this Agreement pursuant to clause (a) of the immediately preceding sentence in accordance with their terms.
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(b) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (a) in person, (b) by email with affirmative confirmation of receipt, (c) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (d) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party hereto at the following addresses (or at such other address for a party hereto as shall be specified by like notice):
|
If to SPAC or Sponsor at or prior to the Closing, to: |
with a copy (which will not constitute notice) to:
Ellenoff Grossman & Schole LLP Barry I. Grossman, Esq. Telephone No.: (212) 370-1300 [***] |
|
If to the Sponsor, to: |
with a copy (which will not constitute notice) to: Barry I. Grossman, Esq. Telephone No.: (212) 370-1300 Email: [***]; [***] |
|
If to the Company, to: |
with a copy (which will not constitute notice) to: |
(c) Entire Agreement. This Agreement (together with the other Ancillary Documents, the Merger Agreement and each of the other documents and the instruments referred to herein, to the extent incorporated herein) constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and thereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or thereof.
(d) Governing Law; Jurisdiction; Waiver of Jury Trial. Sections 9.6 and 9.7 of the Merger Agreement shall apply to this Agreement mutatis mutandis.
(e) Remedies. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of any rights or remedies otherwise available. The parties hereto agree that irreparable damage could occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to seek specific enforcement of the terms and provisions of this Agreement, in addition to any other remedy to which any party hereto is entitled at law or in equity. In the event that any Action shall be brought in equity to enforce the provisions of this Agreement, no party hereto shall allege, and each party hereto hereby waives the defense, that there is an adequate remedy at law, and each party hereto agrees to waive any requirement for the securing or posting of any bond in connection therewith.
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(f) Amendments and Waivers. This Agreement may be amended or modified only with the written consent of SPAC, the Company and Sponsor. 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 party hereto against whom enforcement of such waiver is sought. No failure or delay by a party hereto in exercising any right hereunder shall operate as a waiver thereof. 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.
(g) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The parties further agree that if any provision contained herein is, to any extent, held invalid, illegal or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.
(h) Assignment. No party hereto may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties; provided, that in the event that Sponsor transfers any of its Sponsor Shares or Sponsor Warrants to any Permitted Transferee in accordance with this Agreement and the Insider Letter, Sponsor shall, by providing notice to SPAC and the Company prior to such Transfer (as defined in the Insider Letter), transfer its rights and obligations under this Agreement with respect to such securities to such Permitted Transferee, who shall be required to agree in writing to be bound by the terms and conditions of this Agreement and the Insider Letter. Notwithstanding the foregoing, Sponsor shall remain secondarily liable for any obligations under this Agreement. Any purported assignment in violation of this Section 5(h) shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on the undersigned and their respective successors and permitted assigns.
(i) Costs and Expenses. Subject to Section 7.3 of the Merger Agreement, each party to this Agreement will pay its own costs and expenses (including legal, accounting and other fees) relating to the negotiation, execution, delivery and performance of this Agreement.
(j) No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between any of the parties hereto. No party hereto is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party hereto. Without in any way limiting the rights or obligations of any party hereto under this Agreement, prior to the Closing, (i) no party hereto shall have the power by virtue of this Agreement to control the activities and operations of any other and (ii) no party hereto shall have any power or authority by virtue of this Agreement to bind or commit any other party hereto. No party hereto shall hold itself out as having any authority or relationship in contravention of this Section 5(j).
(k) Publicity. Section 5.14 of the Merger Agreement shall apply to this Agreement mutatis mutandis.
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(l) Capacity as Shareholder. Sponsor signs this Agreement solely in its capacity as a shareholder of SPAC, and not in its capacity as a director (including “director by deputization”), officer or employee of SPAC, if applicable. Nothing herein shall be construed to: (i) restrict, limit, prohibit or affect any actions or inactions by Sponsor or any representative of Sponsor, as applicable, serving in the capacity of a director or officer of SPAC or any Subsidiary of SPAC, acting in such person’s capacity as a director or officer of SPAC or any Subsidiary of SPAC (it being understood and agreed that the Merger Agreement contains provisions that govern the actions or inactions by the directors and officers of SPAC with respect to the Merger and the other Transactions) or (ii) prohibit, limit or restrict the exercise of any fiduciary duties as director or officer of SPAC that is otherwise permitted by, and done in compliance with, the terms of the Merger Agreement (and in each case of clauses (i) and (ii), without limiting Sponsor’s obligations hereunder in its capacity as a shareholder of SPAC).
(m) Affiliates. In this Agreement, the term “Affiliates”, when used with respect to a particular Person, means any other Person directly or indirectly controlling, controlled by or under common control with such Person, whether through one or more intermediaries or otherwise, and the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise. Notwithstanding the foregoing, (i) Affiliates of the Sponsor shall only include SPAC and Persons directly or indirectly controlled by SPAC, and Sponsor and SPAC (and each of their respective Affiliates) shall be deemed not to be Affiliates of each other for purposes of this Agreement and (ii) no private investment fund (or similar vehicle) or business development company, or any other investment account, fund, vehicle or other client advised or sub-advised by Sponsor or by Sponsor’s Affiliates or any portfolio companies thereof shall be deemed to be an Affiliate of Sponsor, except to the extent any such Person is expressly requested or directed by Sponsor to take any action which would constitute a breach of this Agreement if taken by Sponsor, and such Person actually takes such prohibited action (it being understood and agreed that this Agreement shall not otherwise apply to, or be binding on, any Persons described in this clause (ii)).
(n) No Recourse. Neither SPAC nor any of its Subsidiaries, nor any of the past, present or future shareholders of SPAC (other than Sponsor or any permitted transferee thereof), nor any director, officer, employee, member, partner, shareholder or other owner (whether direct or indirect), Affiliate, agent, attorney or representative of Sponsor, shall have any obligation or liability for the obligations or liabilities of Sponsor under this Agreement. Without limiting the foregoing, this Agreement may only be enforced against the persons or entities that have executed and delivered a counterpart to this Agreement.
(o) Headings; Interpretation. The headings and subheadings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) the term “including” (and with correlative meaning “include”) shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “hereof,” “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; (iv) the term “or” means “and /or”; (v) the word “extent” in the phrase “to the extent” means the degree to which a subject or thing extends, and such phrase shall not simply mean “if’; and (vi) references to written or in writing” include in electronic form. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement.
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(p) Counterparts. This Agreement may be executed and delivered (including by facsimile, portable document format or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
(q) New Shares. In the event that, during the Interim Period, (i) any SPAC Ordinary Shares, warrants to purchase SPAC Ordinary Shares or other equity securities of SPAC are issued to Sponsor in respect of the Sponsor Shares or the Sponsor Warrants, pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of SPAC Ordinary Shares, warrants to purchase SPAC Ordinary Shares or other equity securities of SPAC owned by Sponsor or otherwise, then such SPAC Ordinary Shares, warrants to purchase SPAC Ordinary Shares or other equity securities acquired or purchased by Sponsor shall be subject to the terms of this Agreement to the same extent as if they constituted Sponsor Shares or Sponsor Warrants, as applicable, or (ii) Sponsor (A) purchases or otherwise acquires beneficial ownership of any SPAC Ordinary Shares, warrants to purchase SPAC Ordinary Shares or other equity securities of SPAC after the date of this Agreement, or (B) acquires the right to vote any SPAC Ordinary Shares or other equity securities of SPAC after the date of this Agreement (such SPAC Ordinary Shares, warrants to purchase SPAC Ordinary Shares or other equity securities, collectively the “New Securities”), then such New Securities acquired or purchased by Sponsor shall be subject to the terms of this Agreement to the same extent as if they constituted the Sponsor Shares or Sponsor Warrants owned by Sponsor as of the date hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Sponsor Support Agreement as of the date first written above.
| SPAC: | ||
| NEWBUY STREET II ACQUISITION CORP | ||
| By: | /s/ Thomas Bushey | |
| Name: | Thomas Bushey | |
| Title: | Chief Executive Officer | |
| Sponsor: | ||
| Newbury Street II Acquisition Sponsor LLC | ||
| By: | /s/ Thomas Bushey | |
| Name: | Thomas Bushey | |
| Title: | Manager | |
| The Company: | ||
| FORT ROBOTICS, INC. | ||
| By: | /s/ Samuel Reeves | |
| Name: | Samuel Reeves | |
| Title: | Chief Executive Officer | |
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Exhibit 10.8
CERTAIN INFORMATION HAS BEEN REDACTED FROM THIS EXHIBIT (A) BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL OR (B) IN ACCORDANCE WITH ITEM 601(A)(6) OF REGULATION S-K DUE TO PERSONAL PRIVACY CONCERNS. INFORMATION THAT HAS BEEN SO REDACTED FROM THIS EXHIBIT HAS BEEN MARKED WITH “[***]” TO INDICATE THE OMISSION.
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into this day of August 17, 2026, by and between Newbury Street II Acquisition Corp., a Cayman Islands exempted company (together with its successors, including after the Domestication (as defined below), the “Company”), FORT Robotics, Inc., a Delaware corporation (“FORT”), Newbury Street II Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”) and the undersigned (“Subscriber” or “you”). Defined terms used but not otherwise defined herein shall have the respective meanings ascribed thereto in the Transaction Agreement (as defined below).
WHEREAS, the Company, FORT and Hugo Merger Sub Inc., a Delaware corporation and a direct, wholly owned subsidiary of the Company (“Merger Sub”), are entering into an agreement and plan of merger (as it may be amended, restated and/or supplemented from time to time in accordance with its terms, the “Transaction Agreement”), pursuant to which, among other things: (i) prior to the consummation of the transactions contemplated by the Transaction Agreement (the “Transaction Closing”), the Company will continue out of the Cayman Islands and into the State of Delaware so as to re-domicile as, and become, a Delaware corporation pursuant to Cayman Islands Companies Law (2022 Revision) and the applicable provisions of the Delaware General Corporation Law (the “Domestication”) and (ii) upon the Transaction Closing, among other matters, Merger Sub will merge with and into FORT, with FORT continuing as the surviving corporation and as a wholly-owned subsidiary of the Company (the “Merger” and together with the Domestication and the other transactions contemplated by the Transaction Agreement, collectively, the “Transaction”);
WHEREAS, in connection with and contingent upon the Transaction Closing, and pursuant to the terms and conditions hereof, Subscriber desires to subscribe for and purchase from the Company that number of the Company’s shares of common stock (after giving effect to the Domestication), par value $0.0001 per share (the “Common Stock”), equal to (i) the aggregate purchase price set forth on the signature page hereto (the “Purchase Price”), divided by (ii) $10.00 (the “Per Share Price”) (such shares of Common Stock to be purchased, the “PIPE Common Stock”);
WHEREAS, the Sponsor currently owns 6,118,000 Class B ordinary shares, par value $0.0001 per share, of the Company (the “Founder Shares”);
WHEREAS, the Company expects to hold an extraordinary general meeting of shareholders (the “BCA Meeting”) for the purpose of approving the Transaction, among other things;
WHEREAS, the Company’s organizational documents provide that a shareholder of the Company may redeem its Class A ordinary shares, par value $0.0001 per share (the “Class A Ordinary Shares”), initially sold as part of the units in the Company’s initial public offering (whether they were purchased in the Company’s initial public offering or thereafter in the open market) (the “Public Shares”) in connection with the BCA Meeting (the “Closing Redemption”), on the terms set forth in the Company’s governing documents (the “Redemption Rights”);
WHEREAS, subject to the terms and conditions of this Subscription Agreement, Subscriber has the option to forego the exercise of its Redemption Rights in connection with the Transaction, or to validly rescind any previously submitted redemption demand, of certain of the Public Shares indicated by such Subscriber upon the terms set forth herein (“Non-Redemption Option”);
WHEREAS, the Sponsor desires to transfer to Subscribers a certain number of Founder Shares, with the specific amount for each Subscriber set forth on Schedule A (collectively the “Reallocated Sponsor Shares”);
WHEREAS, Subscribers will have the ability to subscribe for Non-Redemption Options in excess of their currently held Public Shares, and purchase any balance between the subscribed amount and current holdings at a price no higher than the redemption price per share payable to stockholders who exercise Redemption Rights in connection with the Closing Redemption (the “Redemption Price”) in the open market, and if not, then through PIPE Common Stock (collectively the “Balance Shares”);
WHEREAS, the Subscriber may elect to participate in either the Non-Redemption Option or the Offering until the Company’s Closing Redemption and each Subscriber may change their election until the deadline (the “Redemption Deadline”) by which the Company public shareholders must submit their decision to redeem at the Closing Redemption;
WHEREAS, as additional consideration to Subscribers, FORT will, immediately prior to the Transaction Closing, issue Incentive Shares (as defined in Section 1.3 below) that will convert into shares of Common Stock upon Transaction Closing with the specific amount for each Subscriber set forth on Schedule A and the issuance of such number of Incentive Shares will reduce the effective issue price of the PIPE Common Stock to $9.20 per share (the “Per Share Effective Price”);
WHEREAS, the Company desires to issue and sell to Subscriber at the Closing (as defined below) PIPE Common Stock in consideration of the payment of the Purchase Price by or on behalf of Subscriber to the Company on or prior to the Closing (as defined below); and
WHEREAS, in connection with the Transaction, certain other institutional “accredited investors” (within the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the “Securities Act”)) or “qualified institutional buyers” (within the meaning of Rule 144A under the Securities Act) (the “Other Subscribers”) are entering, or are expected to enter, into separate subscription agreements with the Company substantially similar to this Subscription Agreement (“Other Subscription Agreements”), pursuant to which such Other Subscribers, and Subscriber pursuant to this Subscription Agreement, have agreed, severally and not jointly, to purchase on the closing date of the Transaction (the “Closing Date”) shares of Common Stock at the Per Share Price (the “Offering”).
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and pursuant to the terms and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Subscription. Subscriber shall have the ability to participate in either the Non-Redemption Option pursuant to Section 1.1 hereof or the Offering pursuant to Section 1.2 hereof up until the Redemption Deadline, and each Subscriber may change their election up until the Redemption Deadline.
1.1 Non-Redemption Option. Subscribers who elect to pursue the Non-Redemption Option as annotated on Schedule B shall be bound by the following terms:
(i) Upon the terms and subject to the conditions of this Subscription Agreement, Subscriber agrees (i) not to, and shall not submit a request to Company’s transfer agent to, exercise (or if already exercised, Subscriber shall validly rescind) its Redemption Rights with respect to such Public Shares subject to the Non-Redemption Option as set forth on Schedule B (the “Non-Redemption Shares”) in connection with the BCA Meeting or in connection with any other meeting of the Company’s shareholders and (ii) to waive any other rights that it may have to elect to have Non-Redemption Shares redeemed and agrees not to redeem or otherwise exercise any other redemption rights with respect to, the Non-Redemption Shares and to reverse, rescind and revoke any prior redemption elections made with respect to the Non-Redemption Shares in connection with the Business Combination or in connection with any other meeting of the Company’s shareholders. For the avoidance of doubt, nothing in this Subscription Agreement is intended to restrict or prohibit Subscriber’s ability to (i) redeem any Public Shares other than the Non-Redemption Shares, (ii) to trade any Public Shares (other than the Non-Redemption Shares) in its discretion and at any time, or (iii) trade any Non-Redemption Shares in its discretion at any time after the Closing Redemption deadline, provided that Subscriber has validly waived, rescinded or revoked any redemption election with respect to the Non-Redemption Shares in accordance with this Subscription Agreement. If the number of Redemption Rights being exercised at the BCA Meeting equals or exceeds forty percent (40%) of the total Public Shares, Subscriber shall provide evidence of Subscriber’s ownership of the Public Shares sufficient to evidence Subscriber’s beneficial ownership in order to receive Subscriber’s Reallocated Sponsor Shares.
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(ii) Agreement to Vote. At any general meeting of the shareholders of Company, however called, or at any adjournment or postponement thereof, or in any other circumstance in which the vote, consent or other approval of the shareholders of Company is sought from the date hereof until the earlier of (x) the Transaction Closing and (y) such date and time as the Transaction Agreement is terminated therein (the “Expiration Time”), the Subscriber shall (a) appear at each such general meeting in person or by proxy or otherwise and, in any case, cause all of its Non-Redemption Shares to be counted as present thereat for purposes of calculating a quorum and (b) vote (or cause to be voted), or execute and deliver a written resolution (or cause a written resolution to be executed and delivered) covering, all of its Non-Redemption Shares: (i) in favor of any extension of the deadline to complete a business combination, (ii) in favor of each of the SPAC Shareholder Approval Matters (as defined in the Transaction Agreement); (iii) against any business combination proposal or any proposal relating to a business combination proposal (in each case, other than the SPAC Shareholder Approval Matters); (iv) against any merger agreement, business combination agreement, merger, amalgamation, share exchange, asset acquisition, share purchase, scheme of arrangement, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any public offering of any equity securities of the Company (other than the SPAC Shareholder Approval Matters); (v) against any change in the business, management or board of directors of Company (other than in connection with the SPAC Shareholder Approval Matters); (vi) against any proposal, action or agreement that would or would reasonably be expected to (A) impede, interfere with, delay, frustrate, prevent, result in termination or failure to consummate of, or nullify any provision of, this Subscription Agreement, the Transaction Agreement or any other transaction agreement, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of the Subscriber under this Subscription Agreement or of the Company under the Transaction Agreement or any other transaction agreement, (C) result in any of the conditions set forth in the Transaction Agreement not being fulfilled or (D) change in any manner the dividend policy or capitalization of, including the voting rights of any class of share capital of, the Company; and (vii) for any proposal to adjourn or postpone the applicable general meeting of the shareholders of the Company to a later date if (and only if) there are not sufficient votes for approval of the SPAC Shareholder Approval Matters. Notwithstanding anything to the contrary in this Section 1.1(ii), the voting obligations set forth herein shall not apply to any Class A Ordinary Shares acquired by Subscriber after the date hereof (including any Balance Shares) to the extent that voting such shares in favor of the SPAC Shareholder Approval Matters would violate Rule 14e-5 under the Exchange Act, Regulation 14E, or any other applicable tender offer rules promulgated under Section 14(e) of the Exchange Act, or would be inconsistent with the conditions set forth in any applicable no-action or interpretive guidance issued by the staff of the Commission with respect to purchases of securities outside of a tender offer in connection with a business combination transaction. For the avoidance of doubt, such shares shall nonetheless be counted as present for purposes of establishing a quorum at the applicable meeting.
(iii) Purchase of Balance Shares and Terms of Balance Shares.
(A) Subscriber shall purchase his or her Balance Shares at a price no higher than the Redemption Price, from third parties in the open market or through privately negotiated transactions, including from stockholders of the Company that elect to exercise Redemption Rights. In order to effectuate the foregoing, to the extent legally permitted to do so, Subscriber shall purchase his or her Balance Shares at any time and from time to time prior to the BCA Meeting. If Subscriber is unable to purchase his or her Balance Shares at a price no higher than the Redemption Price in the open market or through privately negotiated transactions, then Subscriber shall purchase any remaining Balance Shares through PIPE Common Stock.
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(B) Subscriber acknowledges that it will have Redemption Rights with respect to the Balance Shares purchased hereunder pursuant to the Company’s governing documents, but Subscriber covenants and agrees, for the benefit of the Company, that, neither it nor any of its affiliates shall exercise any Redemption Rights with respect to the Balance Shares.
(C) In furtherance of the covenants in paragraphs 1.1(iii)(A)-(B): (x) Subscriber hereby irrevocably waives, on behalf of itself and its affiliates, the Redemption Rights applicable to the Balance Shares, and irrevocably constitutes and appoints the Company and its designees, with full power of substitution, as its (and its affiliates’) true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead, to revoke any redemption election made in contravention of paragraph 1.1(iii)(B) above with respect to any Balance Shares and to cause the Company’s transfer agent to fail to redeem such Balance Shares in connection with the Business Combination, (y) Subscriber shall deliver such documentation as is requested by the Company to evidence that none of the Non-Redemption Shares have been redeemed, and (z) in the event of a breach of the paragraphs in this Section, Subscriber unconditionally and irrevocably agrees to, or to cause one or more of its affiliates to, subscribe for and purchase from the Company (or from its assignee(s) or designee(s)) prior to the BCA Meeting a number of Class A Ordinary Shares equal to the number of such Non-Redemption Shares, for a per share purchase price not greater than the Redemption Price.
1.2 Subscription of PIPE Common Stock.
(i) Subject to the terms and conditions hereof, Subscriber hereby subscribes for and agrees to purchase from the Company at the Closing, and the Company hereby agrees to issue and sell to Subscriber, at the Closing, upon the payment of the Purchase Price, the PIPE Common Stock on the terms and conditions set forth herein (such subscription and issuance, the “Subscription”). Neither the Company, the Sponsor, nor FORT shall release any Other Subscriber (or any of its affiliates) under any Other Subscription Agreement from any of its material obligations thereunder or any other agreements (including side letters or similar agreements or understandings in respect thereof) with any Other Subscriber (or any of its affiliates) under any Other Subscription Agreement unless it or they offer a similar release to the Subscriber with respect to any similar obligations it has hereunder.
(ii) Each of the Company and FORT represents, warrants and covenants to Subscriber that the Other Subscription Agreements reflect the same Per Share Price, the same Per Share Effective Price, the same ratio with respect to the number of Reallocated Sponsor Shares and Incentive Shares received in connection with Subscriber’s Purchase Price, and other material terms and conditions that are not materially more favorable to such Other Subscriber than the terms of this Subscription Agreement (other than (i) terms particular to the legal or regulatory requirements of such Other Subscriber or its affiliates, including any terms related to such Other Subscriber’s place of organization or headquarters, organizational form or other particular restrictions applicable to such Other Subscriber, or (ii) terms with respect to the confidentiality or disclosure of an Other Subscriber’s identity). In the event that the Company enters into any Other Subscription Agreement or amends any existing Other Subscription Agreement to include terms materially more favorable to any Other Subscriber, the Company agrees to amend and restate this Subscription Agreement to incorporate such more materially favorable terms.
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1.3 Additional Issuance of FORT Common Stock. As additional consideration for the Subscription, immediately prior to the Transaction Closing, FORT shall issue to the Subscribers an aggregate number of newly issued shares of FORT common stock, par value $0.0001 per share (the “Incentive Shares” and together with the Reallocated Sponsor Shares and the PIPE Common Stock, the “Securities”) that will convert into shares of Common Stock upon the Transaction Closing, free and clear of any liens or other encumbrances (other than restrictions imposed by applicable securities laws and the terms of this Subscription Agreement) and in the amounts to each Subscriber as reflected on Schedule A. The shares of Common Stock into which the Incentive Shares shall be converted upon Transaction Closing will be issued in book-entry form and delivered to each Subscriber (or its nominee in accordance with its delivery instructions) promptly following the Transaction Closing. The Company shall use commercially reasonable efforts to register the shares of Common Stock into which the Incentive Shares shall convert on the registration statement on Form S-4 to be filed by the Company and FORT in connection with the Transaction (the “Form S-4”).
1.4 Transfer of Reallocated Sponsor Shares. In consideration for Subscriber’s compliance with the terms of this Subscription Agreement then prior to the Transaction Closing the Sponsor hereby agrees to transfer the Reallocated Sponsor Shares to Subscriber (or its permitted transferees) in the amount reflected on Schedule A through Company’s transfer agent free and clear of any liens or other encumbrances, other than restrictions imposed by applicable securities laws, the Sponsor’s governing documents and any successor or similar agreement entered into in connection with the Business Combination, in each case on terms no less favorable to Subscriber and no more restrictive than those applicable to the Sponsor. The Sponsor and Company covenant and agree to facilitate the transfer of such Reallocated Sponsor Shares to Subscriber (or its permitted transferees) in accordance with the foregoing. The parties to this Subscription Agreement agree to execute, acknowledge and deliver such further instruments and to do all such other acts, as may be necessary or appropriate to carry out the purposes and intent of this Subscription Agreement. The Company shall use commercially reasonable efforts to register the Reallocated Sponsor Shares on the Form S-4.
2. Representations, Warranties and Agreements.
2.1 Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the PIPE Common Stock, FORT to issue the Incentive Shares to Subscriber and Sponsor to transfer the Reallocated Sponsor Shares to Subscriber, Subscriber hereby represents and warrants to the Company, FORT and Sponsor, and agrees with the Company, FORT and Sponsor as follows:
2.1.1 If Subscriber is an entity, Subscriber has been duly formed or incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform Subscriber’s obligations under this Subscription Agreement.
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2.1.2 This Subscription Agreement has been duly authorized, validly executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. Assuming this Subscription Agreement constitutes the valid and binding agreement of the Company, FORT and Sponsor, this Subscription Agreement constitutes a valid and binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
2.1.3 Assuming the accuracy of the Company’s representations and warranties as set forth in Section 2.2 hereof and the Sponsor’s representations and warranties as set forth in Section 2.4, the execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject, which would reasonably be expected to materially and adversely affect the legal authority or ability of Subscriber to comply in all material respects with the terms of this Subscription Agreement (such a material adverse effect, a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or government or governmental, tribunal, judicial, administrative federal, state, local, or foreign or any agency, bureau, board, commission instrumentality or authority thereof, including any state’s attorney general or any court or arbitrator (public or private) (“Authority”), having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect.
2.1.4 The Subscriber is (i) and at the time Subscriber was offered the Securities, was a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule C, (ii) acquiring all of the Securities only for his, her or its own account and not for the account of others, or if the Subscriber is subscribing for the Securities as a fiduciary or agent for one or more investment accounts, the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) acquiring the Securities for investment purposes only and not with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act or the applicable laws of any jurisdiction (and shall provide the requested information set forth on Schedule C or such other similar form acceptable to the Company and such Subscriber). If the Subscriber is an entity, the Subscriber is not an entity formed for the specific purpose of acquiring the Securities.
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2.1.5 Subscriber understands and agrees that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities issued at the Transaction Closing have not been registered under the Securities Act. Subscriber understands and agrees that the Securities may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under Securities Act with respect to the Securities except (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur solely outside the United States within the meaning of Regulation S promulgated under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act that is available, and that any book entries representing the Securities shall contain a restrictive legend to such effect. Subscriber understands and agrees that the Securities will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that the Securities will be subject to the foregoing transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. Subscriber understands that it has been advised to consult legal, tax and accounting counsel prior to making any offer, resale, transfer, pledge or other disposition of any of the Securities.
2.1.6 Subscriber understands and agrees that Subscriber is purchasing and/or receiving the Securities directly from the Company, Sponsor or FORT, as applicable. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company, Sponsor, FORT or any of their respective officers or directors or other Representatives (as defined below), expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement, and Subscriber is not relying on any representations, warranties or covenants other than those expressly set forth in this Subscription Agreement.
2.1.7 Subscriber represents and warrants that (i) it is not a Benefit Plan Subscriber as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Securities will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.
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2.1.8 In making its decision to purchase and/or receive the Securities, Subscriber represents that it has relied solely upon independent investigation made by Subscriber and the representations, warranties, and covenants of Sponsor, the Company and FORT contained in this Subscription Agreement. Subscriber acknowledges and agrees that Subscriber has received and has had an adequate opportunity to review, such financial and other information as Subscriber deems necessary in order to make an investment decision with respect to the Securities and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to Subscriber’s investment in the Securities. Without limiting the generality of the foregoing, Subscriber acknowledges that it has had the opportunity to review the documents provided to Subscriber by the Company, including (collectively, the “Disclosure Documents”): (i) the final prospectus of the Company, dated as of October 31, 2024 and filed with the Securities and Exchange Commission (the “Commission”) (File Nos. 333-281456) (the “Prospectus”), (ii) each SEC Document (as defined below) filed by the Company following the filing of the Prospectus through the date of this Subscription Agreement, (iii) the Transaction Agreement, a copy of which will be filed by the Company with the Commission and (iv) the investor presentation by the Company and FORT (the “Investor Presentation”), a copy of which will be furnished by the Company to the Commission. Subscriber understands the significant extent to which certain of the disclosures contained in items (i) and (ii) above shall not apply following the Transaction Closing. Subscriber represents and agrees that Subscriber and its professional advisor(s), if any, have had the full opportunity to ask the Company’s management questions, receive such answers and obtain such information as Subscriber and its professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Securities. Subscriber has made its own assessment and has satisfied itself concerning the relevant tax and other economic considerations relevant to its investment in the Securities. Subscriber acknowledges that Subscriber shall be responsible for any of Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Subscription Agreement, and that none of the Company, Sponsor, FORT or their respective affiliates or advisors have provided any tax advice or any other representations or guarantees regarding the tax consequences of the transactions contemplated by this Subscription Agreement. Subscriber acknowledges that it has reviewed the documents made available to Subscriber by the Company, Sponsor, and FORT. The Subscriber further acknowledges that the information contained in the Disclosure Documents is subject to change, and that any changes to the information contained in the Disclosure Documents, including any changes based on updated information or changes in terms of the Transaction, shall in no way affect Subscriber’s obligation to purchase the Securities hereunder, except as otherwise provided herein. Subscriber acknowledges that certain information contained in the Investor Presentation was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections.
2.1.9 Subscriber became aware of the Offering solely (a) by means of direct contact from the Company, FORT, or a representative of the Company or FORT, including BTIG, LLC (the “Placement Agent”), or (b) directly from the Company or FORT as a result of a pre-existing, substantial relationship with the Company or FORT or one of their respective affiliates, and the Securities were offered to Subscriber solely by direct contact between Subscriber and either the Company or FORT, or a representative of the Company or FORT, including the Placement Agent. Subscriber did not become aware of the Offering, nor were the Securities offered to Subscriber, by any other means. Subscriber acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising and (ii) to the Company’s knowledge, are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws. Neither Subscriber, nor any of its directors, officers, employees, agents, shareholders or partners, has either directly or indirectly, including through a broker or finder, (i) to its knowledge, engaged in any general solicitation, or (ii) published any advertisement in connection with the Offering.
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2.1.10 Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities, including those set forth in the Disclosure Documents. Subscriber is able to fend for itself in the transactions contemplated herein and has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber understands and acknowledges that it (a) is a sophisticated investor, experienced in investing in equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities and (b) has exercised independent judgment in evaluating its participation in the purchase of the Securities.
2.1.11 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Securities, has analyzed and fully considered the risks of an investment in the Securities and has determined that the Securities are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists.
2.1.12 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment or the accuracy or adequacy of the Disclosure Documents.
2.1.13 Subscriber represents and warrants that Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program; (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List; (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of any country or territory embargoed or subject to substantial trade restrictions by the United States; (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber, directly or indirectly through a third party administrator, maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List, and to otherwise ensure compliance with OFAC-administered sanctions programs. Subscriber further represents and warrants that, to the extent required, it, directly or indirectly through a third-party administrator, maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Securities were legally derived.
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2.1.14 Subject to Section 1.1, on the date the Purchase Price will be required to be funded pursuant to Section 3.1, Subscriber will have sufficient immediately available funds to pay the Purchase Price pursuant to Section 3.1.
2.1.15 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. Subscriber hereby agrees that it shall notify the Company promptly in writing in the event a Disqualification Event becomes applicable to Subscriber or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act.
2.1.16 No broker, finder or other financial consultant has acted on behalf of Subscriber in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the Company, Sponsor, or FORT.
2.1.17 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by such Subscriber with the Commission with respect to the beneficial ownership of the equity securities of the Company prior to the date hereof, Subscriber is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any successor provision) acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).
2.1.18 Unless otherwise disclosed in advance to the Company, Subscriber (a) is not a “foreign person” within the meaning of the Defense Production Act of 1950, as amended, including all implementing regulations thereof (the “DPA”), (b) is not “controlled” by a foreign person within the meaning of the DPA, and (c) does not and will not permit any foreign person affiliate – whether affiliated as a limited partner or otherwise – to obtain through Subscriber any of the following within the meaning of the DPA: (i) access to any “material nonpublic technical information” in the possession of FORT; (ii) membership or observer rights on the FORT Board of Directors (the “FORT Board”) or equivalent governing body of FORT or the right to nominate an individual to a position on the FORT Board or equivalent governing body of FORT; (iii) any “involvement,” other than through the voting of shares, in the “substantive decision making” of FORT regarding (x) the use, development, acquisition, or release of “critical technology”; (y) the use, development, acquisition, safekeeping, or release of “sensitive personal data” of U.S. citizens maintained or collected by FORT; or (z) the management, operation, manufacture or supply of “covered investment critical infrastructure”; or (iv) “control” of FORT.
2.1.19 As of the date hereof, Subscriber does not have, and from the time that such Subscriber first received a term sheet (written or oral) from the Company, FORT, or a representative of the Company or FORT, setting forth the material terms, which terms include definitive pricing terms, of the transactions contemplated hereunder to the date hereof, Subscriber has not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions with respect to the securities of the Company. Notwithstanding the foregoing, (i) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets, the representations set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Subscription Agreement and (ii) in the case of a Subscriber that has implemented internal information barriers pursuant to information controls policy to “wall-off” certain trading, the representations set forth above shall only apply to such walled-off trading personnel.
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2.1.20 Subscriber acknowledges that (i) the Sponsor, Company, FORT and the Placement Agent currently may have, and later may come into possession of, information regarding the Transaction and any of the parties that is not known to Subscriber and that may be material to a decision to enter into this transaction to subscribe for the Securities (“Excluded Information”), (ii) Subscriber has determined to enter into this transaction to subscribe for the Securities notwithstanding its lack of knowledge of the Excluded Information, which Subscriber agrees need not be provided to it, and (iii) none of the Sponsor, Company, FORT, Merger Sub nor the Placement Agent shall have liability to Subscriber, and Subscriber hereby, to the extent permitted by law, waives and releases any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements it may have against any of the Sponsor, Company, FORT, Merger Sub and the Placement Agent with respect to the non-disclosure of the Excluded Information.
2.1.21 Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.
2.2 Company’s Representations, Warranties and Agreements. To induce Subscriber to purchase the PIPE Common Stock, the Company hereby represents and warrants to Subscriber and the Sponsor, and agrees with Subscriber and Sponsor as follows:
2.2.1 The Company has been duly incorporated and is validly existing as an exempted company incorporated and in good standing under the laws of the Cayman Islands, with the requisite power and authority to own, lease and operate its assets and properties and conduct its business as it is now being conducted and to enter into, deliver and perform its obligations under this Subscription Agreement and the Transaction Agreement. As of the Closing Date, following the Domestication, the Company will be duly incorporated, validly existing as a corporation and in good standing under the laws of the State of Delaware with requisite power and authority to own, lease and operate its assets and properties and conduct its business as it is now being conducted.
2.2.2 Upon the consummation of the Domestication, the PIPE Common Stock will have been duly authorized and, when issued and delivered to Subscriber against full payment for the PIPE Common Stock in accordance with the terms of this Subscription Agreement, and registered with the Company’s transfer agent, the PIPE Common Stock will be validly issued, fully paid, non-assessable and free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws or as set forth herein), and will not be issued in violation of or subject to any preemptive right, subscription right or similar rights created under the Company’s organizational documents or any agreement or other instrument to which the Company is a party or by which it is otherwise bound.
2.2.3 Each of this Subscription Agreement and the Transaction Agreement has been duly authorized, and validly executed and delivered by the Company and is a valid and binding obligation of the Company, enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
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2.2.4 The execution, delivery and performance of this Subscription Agreement and the Transaction Agreement by the Company (including compliance by the Company with all of the provisions hereof), the issuance and/or sale of the Securities and the consummation of the certain other transactions contemplated herein and in the Transaction Agreement do not and will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations, stockholders’ equity or financial condition of the Company or have a material adverse effect on the validity of the Securities or the legal authority or ability of the Company to comply in all material respects with the terms of this Subscription Agreement (a “Company Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of the Company; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any Authority having jurisdiction over the Company or any of its properties that would reasonably be expected to have a Company Material Adverse Effect.
2.2.5 Assuming the accuracy of Subscriber’s representations and warranties set forth in this Subscription Agreement, (i) no registration under the Securities Act or any state securities (or Blue Sky) laws is required for the offer and sale of the PIPE Common Stock by the Company to Subscriber and (ii) the PIPE Common Stock are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities (or Blue Sky) laws.
2.2.6 Except as disclosed in the Company’s filings with the Commission, together with any amendments, restatements or supplements thereto (the “SEC Documents”), the Company has made all filings required to be filed by it with the Commission and, as of their respective dates, each of the SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, and the rules and regulations of the Commission promulgated thereunder, and none of the SEC Documents, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that the Company makes no such representation or warranty with respect to any information relating to FORT or any of its affiliates included in any SEC Document or filed as an exhibit thereto, in each case filed prior to the date hereof. Each of the financial statements of the Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Company as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments. As of the date hereof and at the Closing Date, there are no outstanding or unresolved comments in comment letters from the Staff of the Commission with respect to any of the SEC Documents.
2.2.7 The Company is not, and immediately after receipt of payment for the PIPE Common Stock will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
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2.2.8 As of the date of this Subscription Agreement, the Company is in compliance with all applicable law and has not received any written communication from a governmental entity that alleges that the Company is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, be reasonably expected to have a Company Material Adverse Effect.
2.2.9 Except for such matters as have not had and would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date of this Subscription Agreement, there is no (i) action, claim, inquiry, arbitration, investigation, litigation or other proceeding pending, or, to the knowledge of the Company, threatened against the Company or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Company.
2.2.10 Neither the Company nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security under circumstances that would adversely affect reliance by FORT or the Company on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance or sale of the PIPE Common Stock under the Securities Act.
2.2.11 Neither the Company nor any person acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offer or sale of any of the PIPE Common Stock and neither the Company, nor any person acting on its behalf, has offered any of the PIPE Common Stock in a manner involving any public offering under, or in a distribution in violation of, the Securities Act or any state securities (or Blue Sky) laws.
2.2.12 Other than the Transaction Agreement and the Other Subscription Agreements, the Company has not entered into any subscription agreement, side letter, or other agreement or understanding with any Other Subscriber in connection with such Other Subscriber’s direct or indirect investment in the Offering.
2.2.13 The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the PIPE Common Stock pursuant to this Subscription Agreement, other than (i) filings with the Commission, including the filing of the Registration Statement (as defined below) pursuant to Section 6, and the filing of a Notice of Exempt Offering of Securities on Form D with the Commission under Regulation D under the Securities Act, if applicable, (ii) filings required by applicable state securities laws, (iii) those required by the Nasdaq, including with respect to obtaining approval of the Company’s stockholders, (iv) those required to consummate the Transaction as provided under the Transaction Agreement, including those required in connection with the Domestication, and (v) the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect.
2.2.14 As of the date of this Subscription Agreement, the authorized capital stock of the Company consists of (i) 500,000,000 Class A Ordinary Shares; (ii) 50,000,000 Class B ordinary shares; and (iii) 5,000,000 preference shares, par value $0.0001 per share. As of the date hereof: (i) no preference shares are issued and outstanding; (ii) 17,998,375 Class A ordinary shares are issued and outstanding; (iii) 6,118,000 Class B ordinary shares are issued and outstanding; (iv) 324,187 warrants to purchase Class A Ordinary Shares (the “Private Placement Warrants”) are outstanding; and (v) 8,625,000 warrants to purchase Class A Ordinary Shares (the “Public Warrants”) are outstanding. All (x) issued and outstanding Class A Ordinary Shares and Class B ordinary shares have been duly authorized and validly issued, are fully paid and are non-assessable, were issued in compliance in all material respects with applicable law, were not issued in breach or violation of any purchase option, right of first refusal, preemptive right, subscription right (or any similar right) or contract to which the Company is a party and (y) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid, were issued in compliance in all material respects with applicable law, were not issued in breach or violation of any purchase option, right of first refusal, preemptive right, subscription right (or any similar right) or contract. Except as set forth above and pursuant to the Other Subscription Agreements and the Transaction Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company any Class A Ordinary Shares, or Class B ordinary shares, or any other equity interests in the Company, or securities convertible into or exchangeable or exercisable for such equity interests. As of the date hereof, other than Merger Sub, the Company has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting of any securities of the Company, other than (A) as set forth in the SEC Documents and (B) as contemplated by the Transaction Agreement or the Ancillary Documents.
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2.2.15 Neither the Company nor any of its subsidiaries, directors, officers, employees, or, to the Company’s knowledge, any of its agents or representatives acting on its behalf in connection with this Subscription Agreement or the Transaction Agreement, is: (a) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by OFAC or on the OFAC List, or a person or entity prohibited by any OFAC sanctions program, (b) any person operating, organized or located in a country or territory which is itself the subject or target of comprehensive sanctions (at the time of this Subscription Agreement, Cuba, Iran, North Korea, and the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine) or (c) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Company has not heretofore engaged in any transaction to lend, contribute or otherwise make available funds or the funds of any joint venture partner or other person or entity towards any sales or operations in Cuba, Iran, North Korea, or the Crimea, Donetsk People’s Republic, or Luhansk People’s Republic regions of Ukraine or any other jurisdiction subject to comprehensive sanctions by OFAC or for the purpose of financing the activities of any person or entity currently subject to any U.S. sanctions administered by OFAC.
2.2.16 As of the date of hereof, the Class A Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and listed for trading on the Nasdaq. Upon consummation of the Transaction, the Common Stock will be registered pursuant to Section 12(b) of the Exchange Act and listed for trading on the Nasdaq. As of the date hereof, the Company is in compliance with the rules of the Nasdaq and there is no action pending or, to the knowledge of the Company, threatened against Company by the Nasdaq or the Commission with respect to any intention by such entity to deregister the Class A Ordinary Shares or terminate the listing of the Class A Ordinary Shares. As of the date hereof, the Company has taken no action that is designed to terminate the registration of the Class A Ordinary Shares under the Exchange Act except as contemplated by the Transaction Agreement. As of the date hereof, the Company has not received any notice from the Nasdaq or the Commission regarding the revocation of such listing or otherwise regarding the delisting or suspension of the Class A Ordinary Shares from the Nasdaq or the Commission and, as of the date hereof, the Class A Ordinary Shares are duly authorized for listing and eligible for continued trading on Nasdaq.
2.3 FORT’s Representations, Warranties and Agreements. To induce Subscriber to purchase the PIPE Common Stock, FORT hereby represents and warrants to Subscriber, and agrees with Subscriber as follows:
2.3.1 FORT is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, with the requisite corporate power and authority (i) to own, lease and operate its properties and conduct its business as presently conducted and (ii) to enter into, deliver and perform its obligations under this Subscription Agreement and the Transaction Agreement, except, in the case of clause (i) where the failure to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a FORT Material Adverse Effect (as defined below).
2.3.2 The Incentive Shares have been duly authorized and, when issued and delivered to Subscriber against full payment for the PIPE Common Stock in accordance with the terms of this Subscription Agreement, and registered with FORT’s transfer agent, the Incentive Shares will be validly issued, fully paid, non-assessable and free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws or as set forth herein), and will not be issued in violation of or subject to any preemptive right, subscription right or similar rights created under FORT’s organizational documents or any agreement or other instrument to which FORT is a party or by which it is otherwise bound.
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2.3.3 Each of this Subscription Agreement and the Transaction Agreement has been duly authorized, executed and delivered by FORT and is a valid and binding obligation of FORT, enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
2.3.4 The execution, delivery and performance of this Subscription Agreement and the Transaction Agreement (including compliance by FORT with all of the provisions hereof and thereof), the issuance and sale of the Securities, to the extent issued by FORT prior to the Closing, and the consummation of the certain other transactions contemplated herein and in the Transaction Agreement will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of FORT pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which FORT is a party or by which FORT is bound or to which any of the property or assets of FORT is subject, which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations, stockholders’ equity or financial condition of FORT or have a material adverse effect on the validity of the Securities or the legal authority or ability of FORT to comply in all material respects with the terms of this Subscription Agreement or the Transaction Agreement (a “FORT Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of FORT; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any Authority having jurisdiction over FORT or any of its properties that would reasonably be expected to have, individually or in the aggregate, a FORT Material Adverse Effect.
2.3.5 Assuming the accuracy of Subscriber’s representations and warranties set forth in this Subscription Agreement, (i) no registration under the Securities Act or any state securities (or Blue Sky) laws is required for the offer and sale of the Incentive Shares to Subscriber and (ii) the Incentive Shares are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities (or Blue Sky) laws.
2.3.6 Neither FORT, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security, under circumstances that would adversely affect reliance by the Sponsor, FORT or the Company on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance, transfer, or sale of the Securities, as applicable, under the Securities Act.
2.3.7 Neither FORT nor any person acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offer or sale of any of the Securities and neither FORT, nor any person acting on its behalf has offered any of the Securities in a manner involving any public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
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2.3.8 Other than the Transaction Agreement and the Other Subscription Agreements, FORT has not entered into any subscription agreement, side letter, or other agreement or understanding with any Other Subscriber in the Transaction in connection with such Other Subscriber’s direct or indirect investment in the Offering.
2.3.9 FORT is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the issuance of the Incentive Shares pursuant to this Subscription Agreement, other than (i) filings with the Commission, including the filing of the Registration Statement (as defined below) pursuant to Section 6, and the filing of a Notice of Exempt Offering of Securities on Form D with the Commission under Regulation D under the Securities Act, if applicable, (ii) filings required by applicable state securities laws, (iii) those required to consummate the Transaction as provided under the Transaction Agreement, and (iv) the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, a FORT Material Adverse Effect.
2.3.10 Neither FORT nor any of its subsidiaries directors or officers or, to FORT’s knowledge, any of its agents or representatives acting on its behalf in connection with this Subscription Agreement or the Transaction Agreement, is: (a) a person or entity named on the List of Specially Designated Nationals and Blocked Persons (the “SDN List”) administered by OFAC, or 50 percent or more owned by one or more persons or entities named on the SDN List (collectively, “Restricted Persons”) or (b) a person legally organized or ordinarily resident in a country or territory which is itself the subject or target of a comprehensive embargo (at the time of this Subscription Agreement, Cuba, Iran, North Korea, and the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine). FORT has not heretofore engaged in any transaction to lend, contribute or otherwise make available funds or the funds of any joint venture partner or other person or entity towards any sales or operations in Cuba, Iran, North Korea, or the Crimea, Donetsk People’s Republic, or Luhansk People’s Republic regions of Ukraine or for the purpose of financing the activities of any Restricted Person.
2.4 Sponsor’s Representation and Warranties. To induce Subscriber to purchase the Securities, the Sponsor hereby represents and warrants to Subscriber and agrees with the Subscriber as follows:
2.4.1 Sponsor is a Delaware limited liability company formed, validly existing and in good standing under the laws of the State of Delaware, with the requisite limited liability company power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
2.4.2 This Subscription Agreement has been duly authorized, executed and delivered by the Sponsor and is a valid and binding obligation of the Sponsor, enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
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2.4.3 The execution, delivery and performance of this Subscription Agreement (including compliance by the Sponsor with all of the provisions hereof) and the consummation by the Sponsor of the transactions contemplated herein will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Sponsor pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Sponsor is a party or by which the Sponsor is bound or to which any of the property or assets of the Sponsor is subject, which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, operations or financial condition of the Sponsor or have a material adverse effect on the validity of the Securities, as applicable, or the legal authority or ability of the Sponsor to comply in all material respects with the terms of this Subscription Agreement (a “Sponsor Material Adverse Effect”); (ii) result in any violation of the provisions of the organizational documents of the Sponsor; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any Authority having jurisdiction over the Sponsor or any of its properties that would reasonably be expected to have, individually or in the aggregate, a Sponsor Material Adverse Effect.
2.4.4 Neither the Sponsor, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security, under circumstances that would adversely affect reliance by the Sponsor, FORT or the Company on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance or sale of the Securities under the Securities Act.
2.4.5 Neither the Sponsor nor any person acting on its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offer or sale of any of the Securities, as applicable, and neither the Sponsor, nor any person acting on its behalf has offered any of the Securities, as applicable, in a manner involving any public offering under, or in a distribution in violation of, the Securities Act or any state securities (or Blue Sky) laws.
2.4.6 Other than the Transaction Agreement and the Other Subscription Agreements, the Sponsor has not entered into any subscription agreement, side letter, or other agreement or understanding with any Other Subscriber in the Transaction in connection with such Other Subscriber’s direct or indirect investment in the Offering.
2.4.7 Neither the Sponsor nor any of its subsidiaries, directors, officers, employees, or, to the Sponsor’s knowledge, any of its agents or representatives acting on its behalf in connection with this Subscription Agreement is: (a) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by OFAC or on the OFAC List, or a person or entity prohibited by any OFAC sanctions program, (b) any person operating, organized or located in a country or territory which is itself the subject or target of comprehensive sanctions (at the time of this Subscription Agreement, Cuba, Iran, North Korea, and the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine) or (c) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Sponsor has not heretofore engaged in any transaction to lend, contribute or otherwise make available funds or the funds of any joint venture partner or other person or entity towards any sales or operations in Cuba, Iran, North Korea, or the Crimea, Donetsk People’s Republic, or Luhansk People’s Republic regions of Ukraine or any other jurisdiction subject to comprehensive sanctions by OFAC or for the purpose of financing the activities of any person or entity currently subject to any U.S. sanctions administered by OFAC.
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3. Settlement Date and Delivery.
3.1 Closing. The closing of the Subscription contemplated hereby (the “Closing”) is contingent upon the substantially concurrent consummation of the Transaction, as provided for by the Transaction Agreement. The Closing shall occur on the closing date of, and immediately prior to, or simultaneously with, the consummation of the Transaction. Upon written notice from (or on behalf of) the Company (which may be via email) to Subscriber (the “Notice”), which Notice shall contain the Company’s wire instructions for an escrow account (the “Escrow Account”) established by the Company with a third-party escrow agent (the “Escrow Agent”) to be identified in the Notice, that the Company reasonably expects the closing of the Transaction to take place on a date that is not less than five (5) business days from the date of the Notice, Subscriber shall deliver to the Escrow Account, not less than two (2) business days (unless otherwise agreed to in writing by the Company) prior to the scheduled closing date specified in the Notice (the “Scheduled Closing Date”), the Purchase Price for the Securities by wire transfer of United States dollars in immediately available funds to the account specified by the Company in the Notice. The wire transfer shall identify Subscriber, and unless otherwise agreed by the Company and the Escrow Agent, the funds shall be wired from an account in Subscriber’s name. Upon the Closing, the Company shall provide instructions to the Escrow Agent to release the funds in the Escrow Account to the Company against the issuance of and delivery by the Company promptly after the Closing to Subscriber of the Securities in book-entry form, free and clear of any liens or other restrictions (other than those arising under state or federal securities laws or those incurred by Subscriber or arising under this Subscription Agreement). Not later than one (1) business day after the Closing, the Company shall deliver to Subscriber the Securities in book entry form with restrictive legends, in the name of Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable. In the event (i) this Subscription Agreement is terminated prior to the Closing or (ii) the Closing does not occur within five (5) days of the Scheduled Closing Date, and in either case, any funds have already been sent by Subscriber to the Escrow Account, the Company shall promptly (but not later than two (2) business days thereafter) instruct the Escrow Agent to promptly return the Purchase Price to Subscriber by wire transfer of U.S. dollars in immediately available funds to the account specified by Subscriber, and any book-entries for the Securities shall be deemed repurchased and cancelled. Unless this Subscription Agreement is terminated pursuant to Section 5 below, (i) the failure of the Closing to occur on or after the Scheduled Closing Date shall not terminate this Subscription Agreement or otherwise relieve any party of any of its obligations hereunder and (ii) Subscriber shall remain obligated (aa) to redeliver funds to the Company following the Company’s delivery to Subscriber of a new Notice and (bb) to consummate the Closing upon satisfaction of the conditions set forth in this Subscription Agreement. For purposes of this Subscription Agreement, “business day” means any day that, in New York, New York, is neither a legal holiday nor a day on which commercial banking institutions are generally authorized or required by law or regulation to close (excluding as a result of “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems, including for wire transfers, of commercial banking institutions in New York, New York are generally open for use by customers on such day).
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3.2 Conditions to Closing.
3.2.1 The Closing shall be subject to the satisfaction or valid waiver by the Company, Subscriber, and Sponsor, of the conditions that, on the Closing Date:
(i) No suspension of the qualification of the Securities for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have occurred and be continuing.
(ii) No Authority shall have enacted, issued, promulgated, enforced or entered any law, rule, regulation, judgment, decree, executive order or award (whether temporary preliminary or permanent) which is then in effect and has the effect of making the transactions contemplated hereby or by the Transaction Agreement illegal or otherwise prohibiting or enjoining the consummation of the transactions contemplated hereby or by the Transaction Agreement.
(iii) All material conditions precedent to the Transaction Closing set forth in the Transaction Agreement shall have been satisfied (as determined in good faith by the parties to the Transaction Agreement) or waived by the parties thereto in accordance with the requirements of the Transaction Agreement (other than those conditions which, by their nature, are to be satisfied at the Transaction Closing).
(iv) No amendment, modification or waiver of the Transaction Agreement (as the same exists on the date hereof as provided to the Subscriber) or any terms thereof shall have occurred that would reasonably be expected to materially and adversely affect the economic benefits that the Subscriber would reasonably expect to receive under this Subscription Agreement without having received the Subscriber’s prior written consent.
(v) No amendment, modification or waiver of one or more of the Other Subscription Agreements (including via a side letter or other agreement) shall have occurred that materially benefits one or more Other Subscribers unless the Subscriber has been offered the same benefits.
3.2.2 The obligations of Subscriber to consummate the Closing shall also be subject to the satisfaction or valid waiver by the Subscriber of the conditions that, on the Closing Date:
(i) The representations and warranties made by the Company, FORT, and Sponsor in Sections 2.2, 2.3, and 2.4 respectively, hereof shall be true and correct in all material respects when made (other than representations and warranties that are qualified as to materiality or a Company Material Adverse Effect, FORT Material Adverse Effect, or Sponsor Material Adverse Effect which representations and warranties shall be true and correct in all respects), and shall be true and correct in all material respects on and as of the Closing Date (unless they specifically speak as of another date in which case they shall be true and correct in all material respects as of such date) (other than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, FORT Material Adverse Effect, or Sponsor Material Adverse Effect, which representations and warranties shall be true and correct in all respects with the same force and effect as if they had been made on and as of said date, but in each case without giving effect to consummation of the Subscription).
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(ii) The Company, FORT, and Sponsor shall have performed, satisfied and complied in all material respects with all agreements, conditions and covenants required by this Subscription Agreement to be performed by the Company, FORT, or Sponsor at or prior to the Closing, except where the failure of such performance or compliance would not reasonably be expected to prevent, materially delay, or materially impair the ability of the Company, FORT, or Sponsor to consummate the Closing.
(iii) The Company shall have filed with Nasdaq (or, if applicable, NYSE) an application for the listing of the Securities and Nasdaq (or, if applicable, NYSE) shall have raised no objection with respect thereto, subject to official notice of issuance.
(iv) After giving effect to the issuance of the Securities pursuant to this Subscription Agreement and the issuance of the other shares of Common Stock pursuant to the Other Subscription Agreements on the Closing Date, and the consummation of the Transaction and steps contemplated by the Transaction Agreement, no fewer than 13,130,250 shares of Common Stock shall have been issued and outstanding, and all such issued and outstanding shares shall have been issued prior to or substantially contemporaneously with the issuance of the Securities to Subscriber.
(v) There shall not have occurred any Company Material Adverse Effect, FORT Material Adverse Effect, or Sponsor Material Adverse Effect.
(vi) All consents, waivers, authorizations or orders of, any notice required to be made to, and any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization (including the Nasdaq any stockholder approval required by applicable rules and regulations of the Nasdaq) or other person in connection with the execution, delivery and performance of this Subscription Agreement (including, without limitation, the issuance of the Securities) required to be made in connection with the issuance and sale of the Securities shall have been obtained or made, except where the failure to so obtain or make would not prevent the Company, FORT, or Sponsor from consummating the transactions contemplated hereby, including the issuance and sale of the Securities to the Subscriber.
3.2.3 The obligations of the Company, FORT, and Sponsor to consummate the Closing shall also be subject to the satisfaction or valid waiver by each of the Company, FORT, and Sponsor of the conditions that, on the Closing Date:
(i) Subscriber shall have performed, satisfied and complied in all material respects with all agreements, conditions and covenants required by this Subscription Agreement to be performed by Subscriber at or prior to the Closing.
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(ii) All representations and warranties of Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true in all respects) at and as of the Closing Date (except for representations and warranties made as of a specific date, which shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true in all respects) as of such date), and consummation of the Closing, shall constitute a reaffirmation by the Subscriber of each of the representations, warranties and agreements of the Subscriber contained in this Subscription Agreement as of the Closing Date.
4. Transfer Restrictions.
4.1 After the Closing, the Securities may only be resold, transferred, pledged or otherwise disposed of in compliance with state and federal securities laws and pursuant to an effective registration statement, Rule 144 under the Securities Act (“Rule 144”) or pursuant to another applicable exemption from the registration requirements of the Securities Act, to the Company or to an affiliate of Subscriber. As a condition of transfer (other than pursuant to an effective registration statement pursuant to Rule 144 or pursuant to another applicable exemption from the registration requirements of the Securities Act), any such transferee shall agree in writing to be bound by the terms of this Subscription Agreement and shall have the rights and obligations of Subscriber under this Subscription Agreement.
4.2 The Company, FORT, and Sponsor acknowledge that the Securities may be pledged by Subscriber in connection with a bona fide margin agreement, provided that such pledge shall be pursuant to an available exemption from the registration requirements of the Securities Act or pursuant to, and in accordance with, a registration statement that is effective under the Securities Act at the time of such pledge, and Subscriber effecting a pledge of the Securities shall not be required to provide the Company, FORT, or Sponsor with any notice thereof; provided, however, that neither the Company nor its counsel shall be required to take any action (or refrain from taking any action) in connection with any such pledge, other than providing any such lender of such margin agreement with an acknowledgment that the Securities are not subject to any contractual lock up or prohibition on pledging, the form of such acknowledgment to be subject to review and comment by the Company in all respects; provided further that the Subscriber and its pledgee shall be required to comply with other provisions of this Section 4 in order to effect a sale, transfer or assignment of Securities to a pledgee.
4.3 Subject to applicable requirements of the Securities Act and the interpretations of the Commission thereunder and any requirements of the Company’s transfer agent, the Company shall use commercially reasonable efforts to promptly (and within three (3) business days of such request), upon Subscriber’s request, ensure that instruments, whether certificated or uncertificated, evidencing the Securities shall not contain any legend (including the legend set forth in Section 4.4 below) (i) following any sale of such Securities pursuant to Rule 144, (ii) if such Securities are eligible for sale under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 (including under Rule 144(i)) and without volume or manner-of-sale restrictions, and in each case, Subscriber provides the Company with an undertaking to effect any sales or other transfers in accordance with the Securities Act, or (iii) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission).
4.4 Subscriber agrees to the imprinting, so long as is required by this Section 4, of a legend on any of the Securities in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
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4.5 Subscriber hereby acknowledges and agrees that it will not, and will cause each person acting at Subscriber’s direction or pursuant to any understanding with Subscriber to not, directly or indirectly offer, sell, pledge, contract to sell or sell any option to purchase, or engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act, in each case that result in Subscriber having a net short cash position in respect of the Securities until the earlier of (x) the public announcement of the signing of this Subscription Agreement and (y) the termination of this Subscription Agreement in accordance with its terms. For the avoidance of doubt, nothing contained herein shall prohibit Subscriber from (i) any purchase of securities by Subscriber, its controlled affiliates or any person or entity acting on behalf of Subscriber or any of its controlled affiliates in an open market transaction after the execution of this Subscription Agreement, or (ii) any sale (including the exercise of any redemption right) of securities of the Company (A) held by Subscriber, its controlled affiliates or any person or entity acting on behalf of Subscriber or any of its controlled affiliates prior to the execution of this Subscription Agreement or (B) purchased by Subscriber, its controlled affiliates or any person or entity acting on behalf of Subscriber or any of its controlled affiliates in an open market transaction after the execution of this Subscription Agreement. Notwithstanding the foregoing, (i) nothing herein shall prohibit other entities under common management with Subscriber that have no knowledge of this Subscription Agreement or of Subscriber’s participation in the Transaction (including Subscriber’s controlled affiliates and/or affiliates) from entering into any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act; (ii) in the case of a Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Subscriber’s assets and the portfolio managers have no knowledge of the investment decisions made by the portfolio managers managing other portions of such Subscriber’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Subscription Agreement; and (iii) in the case of a Subscriber that has implemented internal information barriers pursuant to information controls policy to “wall-off” certain trading personnel, the representations set forth above shall only apply to such walled-off trading personnel.
4.6 The Company will use its commercially reasonable efforts to make all Common Stock issued in respect of the Securities eligible on the Direct Registration System of the Depository Trust Company so that Subscriber can, subject to Section 4.1 and Section 4.2, move shares to respective prime broker accounts and sell without restriction.
5. Termination. Except for the provisions of Sections 5, 7, 8 and 9 and the provisions of this Subscription Agreement providing for the return of funds previously delivered in the event the Closing does not occur, all of which shall survive any termination hereunder and continue indefinitely, this Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earliest to occur of (i) such date and time as the Transaction Agreement is terminated in accordance with its terms, (ii) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement, or (iii) at the election of either Subscriber or the Company, if the Closing shall not have occurred on or before the Outside Date (as defined in, and including any extension made in compliance with the terms of, the Transaction Agreement); provided, that, the Outside Date shall in no event be more than 18 months from the date of the Subscription Agreement; provided further, that, subject to the limitations set forth in Section 8, nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such breach. The Company shall notify Subscriber of the termination of the Transaction Agreement promptly after the termination of such agreement. Upon the termination hereof in accordance with this Section 5, any monies paid by Subscriber to the Company in connection herewith shall promptly be returned in full to Subscriber by wire transfer of U.S. dollars in immediately available funds to the account specified by Subscriber.
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6. Registration Rights.
6.1 The Company agrees that within thirty (30) days after the Closing Date, the Company will file with the Commission (at the Company’s sole cost and expense) a registration statement to register under and in accordance with the provisions of the Securities Act, the resale of all of the Registrable Securities (as defined below) on Form S-1 (which shall be filed pursuant to Rule 415 under the Securities Act) as a secondary-only registration statement (the “Registration Statement”). The Company further agrees that it shall not file any registration statement on Form S-1 registering the resale of any of its securities other than the Registration Statement after the Closing Date until the Registration Statement has been declared effective by the Commission; provided, that, the Company shall be permitted to include in the Registration Statement the securities registrable pursuant to (i) that certain Registration Rights Agreement, dated as of October 31, 2024 (as may be amended, modified or supplemented from time to time, the “IPO Registration Rights Agreement”), by and among the Company, Sponsor, and certain security holders party thereto, and (ii) that certain Registration Rights Agreement, to be entered into in or around the Closing Date (the “FORT Registration Rights Agreement”), by and among the Company, FORT, certain FORT stockholders, pursuant to which such FORT stockholders will be granted certain registration rights with respect to their shares of Common Stock received as consideration pursuant to the Transaction Agreement. The Company will use its commercially reasonable efforts to provide a draft of the Registration Statement to Subscriber for review at least two (2) business days in advance of filing the Registration Statement and the Subscriber shall provide any comments on the Registration Statement to the Company no later than the day which is one (1) business day preceding the filing date. The Company shall advise Subscriber promptly, and in any event within twenty-four (24) hours, after the Registration Statement is declared effective by the Commission or is supplemented and of any request by the Commission for any amendment or supplement to the Registration Statement or any prospectus or for additional information and shall provide the Subscriber with copies of any related prospectus to be used in connection with the sale or other disposition of the securities covered thereby. The Company shall use its commercially reasonable efforts to have the Registration Statement declared effective by the Commission as soon as practicable after the filing thereof, but no later than the earlier of (i) the 90th calendar day (or 150th calendar day if the Commission notifies the Company that it will “review” the Registration Statement) following the Closing and (ii) the second (2nd) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Date”); provided, however, that the Company’s obligations to include the Registrable Securities of Subscriber in the Registration Statement are contingent upon Subscriber furnishing in writing to the Company such information regarding Subscriber, the securities of the Company held by Subscriber and the intended method of disposition of the Registrable Securities as shall be reasonably requested by the Company to effect the registration of the Registrable Securities, and Subscriber shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling shareholder in similar situations. Notwithstanding the foregoing, if the Commission prevents the Company from including any or all of the Common Stock proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 under the Securities Act for the resale of the Registrable Securities by the Subscribers or otherwise, the Company shall use its best efforts to ensure that the Commission determines that the offering contemplated by the Registration Statement is a bona fide secondary offering and not an offering “by or on behalf of the issuer” as defined in Rule 415 of the Securities Act. If the Company is unsuccessful in the efforts described in the preceding sentence then the Company shall cause such Registration Statement to register for resale: (a) first, such number of Registrable Securities which is equal to the maximum number of Common Stock as is permitted by the Commission (the “Maximum Number of Securities”) and (b) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (a), the Common Stock that the Company is obligated to register under the IPO Registration Rights Agreement and the FORT Registration Rights Agreement. In the event that the Registrable Securities exceeds the Maximum Number of Securities, the number of Registrable Securities to be registered for each selling shareholder named in the Registration Statement shall be reduced pro rata among all such selling shareholders and as promptly as practicable after being permitted to register additional Securities under Rule 415 under the Securities Act, the Company shall amend the Registration Statement or file a new Registration Statement to register such additional Registrable Securities that were not included in the initial Registration Statement and cause such amendment or Registration Statement to become effective as promptly as practicable. In no event shall the Subscriber be identified as a statutory underwriter in the Registration Statement unless requested by the Commission; provided, that if the Commission requests that the Subscriber be identified as a statutory underwriter in the Registration Statement, the Subscriber will have the option, in its sole and absolute discretion, to either (i) have an opportunity to withdraw from the Registration Statement, in which case the Company’s obligation to register the Subscriber’s Registrable Securities will be deemed satisfied, or (ii) be included as such in the Registration Statement. The Company will use its commercially reasonable efforts to maintain the continuous effectiveness of the Registration Statement until the earliest of (x) such time as when all of Subscriber’s securities included therein cease to be Registrable Securities, (y) such time as when all of Subscriber’s Registrable Securities included in such Registration Statement have actually been sold and (z) three years from the Closing Date. The Company will use its commercially reasonable efforts to cause the removal of all restrictive legends from any Registrable Securities being sold under the Registration Statement at the time of sale of such Registrable Securities upon the receipt from the Subscriber of such supporting documentation, if any, as requested by the Company. The Company will use commercially reasonable efforts to file all reports, and provide all customary and reasonable cooperation, reasonably necessary to enable Subscriber to resell Registrable Securities pursuant to the Registration Statement and Rule 144, qualify the Registrable Securities for listing on the applicable stock exchange and update or amend the Registration Statement as necessary to include Registrable Securities. “Registrable Securities” shall mean, as of any date of determination, the PIPE Common Stock, the Incentive Shares, solely to the extent that such Incentive Shares are unable to be included on the Form S-4, the Reallocated Sponsor Shares, solely to the extent that such Reallocated Sponsor Shares are unable to be included on the Form S-4, and any other equity security issued or issuable with respect to the foregoing Securities by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event, provided, however, that such securities shall cease to be Registrable Securities at the earliest of (A) three (3) years after the Closing Date, (B) the date all of such securities held by Subscriber may be sold by Subscriber without volume or manner of sale limitations pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), (C) the date on which such securities have actually been sold by Subscriber, or (D) when such securities shall have ceased to be outstanding. Notwithstanding the foregoing, Subscriber shall not be required to sign any form of lock-up agreement in connection with the Registration Statement. Subscriber may deliver written notice (an “Opt-Out Notice”) to the Company requesting that Subscriber not receive notices from the Company otherwise required by this Section 6.1; provided, however, that Subscriber may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from Subscriber (unless subsequently revoked), (i) the Company shall not deliver any such notices to Subscriber and Subscriber shall no longer be entitled to the rights associated with any such notice and (ii) Subscriber will notify the Company in writing at least three (3) business days in advance of each intended use of an effective Registration Statement, and if a notice of a Suspension Event (as defined below) was previously delivered (or would have been delivered but for the provisions of this Section 6.1) and the related suspension period remains in effect, the Company will so notify Subscriber, within two (2) business days after Subscriber’s notification to the Company, by delivering to Subscriber a copy of such previous notice of Suspension Event, and thereafter will provide Subscriber with the related notice of the conclusion of such Suspension Event promptly following its availability.
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6.2 At its expense the Company shall:
6.2.1 except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws that the Company determines to obtain in connection with such registration, continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until all Securities acquired by Subscriber hereunder cease to be Registrable Securities or such shorter period upon which Subscriber has notified the Company that such Registrable Securities have actually been sold, or otherwise when such Registration Statement is no longer required to be effective under this Section 6;
6.2.2 subject to an Opt-Out Notice, advise Subscriber within one (1) business day: (A) of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose; (B) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and (C) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus included therein so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading; provided, however, that the Company shall not be required to disclose the details of such event. Notwithstanding anything to the contrary set forth herein, the Company shall not, when so advising Subscriber of such events, provide Subscriber with any material, non-public information regarding the Company and any documents provided to Subscriber shall be redacted of any material, non-public information regarding the Company unless such Subscriber consents in writing to receive such information and agrees to hold it in confidence;
6.2.3 use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as promptly as reasonably practicable;
6.2.4 upon the occurrence of any event contemplated in Section 6.2.2, except for such times as the Company is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Company shall use its commercially reasonable efforts to as promptly as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
6.2.5 use its commercially reasonable efforts to cause all Registrable Securities to be listed on each securities exchange or market, if any, on which the Common Stock issued by the Company have been listed; and
6.2.6 use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Registrable Securities contemplated hereby.
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6.3 Notwithstanding anything to the contrary in this Subscription Agreement, the Company shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require Subscriber not to sell under the Registration Statement or to suspend the effectiveness thereof, (i) if any information (e.g., compensation data) is not readily available and the non-disclosure of which in the Registration Statement would be expected, in the reasonable determination of the Company’s board of directors, upon the advice of external legal counsel, to cause the Registration Statement to fail to comply with applicable disclosure requirements, (ii) at any time the Company is required to file a post-effective amendment to the Registration Statement and the Commission has not declared such amendment effective or (iii) if the negotiation or consummation of a transaction by the Company or its subsidiaries is pending or an event has occurred, which negotiation, consummation or event, the Company’s board of directors reasonably believes, upon the advice of external legal counsel, would require additional disclosure by the Company in the Registration Statement of material non-public information that the Company has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable determination of the Company’s board of directors, upon the advice of external legal counsel, to cause the Registration Statement to fail to comply with applicable disclosure requirements (each such circumstance, a “Suspension Event”); provided, however, the Company shall not so delay filing or so suspend the use of the Registration Statement on more than two (2) occasions for a period of not more than sixty (60) consecutive days in any three hundred sixty (360) day period. Upon receipt of any written notice from the Company of the happening of any Suspension Event during the period that the Registration Statement is effective, which notice shall be given no later than three (3) business days from the date of such Suspension Event, or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made (in the case of the prospectus) not misleading, Subscriber agrees that (i) it will immediately discontinue offers and sales of the Registrable Securities under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until such Subscriber receives copies of a supplemental or amended prospectus (which the Company agrees to promptly prepare after the completion of the Suspension Event) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Company that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by the Company unless otherwise required by law or subpoena. If so directed by the Company, Subscriber will deliver to the Company or, in such Subscriber’s sole discretion destroy, all copies of the prospectus covering the Registrable Securities in such Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Registrable Securities shall not apply (i) to the extent such Subscriber is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.
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6.4 From and after the Closing, the Company shall indemnify, defend and hold harmless Subscriber (to the extent a seller under the Registration Statement), and any of its officers, directors, agents, partners, members, stockholders, affiliates, managers, investment advisers and employees, and each person who controls Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (collectively, the “Indemnified Persons”), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including reasonable and documented out-of-pocket external attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) and expenses (collectively, “Losses”), as incurred, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, except insofar as and to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information regarding Subscriber furnished in writing to the Company by such Subscriber expressly for use therein in connection with the registration of the Common Stock; provided, however, that the indemnification contained in this Section 6 shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of the Company, nor shall the Company be liable for any Losses to the extent they arise out of or are based upon a violation which occurs (A) in reliance upon and in conformity with written information furnished by such Subscriber expressly for use in the Registration Statement, (B) in connection with any failure of such person to deliver or cause to be delivered a prospectus made available by the Company in a timely manner, (C) as a result of offers or sales effected by or on behalf of any person by means of a “free writing prospectus” (as defined in Rule 405 under the Securities Act) that was not authorized in writing by the Company, or (D) in connection with any offers or sales effected by or on behalf of such Subscriber in violation of Section 6.3 hereof. Subscriber shall notify the Company promptly of the institution of any proceeding arising from or in connection with the transactions contemplated by this Section 6 of which Subscriber becomes aware, provided that a failure by Subscriber to provide such notice shall not impact Subscriber’s right to be indemnified hereunder unless the Company is actually prejudiced thereby. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Securities by Subscriber.
6.5 To the extent the Subscriber is identified as a selling stockholder in the Registration Statement or any other registration statement which covers the Registrable Securities purchased by such Subscriber, from and after the Closing, Subscriber shall (severally and not jointly with any Other Subscriber) indemnify and hold harmless the Company, its directors, officers, agents and employees, and each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding Subscriber furnished in writing to the Company by Subscriber expressly for use therein in connection with the registration of the Common Stock; provided, however, that the indemnification contained in this Section 6 shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of Subscriber. In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Registrable Securities giving rise to such indemnification obligation. The Company shall notify Subscriber promptly of the institution of any proceeding arising from or in connection with the transactions contemplated by this Section 6 of which the Company becomes aware, provided that a failure by the Company to provide such notice shall not impact the Company’s right to be indemnified hereunder unless Subscriber is actually prejudiced thereby. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Securities by Subscriber.
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6.6 If the indemnification provided under this Section 6 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in this Section 6, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 6 from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying party’s obligation to make a contribution pursuant to this Section 6.6 shall be individual, not joint and several, and in no event shall the liability of Subscriber hereunder be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Registrable Securities giving rise to such indemnification obligation.
6.7 Any party entitled to indemnification under this Section 6 shall permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. The indemnifying party shall not enter into any settlement without the indemnified party’s prior written consent (not to be unreasonably withheld, conditioned or delayed), unless such settlement includes an unconditional release of the indemnified party from all liability arising out of such claim. The indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the reasonable and documented fees and expenses of such counsel shall be at the expense of such indemnified party unless (x) the indemnifying party has agreed to pay such fees and expenses, (y) the indemnifying party has failed promptly to assume the defense of such action and employ counsel reasonably satisfactory to the indemnified party, or (z) the named parties to any such action include both the indemnifying party and the indemnified party, and the indemnified party has been advised by counsel that there may be one or more conflicting defenses available to it that would make it inappropriate for the same counsel to represent both parties.
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7. Miscellaneous.
7.1 Further Assurances. At the Closing, the parties hereto shall use commercially reasonable efforts to execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the Subscription as contemplated by this Subscription Agreement.
7.1.1 Subscriber acknowledges that the Sponsor, Company, FORT and others will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, Subscriber agrees to promptly notify the Sponsor, Company, and FORT if any of the acknowledgments, understandings, agreements, representations and warranties made by Subscriber set forth herein are no longer accurate in all material respects. The Sponsor, Company and FORT acknowledge that Subscriber will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement.
7.1.2 Each of the Sponsor, Company, FORT and Subscriber is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby, in each case, to the extent required by applicable law.
7.1.3 The Company may request from Subscriber such additional information as the Company may deem reasonably necessary to evaluate the eligibility of Subscriber to acquire the Securities, and Subscriber shall use commercially reasonable efforts to promptly provide such information as may be reasonably requested, to the extent readily available and to the extent consistent with its internal policies and procedures, provided that the Company agrees to keep confidential any such information provided by Subscriber, it being understood by Subscriber that the Company may without any liability hereunder reject Subscriber’s subscription prior to the Closing Date in the event Subscriber fails to provide such additional information requested by the Company to evaluate Subscriber’s eligibility or the Company determines that Subscriber is not eligible.
7.2 Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (a) when so delivered personally, (b) when sent, with affirmative confirmation of receipt, if sent by email, (c) one (1) business day after being sent, if sent by reputable, internationally recognized overnight courier service or (d) three (3) business days after the date of mailing by registered or certified mail (prepaid and return receipt requested), in any case, to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:
(i) if to Subscriber, to such address or addresses set forth on the signature page hereto;
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(ii) if to the Company (prior to the Closing), to:
Newbury Street II Acquisition Corp
121 High Street, Floor 3
Boston, Massachusetts 02110
Attn: Thomas Bushey
Telephone No.: (617) 334-2805
Email: [***]
with a required copy to (which copy shall not constitute notice):
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
Attn: Matthew A. Gray, Esq. Barry I. Grossman, Esq.
Telephone No.: (212) 370-1300
Email: [***];
[***]
(iii) if to the Sponsor, to:
Newbury Street II Acquisition Sponsor LLC
121 High Street, Floor 3
Boston, Massachusetts 02110
Attn: Thomas Bushey
Telephone No.: (617) 334-2805
Email: [***]
with a required copy to (which copy shall not constitute notice):
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
Attn: Matthew A. Gray, Esq.
Barry I. Grossman, Esq.
Telephone No.: (212) 370-1300
Email: [***];
[***]
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(iv) if to FORT, to:
FORT Robotics, Inc.
1608 Walnut Street, Floor 12
Philadelphia, PA 19103
Attn: Samuel Reeves
Telephone No.: 1-267-515-5880
Email: [***]
with a required copy to (which copy shall not constitute notice):
Fenwick & West LLP
801 California St
Mountain View, CA 94041
Attn: Steven Levine; David Michaels; Aman Singh
Telephone No.: 1-650-988-8500
Email: [***]; [***]; [***]
(v) if to the Company (following the Closing), to:
FORT Robotics, Inc.
1608 Walnut Street, Floor 12
Philadelphia, PA 19103
Attn: Samuel Reeves
Telephone No.: 1-267-515-5880
Email: [***]
with a required copy to (which copy shall not constitute notice):
Fenwick & West LLP
801 California St
Mountain View, CA 94041
Attn: Steven Levine; David Michaels; Aman Singh
Telephone No.: 1-650-988-8500
Email: [***]; [***]; [***]
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7.3 Entire Agreement. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof (other than any confidentiality agreement entered into by the Company and Subscriber in connection with the Offering).
7.4 Modifications and Amendments. This Subscription Agreement may not be amended, modified, waived or terminated except by an instrument in writing, signed by the parties hereto.
7.5 Waivers and Consents. The terms and provisions of this Subscription Agreement may be waived, or consent for the departure therefrom granted, only by a written document executed by the party against whom enforcement of such waiver or consent is sought. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Subscription Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent. No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
7.6 Assignment. Neither this Subscription Agreement nor any rights, interests or obligations that may accrue to the Subscriber hereunder (other than the Securities acquired hereunder by Subscriber, if any, after the Closing) may be transferred or assigned without the prior written consent of the Company, and any purported transfer or assignment without such consent shall be null and void ab initio; provided, however, Subscriber may transfer or assign its rights, interests and obligations hereunder to a controlled affiliate of Subscriber or another investment fund or account managed or advised by the same manager as Subscriber (or a related party or affiliate) that can satisfy the requirements of Section 2.1.4 and the other representations and warranties in Section 2.1, provided, further, that no such transfer or assignment without the prior express written consent of the Company shall release Subscriber of its obligations hereunder and such transferee(s) or assignee(s), as applicable, agrees in writing to be bound by the terms hereof as if it were the original Subscriber party hereto.
7.7 Benefit. Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns. Except as expressly provided for herein, this Subscription Agreement shall not confer rights or remedies upon any person other than the parties hereto and their respective successors and permitted assigns.
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7.8 Governing Law. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.
7.9 Consent to Jurisdiction; Waiver of Jury Trial. The parties hereto agree to submit any matter or dispute resulting from or arising out of the execution, performance, interpretation, breach or termination of this Subscription Agreement to the exclusive jurisdiction of the Court of Chancery of the State of Delaware in and for New Castle County, Delaware or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court (or, in each case, any appellate courts thereof) (the “Specified Courts”). Each of the parties agrees that service of any process, summons, notice or document in the manner set forth in Section 7.2 hereof or in such other manner as may be permitted by applicable law, shall be effective service of process for any proceeding with respect to any matters to which it has submitted to jurisdiction in this Section 7.9. Each of the parties hereto irrevocably and unconditionally agrees that it is subject to, and hereby submits to, the personal jurisdiction of the Specified Courts for any action, suit or proceeding arising out of this Subscription Agreement or the transactions contemplated hereunder and waives any objection to the laying of venue in the Specified Courts, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO A TRIAL BY JURY.
7.10 Non-Reliance and Exculpation. Subscriber acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person other than the statements, representations and warranties of the Company expressly contained in Section 2.2, FORT expressly contained in Section 2.3, and the Sponsor expressly contained in Section 2.4 of this Subscription Agreement, in making its investment or decision to invest in the Company. Subscriber further acknowledges and agrees that no Other Subscriber pursuant to Other Subscription Agreements (including the controlling persons, members, officers, directors, partners, agents, employees or other representatives of any such Other Subscriber) shall be liable to Subscriber pursuant to this Subscription Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Securities.
7.11 Severability. If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect. Upon such determination that any provision is invalid, illegal or unenforceable, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
7.12 Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Subscription Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby shall survive the Closing and the consummation of the Transaction until the expiration of any statute of limitations under applicable law.
7.13 Expenses. Each of the parties hereto shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
7.14 Headings and Captions. The headings and captions of the various subdivisions of this Subscription Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
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7.15 Counterparts. This Subscription Agreement may be executed in one or more counterparts (including by facsimile or electronic mail or in .pdf), all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
7.16 Construction. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Subscription Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Subscription Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant. All references in this Subscription Agreement to numbers of shares, per share amounts and purchase prices shall be appropriately adjusted to reflect any stock split, stock dividend, stock combination, recapitalization or the like occurring after the date hereof. As used in this Subscription Agreement, the term: (x) “person” shall refer to any individual, corporation, partnership, trust, limited liability company or other entity or association, including any governmental or regulatory body, whether acting in an individual, fiduciary or any other capacity; and (y) “affiliate” shall mean, with respect to any specified person, any other person or group of persons acting together that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such specified person (where the term “control” (and any correlative terms) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise). For the avoidance of doubt, any reference in this Subscription Agreement to an affiliate of the Company prior to the closing of a Business Combination will include the Sponsor.
7.17 Mutual Drafting. This Subscription Agreement is the joint product of Subscriber and the Company and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.
7.18 Remedies.
7.18.1 The parties agree that irreparable damage would occur if this Subscription Agreement was not performed in accordance with its specific terms or was otherwise breached and that money damages or other legal remedies would not be an adequate remedy for any such damage. It is accordingly agreed that the parties hereto shall be entitled to equitable relief, including in the form of an injunction or injunctions, to prevent breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 7.9, this being in addition to any other remedy to which any party is entitled at law or in equity, including money damages. The right to specific enforcement shall include the right of the parties hereto to cause the other parties hereto to cause the transactions contemplated hereby to be consummated on the terms and subject to the conditions and limitations set forth in this Subscription Agreement. The parties hereto further agree (i) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, (ii) not to assert that a remedy of specific enforcement pursuant to this Section 7.18 is unenforceable, invalid, contrary to applicable law or inequitable for any reason and (iii) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.
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7.18.2 The parties acknowledge and agree that this Section 7.18 is an integral part of the transactions contemplated hereby and without that right, the parties hereto would not have entered into this Subscription Agreement.
7.18.3 In any dispute arising out of or related to this Subscription Agreement, or any other agreement, document, instrument or certificate contemplated hereby, or any transactions contemplated hereby or thereby, the applicable adjudicating body shall award to the prevailing party, if any, the documented and out-of-pocket costs and external attorneys’ fees reasonably incurred by the prevailing party in connection with the dispute and the enforcement of its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby and, if the adjudicating body determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the adjudicating body may award the prevailing party an appropriate percentage of the documented out-of-pocket costs and external attorneys’ fees reasonably incurred by the prevailing party in connection with the adjudication and the enforcement of its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby or thereby.
8. Disclosure.
8.1 The Company shall, as promptly as practicable following the date of this Subscription Agreement (but in any event within one (1) business day thereafter), file a Current Report on Form 8-K with the Commission (collectively, the “Closing Disclosure Document”, and the actual issuance or acceptance (as applicable) of the filing of such press releases or Current Report on Form 8-K, the “Disclosure Time”) disclosing and describing all material terms of the transactions contemplated hereby and the Transaction, and a form of this Subscription Agreement will be filed with the Commission as an exhibit thereto. Upon the filing of the Closing Disclosure Document, to the Company’s knowledge, Subscriber shall not be in possession of any material, non-public information received from the Company, any of its officers, directors or employees or the Placement Agent. None of the Company, its officers, directors, employees and agents, FORT or the Sponsor shall deliver such material, non-public information from and after the Disclosure Time to any Subscriber. In the event that any notice or communication provided to a Subscriber contains or is deemed to contain material, non-public information regarding the Company, the Company shall, as promptly as practicable and in any event within one (1) business day, publicly disclose such information in a manner compliant with Regulation FD, so as to cleanse such information.
8.2 Notwithstanding anything in this Subscription Agreement to the contrary, the Company shall not publicly disclose the name of Subscriber or any of its affiliates, or include the name of Subscriber or any of its affiliates in any press release, marketing materials or any other public communication or in any filing with the Commission or any regulatory agency or trading market, without the prior written consent of Subscriber, except (i) as required by the federal securities law, and (ii) to the extent such disclosure is required by law, at the request of the Staff of the Commission or regulatory agency or under the regulations of Nasdaq or NYSE, in which case under clause (i) or (ii) above, the Company shall provide Subscriber with prior written notice of such disclosure, and shall reasonably consult with the Subscriber regarding such disclosure.
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9. Trust Account Waiver.
9.1 Subscriber hereby represents and warrants that it has read the Prospectus and understands that the Company has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and the overallotment securities acquired by its underwriters and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Company’s public shareholders (including overallotment shares acquired by the Company’s underwriters, the “Public Shareholders”), and that, except as otherwise described in the Prospectus, the Company may disburse monies from the Trust Account only: (a) to the Public Shareholders in the event they elect to redeem Company shares in connection with the consummation of the Company’s initial business combination (as such term is used in the Prospectus) (the “Business Combination”) or in connection with an extension of its deadline to consummate a Business Combination, (b) to the Public Shareholders if the Company fails to consummate a Business Combination within 24 months after the closing of the IPO, and subject to further extension by amendment to the Company’s organizational documents, (c) with respect to any interest earned on the amounts held in the Trust Account, amounts necessary to pay for any taxes and up to $100,000 in dissolution expenses, or (d) to the Company after or concurrently with the consummation of a Business Combination. For and in consideration of the Company entering into this Subscription Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Subscriber hereby agrees on behalf of itself and its affiliates that, notwithstanding anything to the contrary in this Subscription Agreement, neither Subscriber nor any of its affiliates do now or shall at any time hereafter have any right, title, interest or claim of any kind in or to any monies in the Trust Account or distributions therefrom, or make any claim against the Trust Account (including any distributions therefrom), regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Subscription Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the “Released Claims”). Subscriber on behalf of itself and its affiliates hereby irrevocably waives any Released Claims that Subscriber or any of its affiliates may have against the Trust Account (including any distributions therefrom) now or in the future and will not seek recourse against the Trust Account (including any distributions therefrom) for any reason whatsoever (including for an alleged breach of this Subscription Agreement or any other agreement with the Company or its affiliates). Subscriber agrees and acknowledges that such irrevocable waiver is material to this Subscription Agreement and specifically relied upon by the Company and its affiliates to induce the Company to enter in this Subscription Agreement, and Subscriber further intends and understands such waiver to be valid, binding and enforceable against Subscriber and each of its affiliates under applicable law. To the extent Subscriber or any of its affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Company or its Representatives, which proceeding seeks, in whole or in part, monetary relief against the Company or its Representatives, Subscriber hereby acknowledges and agrees that Subscriber’s and its affiliates’ sole remedy shall be against funds held outside of the Trust Account and that such claim shall not permit Subscriber or its affiliates (or any person claiming on any of their behalves or in lieu of any of them) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein. In the event Subscriber or any of its affiliates commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Company or its Representatives, which proceeding seeks, in whole or in part, relief against the Trust Account (including any distributions therefrom) or the Public Shareholders, whether in the form of money damages or injunctive relief, the Company and its Representatives, as applicable, shall be entitled to recover from Subscriber and its affiliates the associated legal fees and costs in connection with any such action in the event the Company or its Representatives, as applicable, prevails in such action or proceeding. Notwithstanding the foregoing, this Section 9.1 shall not affect any rights of Subscriber or its affiliates to receive distributions from the Trust Account in their capacities as Public Shareholders upon the redemption of their shares or the liquidation of the Company if it does not consummate a Business Combination prior to its deadline to do so. For purposes of this Subscription Agreement, “Representatives” with respect to any person shall mean such person’s affiliates and its and its affiliate’s respective directors, officers, employees, consultants, advisors, agents and other representatives. Notwithstanding anything to the contrary contained in this Subscription Agreement, the provisions of this Section 9.1 shall survive the Closing or any termination of this Subscription Agreement and last indefinitely.
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10. Reliance.
10.1 Subscriber acknowledges that the Sponsor, Company, and the Placement Agent will rely on the acknowledgements, understandings, agreements, representations and warranties of Subscriber contained in this Subscription Agreement. Subscriber agrees to promptly notify the Sponsor, Company, and the Placement Agent if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of Subscriber set forth herein are no longer accurate in all material respects. Subscriber acknowledges and agrees that the purchase by Subscriber of Securities from the Company will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such notice) by Subscriber as of the time of such purchase. The Company acknowledges that Sponsor, Subscriber, and the Placement Agent will rely on the acknowledgments, understandings, agreements, representations and warranties of the Company contained in this Subscription Agreement.
10.2 Each of the Company, the Placement Agent, the Sponsor, and Subscriber is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby to the extent required by law or regulatory bodies.
10.3 Subscriber agrees that, except in the case of fraud, gross negligence, willful misconduct or bad faith, the Placement Agent shall not be liable to it (including in contract, tort, under federal or state securities laws or otherwise) for any action heretofore or hereafter taken or omitted to be taken by any of them in good faith in connection with the transactions contemplated herein and the purchase and sale of the Securities hereunder. Subscriber agrees not to commence any litigation nor bring any claim against the Placement Agent in any court or other forum which relates to, may arise out of, or is in connection with, the transactions contemplated herein and the purchase and sale of the Securities hereunder, except for any litigation or claim arising from or related to fraud, gross negligence, willful misconduct or bad faith by the Placement Agent. The undertaking is given freely and after obtaining independent legal advice. Subscriber acknowledges that the Placement Agent will receive a fee with respect to the sale of Securities and a deferred underwriting commission in connection with the Company’s initial public offering.
11. Independent Nature of Investment. The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber under the Other Subscription Agreements, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under the Other Subscription Agreements. Subscriber agrees that none of the Other Subscribers shall be liable to it pursuant to the Other Subscription Agreements (including in contract, tort, under federal or state securities laws or otherwise) for any action heretofore or hereafter taken or omitted to be taken by any of them in good faith in connection with the transactions contemplated herein and the purchase and sale of the Securities hereunder. The decision of Subscriber to purchase Securities pursuant to this Subscription Agreement has been made by Subscriber independently of any Other Subscriber and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of the Company, FORT or any of their respective subsidiaries which may have been made or given by any Other Subscriber or by any agent, employee or other representative of any Other Subscriber, and neither Subscriber nor any of its agents, employees or other representatives shall have any liability to any Other Subscriber (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or Other Subscriber pursuant hereto or thereto, shall be deemed to constitute Subscriber and Other Subscribers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Subscriber and Other Subscribers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of Subscriber in connection with monitoring its investment in the Securities or enforcing its rights under this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights under this Subscription Agreement, and it shall not be necessary for any Other Subscriber to be joined as an additional party in any proceeding for such purpose.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the Company, FORT, the Sponsor and the Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date first set forth above.
| FORT ROBOTICS, INC. | |||
| By: | /s/ Samuel Reeves | ||
| Name: | Samuel Reeves | ||
| Title: | Chief Executive Officer | ||
| NEWBURY STREET II ACQUISITION CORP | |||
| By: | /s/ Thomas Bushey | ||
| Name: | Thomas Bushey | ||
| Title: | Chief Executive Officer | ||
| Newbury Street II Acquisition Sponsor LLC | |||
| By: | /s/ Thomas Bushey | ||
| Name: | Thomas Bushey | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Subscription Agreement]
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Accepted and agreed as of the date first set forth above.
SUBSCRIBER:
| Name of Subscriber: | Name of Joint Subscriber, if applicable | |||||
| {Please print} | {Please print} | |||||
| Signature of Subscriber: | Signature of Joint Subscriber, if applicable: | |||||
| By: | By: | |||||
| Name: | Name: | |||||
| Title: | Title: | |||||
If there are joint investors, please check one:
| ☐ | Joint Tenants with Rights of Survivorship |
| ☐ | Community Property |
| ☐ | Tenants-in-Common |
| Subscriber’s EIN: | Joint Subscriber’s EIN: |
| Business Address-Street: | Mailing Address-Street (if different): |
| City, State, Zip: | City, State, Zip: |
| Country: | Country: |
| Attn: | Attn: |
| Telephone No.: | Facsimile No: |
| Telephone No.: | Facsimile No: |
| Email Address: | Email Address: |
Aggregate Purchase Price: $
Number of Shares of PIPE Common Stock: _____________
Subscriber must pay the Purchase Price by wire transfer of U.S. dollars in immediately available funds to the account specified by the Company in the Notice.
If Subscriber wants certificated Securities rather than book-entry form, indicate here:
[Subscriber Signature Page to Subscription Agreement]
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Schedule A
| Number of Reallocated Sponsor Shares* | Number of Incentive Shares* | |
| [____] | [____]** | |
| * | To be distributed to Subscriber in connection with their participation in the Offering pursuant to the Subscription Agreement |
| ** | Expressed as the number of shares of Common Stock into which Incentive Shares will be converted at the Transaction Closing. Assuming a Subscriber elects the Non-Redemption Option with respect to the number of shares reflected on Schedule B, for each share of PIPE Common Stock hereafter elected to be satisfied pursuant to the Non-Redemption Option, Subscriber shall receive additional Incentive Shares to achieve the Per Share Effective Price, with such additional Incentive Shares to be converted into the applicable number of shares of Common Stock at the Transaction Closing. Assuming a Subscriber elects the Non-Redemption Option with respect to the number of shares reflected on Schedule B, for each share of Non-Redemption Option hereafter elected to be satisfied pursuant to the PIPE Common Stock, Subscriber shall have their Incentive Shares reduced to achieve the Per Share Effective Price. The aggregate number of shares of Common Stock to be issuable shall be rounded to the nearest share of Common Stock and no fractional shares will be issued. |
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SCHEDULE B
Non-Redemption Option
This Schedule B should be completed by
Subscriber
if they are deciding to participate in the Non-Redemption Option
☐ Please check the box if you are participating in the Non-Redemption Option. If checked, please fill out the following information below:
| ● | Number of desired shares subject to Non-Redemption Option: ____________________ |
| ● | Number of Public Shares held currently: ____________________ |
| ● | Number of Public Shares to be purchased in open market: ____________________ |
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SCHEDULE C
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
This Schedule C should be completed by
Subscriber
and constitutes a part of the Subscription Agreement.
| A. | QUALIFIED INSTITUTIONAL BUYER STATUS |
(Please check the applicable subparagraphs):
| 1. | ☐ | Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”) (a “QIB”)). |
| 2. | ☐ | Subscriber is subscribing for the Securities as a fiduciary or agent for one or more investor accounts, and each owner of such account is a QIB. |
*** OR ***
| B. | INSTITUTIONAL ACCREDITED INVESTOR STATUS |
(Please check the applicable subparagraphs):
| 1. | ☐ | Subscriber is an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), and have marked and initialed the appropriate box on the following page indicating the provision under which we qualify as an institutional “accredited investor.” |
| 2. | ☐ | Subscriber is not a natural person. |
*** AND ***
| C. | AFFILIATE STATUS |
(Please check the applicable box) SUBSCRIBER:
| ☐ | is: |
| ☐ | is not |
an “affiliate” (as defined in Rule 144 under the Securities Act) of the Company or acting on behalf of an affiliate of the Company.
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Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. Subscriber has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies as an “accredited investor.”
| ☐ | Any bank as defined in section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity; |
| ☐ | Any broker or dealer registered pursuant to section 15 of the Exchange Act; |
| ☐ | Any investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940 or registered pursuant to the laws of a state; |
| ☐ | Any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act of 1940; |
| ☐ | Any insurance company as defined in section 2(a)(13) of the Securities Act; |
| ☐ | Any investment company registered under the Investment Company Act or a business development company as defined in section 2(a) (48) of the Investment Company Act; |
| ☐ | Any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958; |
| ☐ | Any Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; |
| ☐ | Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; |
| ☐ | Any employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) the plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”; |
| ☐ | Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940; |
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| ☐ | Any (i) corporation, limited liability company or partnership, (ii) Massachusetts or similar business trust, or (iii) organization described in section 501(c)(3) of the Internal Revenue Code, in each case that was not formed for the specific purpose of acquiring the securities offered and that has total assets in excess of $5,000,000; |
| ☐ | Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in section 230.506(b)(2)(ii) of Regulation D under the Securities Act; |
| ☐ | Any entity, other than an entity described in the categories of “accredited investors” above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000; |
| ☐ | Any “family office,” as defined under the Investment Advisers Act that satisfies all of the following conditions: (i) with assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment; |
| ☐ | Any “family client,” as defined under the Investment Advisers Act, of a family office meeting the requirements in the previous paragraph and whose prospective investment in the issuer is directed by such family office pursuant to the previous paragraph; or |
| ☐ | Any entity in which all of the equity owners are accredited investors. |
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Exhibit 99.1
FORT Robotics SAFETY + SECURITY + RELIABILITY The Trust Layer for Physical AI August 2026 | INVESTOR PRESENTATION | CONFIDENTIAL
2 About This Presentation This confidential presentation ("presentation") is provided for informational purposes only and has been prepared to assist interested parties in making their own evaluation with respect to (1) a business combination (the "proposed transaction") between Fort Robotics, Inc. ("Fort Robotics") and Newbury Street II Acquisition Corp ("Newbury Street" and "NTWO") and (2) Newbury Street's proposed private offering of public securities (the "proposed financing") and for no other purpose. The information contained herein does not purport to be all-inclusive and none of Fort Robotics, Newbury Street nor any of their respective affiliates, directors, officers, employees or advisers or any other person has independently verified the information in this presentation and no representation or warranty, express or implied, is or will be given by any such person as to the accuracy or completeness of information in this presentation. To the fullest extent permitted by law, in no circumstances will Fort Robotics, Newbury Street or any of their respective subsidiaries, interest holders, affiliates, representatives, partners, directors, officers, employees, advisers or agents be responsible or liable for any direct, indirect or consequential loss or loss of profit arising from the use of this presentation, its contents, its omissions, reliance on the information contained within it, or on opinions communicated in relation thereto or otherwise arising in connection therewith. Recipients of this presentation are not to construe its contents, or any prior or subsequent communications from or with Fort Robotics, Newbury Street or their respective representatives, as investment, legal or tax advice. In addition, this presentation does not purport to be all- inclusive or to contain all of the information that may be required to make a full analysis of Fort Robotics, Newbury Street, the proposed transaction or the proposed financing. Recipients of this presentation should each make their own evaluation of Fort Robotics, Newbury Street, the proposed transaction and the proposed financing and of the relevance and adequacy of the information and should make such other investigations as they deem necessary. This presentation is for informational purposes only to assist prospective purchasers in the proposed financing in making their own evaluation with respect to the transaction. By accepting this presentation, the recipient acknowledges and agrees that all of the information contained herein or disclosed orally during this presentation is confidential, that the recipient will not distribute, reproduce, disclose or use such information for any purpose other than for the purpose of evaluating the recipient's participation in the proposed financing. Further, by accepting this presentation, the recipient agrees to maintain all such information in strict confidence, including in strict accordance with any other contractual obligations applicable to the recipient and all applicable laws, until such information becomes publicly available not as a result of any breach of such confidentiality obligation. Forward-Looking Statements This communication includes "forward-looking statements" within the meaning of the federal securities laws. Forward-looking statements may be identified by the use of words such as "estimate," "plan," "project," "forecast," "intend," "will," "expect," "anticipate," "believe," "seek," "target," "continue," "could," "may," "might," "possible," "potential," "predict" or similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements are based on current expectations and projections about future events. These statements include: projections of market opportunity and market share; estimates of customer adoption rates and usage patterns; projections regarding Fort Robotics' ability to commercialize new products and technologies and industry use cases; Fort Robotics' ability to maintain, protect, and enhance its intellectual property; Fort Robotics' deployment of proceeds from capital raising transactions; expectations regarding Fort Robotics' ability to execute its business model and the expected financial benefits of such model; Fort Robotics' expectations concerning relationships with strategic partners, suppliers, governments, state-funded entities, regulatory bodies and other third parties; future ventures or investments in companies, products, services, or technologies; expectations regarding Fort Robotics' acquisition strategy; projections of development and commercialization costs and timelines; expectations regarding Fort Robotics' ability to attract, retain, and expand its customer base; the successful consummation and potential benefits of the proposed transaction and expectations related to its terms and timing; and the potential for Fort Robotics to increase in value. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions, many of which are beyond the control of Fort Robotics and Newbury Street. These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions that may cause actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such statements. Such risks and uncertainties include, those described in Newbury Street's Annual Report on Form 10-K for the year ended December 31, 2025, as filed with the U.S. Securities and Exchange Commission (the "SEC") on March 6, 2026, and in subsequent reports and disclosure documents that Newbury Street may file with the SEC together with additional risks relating to Fort Robotics and the proposed transaction, including, without limitation, the following: that Fort Robotics is pursuing an emerging technology; faces significant technical challenges and may not achieve commercialization or market acceptance; Fort Robotics' historical net losses and limited operating history; Fort Robotics' expectations regarding future financial performance and capital requirements; Fort Robotics' ability to manage growth and expand its operations; Fort Robotics' use and reporting of business and operational metrics; Fort Robotics' competitive landscape; Fort Robotics' dependence on members of its senior management and its ability to attract and retain qualified personnel; the potential need for additional future financing; potential future acquisitions or investments in companies, products, services or technologies; Fort Robotics' reliance on strategic partners and other third parties; Fort Robotics' ability to maintain, protect and defend its intellectual property rights; risks associated with privacy, data protection or cybersecurity incidents and related regulations; the use, rate of adoption, and regulation of artificial intelligence and machine learning; uncertainty or changes with respect to laws and regulations; uncertainty or changes with respect to taxes, trade conditions and macroeconomic environment; the combined company's ability to maintain internal control over financial reporting and operate a public company; the possibility that required regulatory approvals for the proposed transaction are delayed or are not obtained, which could adversely affect the combined company or the expected benefits of the proposed transaction; the risk that shareholders of Newbury Street could elect to have their shares redeemed, leaving the combined company with insufficient cash to execute its business plans; the occurrence of any event, change or other circumstance that could give rise to the termination of the business combination agreement; the outcome of any legal proceedings or government investigations that may be commenced against Fort Robotics or Newbury Street; failure to realize the anticipated benefits of the proposed transaction; the ability of Newbury Street or the combined company to issue equity or equity- linked securities in connection with the proposed transaction or in the future; and other factors described in Newbury Street's filings with the SEC. Additional information concerning these and other factors that may impact such forward-looking statements can be found in filings and potential filings by Fort Robotics, Newbury Street or the combined company resulting from the proposed transaction with the SEC, including under the heading "Risk Factors." If any of these risks materialize or assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. In addition, these statements reflect the expectations, plans and forecasts of Fort Robotics' and Newbury Street's management as of the date of this communication; subsequent events and developments may cause their assessments to change. While Fort Robotics and Newbury Street may elect to update these forward-looking statements at some point in the future, they specifically disclaim any obligation to do so. Accordingly, undue reliance should not be placed upon these statements. In addition, statements that "we believe" and similar statements reflect Newbury Street's and Fort Robotics' beliefs and opinions on the relevant subject. These statements are based upon information available to Newbury Street and Fort Robotics as of the date of this presentation, and while such information is believed to form a reasonable basis for such statements, such information may be limited or incomplete, and statements in the presentation should not be read to indicate that either Newbury Street or Fort Robotics has conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements. An investment in Newbury Street is not an investment in any of our founders' or sponsors' past investments, companies or affiliated funds. The historical results of those investments are not indicative of future performance of Newbury Street, which may differ materially from the performance of our founders' or sponsors' past investments.
3 About This Presentation (Cont.) Additional Information About the Proposed Transaction and Where to Find It The proposed transaction will be submitted to shareholders of Newbury Street for their consideration. Newbury Street intends to file a registration statement on Form S-4 (the "Registration Statement") with the SEC, which will include a proxy statement/consent solicitation statement to be distributed to Newbury Street's shareholders in connection with Newbury Street's solicitation for proxies for the vote by Newbury Street's shareholders in connection with the proposed transaction and other matters to be described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to Fort Robotics' shareholders in connection with the completion of the proposed transaction. After the Registration Statement has been filed and declared effective, a definitive proxy statement/prospectus/consent solicitation statement and other relevant documents will be mailed to Newbury Street's shareholders as of the record date established for voting on the proposed transaction. Before making any voting or investment decision, investors, Newbury Street and Fort Robotics' shareholders and other interested persons are advised to read, once available, the definitive proxy statement/prospectus/consent solicitation statement, as well as other documents filed with the SEC by Newbury Street in connection with the proposed transaction, as these documents will contain important information about Newbury Street, Fort Robotics and the proposed transaction. Investors, shareholders and other interested parties may obtain a copy of the definitive proxy statement/prospectus/consent solicitation statement, once available, as well as other documents filed by Newbury Street with the SEC, without charge, at the SEC's website located at www.sec.gov or by directing a written request to Newbury Street II Acquisition Corp, 121 High Street, Floor 3, Boston, Massachusetts 02110. Participants in the Solicitation Newbury Street, Fort Robotics and certain of their respective directors, executive officers and other members of management and employees may, under SEC rules, be deemed to be participants in the solicitation of proxies from Newbury Street's shareholders in connection with the proposed transaction. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of Newbury Street's shareholders in connection with the proposed transaction will be set forth in the proxy statement/prospectus/consent solicitation statement when it is filed by Newbury Street with the SEC. More information about Newbury Street's directors and executive officers can be found in Newbury Street's final prospectus related to its initial public offering filed with the SEC on November 1, 2024 and in the Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q filed by Newbury Street with the SEC. Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests will be included in the proxy statement/prospectus/consent solicitation statement when it becomes available. Investors, shareholders, and other interested persons should read the proxy statement/prospectus/consent solicitation statement carefully when it becomes available before making any voting or investment decisions. Free copies of these documents may be obtained from the sources described above. No Offer or Solicitation This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. This communication is not, and under no circumstances is to be construed as, a prospectus, an advertisement or a public offering of the securities described herein in the United States or any other jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or exemptions therefrom. INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. Financial Measures Information and Data The financial information and data contained in this presentation is unaudited and does not conform to Regulation S-X. Accordingly, such information and data may not be included in, may be adjusted in or may be presented differently in, any proxy statement/prospectus or registration statement to be filed by Newbury Street with the SEC, and such differences may be material. In particular, all Fort Robotics projected financial information included herein is preliminary and subject to risks and uncertainties. Any variation between Fort Robotics' actual results and the projected financial information included herein may be material. No Incorporation by Reference The information contained in third-party citations and websites referenced in this communication is not incorporated by reference into this communication. Trademarks This presentation contains trademarks, service marks, trade names and copyrights of Fort Robotics, Newbury Street, and other companies, each of which are the property of their respective owners. All third-party brand names and logos appearing in this presentation are trademarks or registered trademarks of their respective holders. Any such appearance does not necessarily imply any endorsement of Newbury Street, Fort Robotics. the proposed transaction or the proposed financing. Risk Factors For a description of certain risks relating to Newbury Street and Fort Robotics, including their business and operations, the proposed transaction, and the proposed financing recipients should refer to (i) the "Risk Factors" section of Newbury Street's Annual Report on Form 10-K for the year ended December 31, 2025, as filed with the SEC on March 6, 2026, and in subsequent reports filed by Newbury Street with the SEC, and (ii) the "Risk Factors" section included at the end of this presentation. Use of Data Information in this presentation is based on data and analyses from various sources. This presentation also contains estimates and other statistical data made by independent parties and by Newbury Street and Fort Robotics relating to market size and growth and other industry data. These estimates and other statistical data involve a number of assumptions and limitations, and investors, shareholders and other interested parties are cautioned not to give undue weight to such estimates and other statistical data. The statistical and other industry data generated by independent parties and contained in this presentation has not been independently verified and, accordingly, Newbury Street and Fort Robotics cannot guarantee the accuracy or completeness of such estimates or data. In addition, expectations, assumptions, estimates and projections of the future performance of relevant markets in which Fort Robotics operates are necessarily subject to a high degree of uncertainty and risk. Personnel Disclosure All personnel listed in this presentation may change from time to time, without notice. Please do not rely on any personnel listed in this presentation. Investors, shareholders and other interested are cautioned not to rely on listed personnel, nor do Newbury Street or Fort Robotics give any assurances regarding listed personnel.
4 Today's Presenters • Founder and CEO of Sunderland Capital Partners • Former President and director of Ondas holdings (ONDS) • Prior to founding Sunderland Capital, he was a portfolio manager at Blackrock • Prior to Blackrock, Mr. Bushey was a senior analyst for Mayo Capital Partners and Millennium Partners Samuel Reeves Founder and Chief Executive Officer Nathan Bivans Founding Chief Technology Officer • Previously Co-Founder and CEO of Humanistic Robotics • Worked with U.S. Government to build innovative mine clearance tools and robotic control systems • Deployed robotic systems across the globe working with the UN, local governments and commercial entities • Previously the CTO of Humanistic Robotics, Inc. • Developed and patented wireless safety protocol designed for dangerous applications in landmine clearance • Spent several years at Apple Computer where his team was central to mobile computer designs, including contributions to the development of the world's first 17″ laptop Tom Bushey Chief Executive Officer and Director
Samuel Reeves FOUNDER/CEO Founded Humanistic Robotics in 2012, a leading early robotics partner of the US Army, tasked with safety across thousands of miles of roads in UN Peacekeeping Ops in Africa & the Middle East and the predecessor to FORT Robotics Director Nominees Select Existing Investors 5 Nathan Bivans FOUNDING CTO Developed hardware for early Apple laptops, smart lighting controls at Lutron, and cable systems for Motorola that power the world's largest networks Sarah Keim CHIEF PEOPLE OFFICER Scott Zappetti FRACTIONAL, INTERIM CFO Tom Bushey Newbury II CEO and Director Sally Miller DHL Supply Chain Global CIO Vijay Kumar Dean of Penn Engineering; ASME & IEEE Fellow Jennifer Vescio Director at Newbury II; Board Member at Nexar and Former Senior Executive at Uber Austin Blais SALES Jon Ibrahim CUSTOMER EXPERIENCE Rinus Strydom CRO Amod Damle HEAD OF PRODUCT Experts in Industrial Safety and Robotics THE RIGHT TEAM: Karl Iagnemma CEO at Vecna Robotics; Former President and CEO at Motional
We believe safety infrastructure has not kept pace with this advancement, creating a bottleneck to scaling Physical AI 6 MACRO TECH MARKET The Productivity Crisis • Global productivity has stalled as worksites face a "perfect storm" of labor shortages and stagnant safety records • Human-only physical labor is less economically or operationally viable Infrastructure Maturation Low-cost sensors (driven by mobile/auto), high-performance onboard compute (NVIDIA), and the breakthrough of "Digital AI" have finally converged to make physical autonomy scalable and cost-effective The End of the Pilot Purgatory • Market has shifted from less scalable Proof-of-Concepts to repeatable commercial deployments • Validated by the rise in six-figure deals across the FORT customer base FORT is Positioned at the Inflection Point of Physical AI THE MARKET MOMENT:
7 • Physical AI will not be trusted unless safety is guaranteed • Safety provides the deterministic "floor" that probabilistic AI lacks • Scale requires a certifiable layer to ensure the machine won't harm people or assets • An independent system running in parallel to the AI stack • Continuously monitors machine behavior and operational environment in real time • Intervenes only when safety rules are violated – stopping or slowing to reduce risk and prevent catastrophe • Aligned with OEMs, AIs, End Users • Lacks context awareness, forcing machines to operate at reduced speeds • High system cost inflates the BOM, which limits adoption. Low performance and high cost of safety limit the machine's ROI • Safety lives only onboard the machine – cannot integrate with offboard systems, people, sensors, or distributed intelligence Without safety, trust collapses, and the Physical AI economy cannot scale Safety is the Foundation for Trust Why Legacy Safety Bottlenecks the Industry What the Safety Layer Actually Is (Parallel Guardrails) Functional Safety is Required in Everything that Moves THE ARCHITECTURE OF TRUST:
The Rise of Physical AI Is Creating New Safety & Security Risks: Warehouses, factories, construction sites, and other physical worksites already contain autonomous machines, robotics systems, sensors, infrastructure, and human workers operating together. Yet systems arrive with different safety assumptions, trust models, interfaces, and operating requirements – making safe deployment and risk management increasingly difficult as environments become more complex. Without a common trust and safety framework, every new machine introduces new operational, safety, and security risks. DIFFERENT OEMS Machines from different manufacturers arrive with proprietary interfaces, communications protocols, and varying levels of built-in trust and safety protections. DIFFERENT AI SYSTEMS Individual AI system operates with different decision logic, safety assumptions, and operating constraints without a shared trust framework. MISSING COMMON TRUST FRAMEWORK Creating blind spots, operational risk, and inconsistent protection across the worksite. RESULTS: Increased Safety & Security Risk Greater Liability Slower Adoption. SENSORS Cameras, LIDAR, radar, and environmental monitoring FIRE SAFETY Fire alarms, smoke detection, and suppression systems ACCESS CONTROL Badging, door locks, turnstiles, and secure zones TELEOPERATION Remote operators monitor and intervene when needed PEOPLE Workers protected by real-time safety enforcement THIRD-PARTY SYSTEMS WMS, MES, ERP, BMS and other enterprise systems Machine, systems, and people operate independently. Safety, security, and risk management policies are rarely unified across diverse machine types and workflows LACK OF COMMON TRUST FRAMEWORK 8
z 9 Just as Android created a common operating layer for mobile devices, FORT delivers a unified safety and trust layer across machines, people, and environments. THE ARCHITECTURE OF TRUST: How FORT manages safety, security, and operational risk at industrial scale ON-MACHINE TRUST Products: Embedded Safety Hardware Purpose: Enforces trusted machine-level safety. SITE TRUST Products: Worksite Safety Hardware Purpose: Extends certified safety and trust across people, infrastructure, and the worksite. GLOBAL TRUST Products: Platform Software & APIs Purpose: Delivers trusted operations, integrations, certification management, and platform services. DISTRIBUTED SAFETY & TRUST PLATFORM Deterministic safety enforcement. Trusted machine-to-site integration. Certified operations. Across machines, people, and infrastructure. UNIFIED SAFETY LAYER ✓People and robots work safely together ✓Provides enterprises with more confidence ✓Unifies visibility across the worksite ✓Remote operations and interventions across applications ✓Lower risk ✓Higher uptime ✓Greater productivity SENSORS Cameras, LIDAR, radar, and environmental monitoring FIRE SAFETY Fire alarms, smoke detection, and suppression systems ACCESS CONTROL Badging, door locks, turnstiles, and secure zones TELEOPERATION Remote operators monitor and intervene when needed PEOPLE Workers protected by real-time safety enforcement THIRD-PARTY SYSTEMS WMS, MES, ERP, BMS and other enterprise systems
How our business scales geometrically as safety, adoption, and ecosystem density compound. SCALABLE COMMERCIALIZATION MODEL: From Embedded Safety Infrastructure to a Trust Platform Machine Layer (Embedded) • Embedded Products • OEM Integration • Premium Software Ecosystem Layer (Platform) • Platform Services • Enterprise Safety Management • Ecosystem Revenue Share • API Integrations Worksite Layer (Management) • Mixed Fleet & Worksite Safety Management • Trusted Operations • Teleoperation • Dynamic Safety Policies MORE MACHINES CONNECTED MORE WORKSITES MANAGED MORE DATA MORE PARTNERS MORE PLATFORM ADOPTION 10 PHASE 2 PHASE 1 PHASE 3
11 Customers(1) Across Major Physical AI verticals Deployed Units(2) Across the U.S., Asia, Europe, and Middle East INDUSTRIAL AUTOMATION & INNOVATION TRANSPORTATION WAREHOUSING CONSTRUCTION & ENERGY AGRICULTURE & TURF DEFENSE & GOVERNMENT Source: Company provided materials. (1) As of December 31, 2025. (2) As of April 20, 2026. Sales FTEs(1) Significant inbound demand with planned platform expansion via S&M hiring 600+ 19,500+ <10 CUSTOMER BASE: Broad Adoption Across Industries, Customers, and Geographies
12 Vertical Markets 19.8% Industrial Automation 3.0% Humanoids 19.8% Defense 1.8% Entertainment 13.2% Agriculture & Turf 1.3% Energy 12.1% Construction & Mining 1.2% Other 9.4% Warehouse 1.0% Rail 7.6% Transportation & Delivery 0.8% Space 4.0% University 0.8% Foundation Models 3.3% Government 0.8% Ports % OF NUMBER OF CUSTOMERS(1) FORT's customer base positions it to capture market leaders across key end markets Source: Company provided materials. (1) As of December 31, 2025. Global Adoption Across Key Verticals DIVERSIFIED MARKET CAPTURE:
33.4% 21.8% LARGE BUSINESS VC-BACKED 35.2% 13 NORTH AMERICA 70.1% EUROPE 19.5% MIDDLE EAST: 3.0% ASIA PACIFIC 7.4% % OF NUMBER OF CUSTOMERS BY GEOGRAPHY(1) 5.6% 4.0% SMALL-MEDIUM BUSINESS GOVERNMENT UNIVERSITY % OF NUMBER OF CUSTOMERS BY BUSINESS TYPE(1) Source: Company provided materials. (1) As of December 31, 2025. Global Adoption Across Key Verticals DIVERSIFIED MARKET CAPTURE:
Safety Is Traditionally Outsourced to Specialists The pattern is prevalent across mature machinery verticals We believe Physical AI will look to follow this same pattern. The question isn't whether safety will be outsourced — it's who will be the dominant platform VERTICAL SAFETY FUNCTION SPECIALIST SUPPLIERS Automotive Aviation Oil & Gas Brakes Flight Control Emergency Shutdown 14 Robotics Distributed Control Bosch Brembo Continental Collins Aerospace Honeywell Thales ABB Emerson Electric Siemens THE ARCHITECTURE OF TRUST:
15 Specialization & Scale SELF-REINFORCING DATA FLYWHEEL • Horizontal deployment across industries • Safety telemetry from thousands of machines • Platform capability compounds with every deployment Defensible Technology & Certification PROPRIETARY SAFETY PLATFORM • Proprietary control architecture • Safety certifications (SIL-3) • Strong IP portfolio & patented wireless safety protocols Market Entrenchment INDUSTRY LEADERSHIP & ADOPTION • 10+ years of platform development • OEM design wins • Early adoption across multiple industries and machine types • Brand recognition across robotics ecosystem FORT is building a safety-certified platform for Physical AI, having already navigated complex regulatory and technical hurdles required for real-world deployment The Structural Moat Powering FORT
16 Source: Company provided materials. Core Platform Architecture SELECT GRANTED PATENTS Filing Number Internal Designation Description US9156476 FORT-M01-US System and method for remote control of unmanned vehicles US11947331 EU 20845955.2 FORT-M03-US2 Systems and methods for safety-enabled control US12204309 FORT-M03-US3 Continuation of M03-US2 5 KEY ADVANTAGES • Modular, safety-first architecture for robot control • Integrated remote control with built-in safety enforcement Granted Patents 2 Published /Pending Patents Functional Safety Software & Hardware SELECT GRANTED PATENTS Filing Number Internal Designation Description US11789806 FORT-M14-US2 Method for encoded diagnostics in a functional safety system US12081202 FORT-M18-US Feedback diverse, dual-controller-architecture functional safety system US11940869 FORT-M10-US2 Determining functional safety state using software-based ternary state translation of analog input 7 KEY ADVANTAGES • High-integrity fault detection with minimal system overhead • Robust, synchronized safety control across hardware and software Granted Patents 4 Published /Pending Patents SELECT GRANTED PATENTS Filing Number Internal Designation Description US11181870 FORT-M05-US1 Systems and methods for safety-enabled control US12282325 FORT-M05-US3 Continuation of FORT-M05-US2 US11934185 ORT-M05-US2 Systems and methods for safety-enabled control 3 KEY ADVANTAGES • Seamless and safe switching between control modes • Centralized management of dynamic robot operations Granted Patents 3 Published /Pending Patents Communications SELECT GRANTED PATENTS Filing Number Internal Designation Description US12587459 FORT-M22-US Method for dynamic multihoming for reliable data transmission (CIP M08 + M12) US12086019 FORT-M21-US Method for decreasing probability of undetected errors on large messages over a black channel US12132587 FORT-M07-US2 System and method for safety message latency 6 KEY ADVANTAGES • Low-latency, reliable communication across networks • Adaptive data routing and bandwidth efficiency Granted Patents 3 Published /Pending Patents SELECT GRANTED PATENTS Filing Number Internal Designation Description US12008099 FORT-M19-US Method for safety responses to security policy violations US11924811 FORT-M06-US Secure wireless communication of robotic safety state US12284275 FORT-M20-US Method for securely generating and distributing symmetric keys for grouping secure communications 4 KEY ADVANTAGES • Decentralized, secure communication for robotic systems • Scalable encryption and reliability for industrial networks Granted Patents 4 Published /Pending Patents Machine Select & Dynamic Robot Mgmt. Security Defensible Intellectual Property & Patents PUTTING US AHEAD IN THE FIELD:
17 A self-reinforcing platform that drives safety, adoption, and ecosystem growth More OEMs build with "FORT Inside" Data Strengthens Context- Aware Safety Ecosystem partners "Integrate with FORT" More End Users "Manage with FORT" How Network Effects Compound THE FLYWHEEL:
18 Source: Company provided materials. Note: In 2024 and 2025, Q1 bookings represented ~10% of total annual bookings. (1) Bookings can vary significantly quarter to quarter depending in part on the timing of the signing of large contracts. Information regarding FORT's bookings is not comparable to, nor should it be substituted for, an analysis of FORT's revenues over time. Bookings involve estimates and judgments. There are no third-party standards or requirements governing the calculation of bookings. The Network Effect Significant inbound demand with upside for additional platform expansion via strategic S&M hiring. As engineers migrate across the industry, they carry the FORT safety standard with them – accelerating adoption Scaling past the inflection point Capitalizing on our lead to cement FORT as the horizontal safety standard MANUFACTURING AGRICULTURE AUTONOMOUS VEHICLES CONSTRUCTION DEFENSE LAST MILE DELIVERY 800 600 200 400 CUMULATIVE CUSTOMERS 0 2.6x Total Growth 2021 2023 2025 30,000 10,000 20,000 DEPLOYED UNITS 0 3.9x Total Growth 2021 2023 2025 40 30 10 20 0 6-FIGURE CONTRACTS 3.8x Total Growth 2021 2023 2025 4 3 1 2 0 BOOKINGS(M)(1) +100% YoY Growth 1Q 2025 1Q 2026 Accelerating Market Velocity & Commercial Scale MARKET VALIDATION:
First-Year Cohort # Customers 2019 2020 2021 2022 2023 2024 2025 Total % of '25 2019 Cohort 74 $957,538 $2,179,882 $3,390,719 $1,376,048 $2,013,516 $1,249,435 $1,548,525 $12,715,663 11% 2020 Cohort 70 - 1,743,897 1,480,462 644,112 1,220,658 4,941,257 2,765,998 12,796,385 19% 2021 Cohort 83 - - 1,114,529 1,636,359 1,218,572 302,543 1,131,548 5,403,551 8% 2022 Cohort 61 - - - 952,573 187,591 179,198 477,527 1,796,889 3% 2023 Cohort 103 - - - - 1,359,669 2,952,668 2,350,781 6,663,117 16% 2024 Cohort 100 - - - - - 2,038,994 1,731,878 3,770,872 12% 2025 Cohort (New Logos) 116 - - - - - - 4,370,195 4,370,195 30% Total 607 $957,538 $3,923,779 $5,985,711 $4,609,091 $6,000,006 $11,664,095 $14,376,453 $47,516,674 100% Cohort Retention — Bookings $ by First-Year Cohort 19 Market Proof Framework – Cohort Analysis Source: Company provided materials as of 5/1/26 Note: Bookings represent executed customer purchase commitments during the applicable period and do not necessarily represent recognized revenue. Numbers may not foot due to rounding Cohort Durability (Old Cohorts Compound, Don't Churn Out) Pre-2025 cohorts still generate ~$10.0M (~70% of 2025 bookings). The 2020 cohort delivers ~$2.8M in 2025 (5 years after first booking). The 2019 cohort still produces ~$1.5M after 6 years New Logo Engine (Each year adds a bigger cohort) 2025 new logos = ~$4.4M (~30% of bookings) — the largest first-year contribution of any cohort, and ~2x the 2024 cohort's first-year contribution (~$2.0M) Concentration De-Risking (Customer count is increasing) The business has materially less single- customer risk than it had in 2020, while growing bookings ~100% YoY in Q1 2026
2024 2025 2026 YTD YOY Change %(1) January $169,082 $329,686 $713,115 116% February 286,429 280,839 750,148 167% March 612,584 1,112,502 2,034,839 83% 1Q $1,068,095 $1,723,026 $3,498,102 103% April $348,936 $852,966 $2,017,570 137% May 363,193 857,031 June 2,336,724 2,307,486 July 670,850 476,029 August 499,110 1,050,180 September 1,049,079 2,439,941 October 1,412,954 1,071,296 November 1,302,492 791,778 December 2,612,662 2,806,718 Total $11,664,095 $14,376,453 1Q % of Full Year Bookings 9% 12% Bookings per Month Source: Company provided materials as of 5/1/26 Note: Bookings represent executed customer purchase commitments during the applicable period and do not necessarily represent recognized revenue (1) YoY Change % compares 2026 monthly bookings to the corresponding 2025 monthly period Historical Bookings (Summary) 20
Revenue Framework 1 2 4 3 • Early customers are customers that spend less than $100,000 annually with FORT, mature customers spend more than $100,000 annually with FORT(1) • Growth may largely follow historical growth, but accelerate with conversion of early to mature customers, new enterprise accounts, and industry expansion • Growth in number of mature customers and increase in revenue per mature customer may be key drivers of future revenue growth Growth in total early customers may continue to grow by ~13%, and revenue per early customer may follow historical growth trends, expanding in the mid-single digits Growth in the number of mature customers may grow by ~50%, like historical figures, as industry rollout continues and clients move from early to mature categorization Revenue per mature customer may grow at an accelerated pace with new software offerings and greater numbers of machines deployed Mature customers share grew 11% in 2024–25 in total revenue mix, which may continue to follow historical trends with the larger number of mature customers and average revenue each contributes 1 2 3 4 Metric 2024A 2025A Early Customers 201 227 Growth in Early Customers % - 13% Rev. / Early Customer $14,592 $15,464 Rev. / Early Customer Growth % - 6% Total Early Customer Revenue $2,932,943 $3,510,253 Early Customer Rev. Growth % - 20% Mature Customers 14 21 Growth in Mature Customers % - 50% Rev. / Mature Customer $302,618 $384,530 Rev. / Mature Customer Growth % - 27% Total Mature Customer Revenue $4,236,646 $8,075,137 Total Revenue $7,169,589 $11,585,391 Growth in Total Rev. % - 62% % of Rev. Early Customers 41% 30% % of Rev. Mature Customers 59% 70% Assumptions Source: Company provided materials. Figures represent FORT's standalone financials, not the pro-forma combined entity Note: Illustrative trends shown herein are subject to customer adoption timing, deployment schedules, macroeconomic conditions, and other uncertainties. Management believes future growth may reflect certain historical trends, although historical performance may not be indicative of future results. 2024 growth rates not presented as the Company does not have 2023 audited financial statements (1) Total annual revenue spent with FORT rounded to the nearest $1,000 for category classifications 21
• Units Shipped Machines Shipped: Illustrative volume schedule of a scaled OEM customer Handsets Shipped: Begins at a 1:1 ratio to machines shipped, with ratio decreasing by 40% p.a. • Hardware Revenue Onboard: Price begins at $1,250 per machine shipped, decreasing by 25% p.a. Handsets: Price begins at $2,500 per handset shipped, decreasing by $100 p.a. • Software Revenue Embedded Software: Customers adopt over time (starting in Year 2), price begins at $400 per machine shipped, increasing by 10% p.a. Base Subscription: Price begins at $100 per net installed base unit, decreasing by 15% p.a. Premium Subscriptions: Price begins at $550 per net installed machine (adoption begins in Year 2), decreasing by 15% p.a. • Pro Services Revenue Ancillary Services: Begins as 12% of Total Revenue, decreasing by 2% p.a. Illustrative Case Study: Evolution of Scaled OEM Customer Source: Company provided illustrative materials Note: Scenario is hypothetical, illustrative only, and not based on an actual customer deployment, forecast, or contracted arrangement. Illustrative scenario shown is intended to represent a mature, large enterprise FORT customer Metric Year 1 Year 2 Year 3 Year 4 Year 5 Units Shipped Machines Shipped 200 1,000 4,000 8,000 16,000 Handsets Shipped 200 600 1,440 1,728 2,074 Machines & Handsets Retired p.a. 5% 5% 5% 5% 5% Cumulative Net Installed Base 380 1,881 6,955 15,849 32,226 Hardware Revenue Onboard $250,000 $937,500 $2,812,500 $4,218,750 $6,328,125 Handsets 500,000 1,440,000 3,312,000 3,801,600 4,354,560 Total Hardware Revenue $750,000 $2,377,500 $6,124,500 $8,020,350 $10,682,685 Software Revenue Embedded Software $ - $400,000 $1,760,000 $3,872,000 $8,518,400 Base Subscription 38,000 159,885 502,495 973,315 1,682,232 Premium Subscriptions - 1,034,550 3,251,439 6,297,918 10,885,031 Total Software Revenue $38,000 $1,594,435 $5,513,934 $11,143,232 $21,085,663 Pro Services Revenue $107,455 $441,326 $1,012,038 $1,223,207 $1,323,681 Total Annual Revenue $895,455 $4,413,261 $12,650,472 $20,386,790 $33,092,029 1 2 4 3 1 2 4 3 22
Cost Framework • Gross margins, on a relative basis, may largely remain consistent in the near-term within the range of 65–70% • Over the long-term, gross margins may expand due to economies of scale and software becoming a key portion of the overall revenue mix • There may be a near-term increase in: research & development due to new products, sales & marketing due to a larger salesforce, and general & administrative due to additional public company costs. These costs may scale in-line with revenue growth • Over the long-term, operating margins could improve if the company achieves anticipated scale efficiencies, ramp ups in revenue, and greater revenue per customer Metric 2024A 2025A Total Revenue $7,169,589 $11,585,391 Growth in Total Rev. % - 62% Cost of Goods Sold (2,115,980) (3,911,402) Gross Margin $5,053,609 $7,673,989 Gross Margin % 70% 66% Operating Expenses ($10,340,047) ($12,266,126) Research & Development 5,122,708 6,264,916 Sales & Marketing 2,084,394 2,440,717 General & Administrative 3,132,945 3,560,493 Operating Expenses as a % of Rev. 144% 106% Operating Gain / (Loss) ($5,286,438) ($4,592,137) Operating Margin % NM NM 1 2 1 2 Assumptions Source: Company provided materials. Figures represent FORT's standalone financials, not the pro-forma combined entity Note: Management believes future trends may reflect certain historical trends, although historical performance may not be indicative of future results. 2024 growth rates not presented as the Company does not have 2023 audited financials statements 23
24 R&D Acceleration Software platform buildout, AI/ML safety features, next-gen hardware Strategic M&A Tuck-in acquisitions to expand technology stack and customer base Go-to-Market Expand sales team, build channel partnerships, international growth Working Capital High inventory turns, outsourced manufacturing, low cash requirements Capital Deployment Philosophy • Prioritize investments that accelerate the platform flywheel and compound competitive moats • M&A targets identified with clear technology and customer synergies • Strong gross margin profile (+65% in 2024 and 2025) • Disciplined cost structure with demonstrated capital efficiency Source: Company provided materials. Multiple Growth Strategies FINANCIAL PROFILE:
Strategic Tech Onboard active safety sensing, remote teleoperation product with safe video and control streaming over 3rd party networks Customer Relevance Ability to integrate with FORT's existing customer base, with opportunities to upsell Team 3 PhDs in robotics with experience in safety enhances FORT's experience with more full system knowhow Roadmap Existing tech and team available to execute on existing partnerships ✓VC-backed startups with limited cash burn ✓Profitable SMB software companies needing a physical AI strategy ✓System integrators with in-house IP, relevant know-how, and strategic customers ✓European/Israeli startups with strong traction but limited access to growth capital & dynamic markets ✓Blended consideration of cash and stock ✓Earnout incentives to ensure alignment ✓Pre-determined integration and cash management framework ✓Balance strategic goals with optimizing ROIC for investors Goals of M&A Target Profile Execution Tactics Full-stack, safety-first teleoperation platform enabling scalable remote vehicle operations ✓Secure strategic tech to develop scale ✓Increase wallet share at existing OEM customers ✓Develop greater pathways for FORT into the machine ✓Extend to end-user customers and into new geographies FORT's Differentiated M&A Strategy 25
26 Strategic Value Proposition Investment Highlights provides the foundation of trust required to unlock the potential of horizontal Physical AI, levered to the growth of robotics Advancing Functional Safety: We believe safety is non-negotiable within Physical AI, but legacy safety systems and a dearth of new standards are bottlenecking growth of the industry Creating a Category within an Industrial Revolution: FORT is building an independent safety platform adopted across OEMs, End Users, and AI models Pioneering this Market with 600+ Customers: FORT is driving global adoption with a leading customer base across all key Physical AI verticals, a validation of FORT's strategic advantage Providing a Moat via SIL 3 Certification & Patented Distributed Control: Market position underpinned by intellectual property and third-party certification Accelerating Growth with a Scalable Platform: FORT's safety solutions and headstart provide the launch pad for growth Executing with a Tenured Management Team: Pioneers in robotics and safety with a history of scaled execution and global recognition Delivering a Capital Light Business Model: Capital efficient growth platform with +65% gross margins in 2024 and 2025
27 As Physical AI Reaches an Inflection Point, Safety is Required MARKET OPPORTUNITY: ENABLED-LAYER PRECEDENTS & IMPLIED UPSIDE Source: Pitchbook, Company filings and press releases, Broker research, and S&P Capital IQ. (1) Represents market cap a % of the Global E-Commerce Market (Forbes April 2026). (2) Represents market cap as a % of the Infrastructure and Vertical Application Software Market (Benchmark Equity Research). (3) Represents market cap as a % of the US Manufacturing Capex Spend. (4) Represents market cap as a % of 2025 Pharma R&D Spending (Jefferies Equity Research). Physical AI platforms cannot achieve enterprise or regulated deployment without certified functional safety. FORT's stack is built for heterogenous robot fleets and certified to IEC 61508 SIL 3. Safety is a toll road – not optional spend LEADERS ENABLING LAYER % of TOTAL ECOSYSTEM Payments Cloud Security Industrial Safety & Inspection Global E-commerce Infrastructure & Vertical Application Software Industrial Manufacturing Clinical Research Medical & Pharma KEY DRIVER Trust infrastructure, payment toll road AI adoption super cycle, maintaining uptime in complex data environments Tightened environmental and workplace compliance Increased complexity of drug development ~14%(1) ~11%(2) ~16%(3) ~13%(4) Based on other emerging industries, Horizontal Safety Infrastructure could command a sizable portion of the Physical AI market Physical AI cannot operate at scale without certified safety – FORT remains positioned to capture part of the ecosystem as it continues to scale Mastercard Visa Datadog Dynatrace SGS Tetra Tech Honeywell Bureau Veritas Charles River Laboratories IQVIA
28 $60T $20T $40T $0T $60T PHYSICAL EMBODIMENT OF AI(1) $50T PHYSICAL AI(2) $7T by 2050 HUMANOID ROBOTICS(3) The Ultimate Proxy for Labor: Represents the total physical embodiment of AI as it is expected to scale to touch nearly every facet of global GDP and the future of human activity Industrial Transformation at Scale: An expected transformation of markets like manufacturing, logistics, and healthcare powered by AI-driven automation and next-gen robotics platforms Mass Unit Deployment: Forecasts indicate a global fleet of 648 million units(3) leading an industrial-first revolution before expanding into the high-volume consumer household sector Convergence of AI & Hardware: Driven by "embodied AI" and advanced foundation models Sources: (1) Morgan Stanley: The Humanoid 100: Mapping the Humanoid Robot Value Chain (February 2025). (2) Nvidia: GTC 2025 (March 2025). (3) Citi: The Rise of AI Robots (December 2024). Physical AI Is a Large and Expanding Global Market MARKET OPPORTUNITY:
FORT Peer Analysis Source: Company provided materials, publicly available information, FactSet as of 8/14/26 Note: FORT peer universe represents select comparable companies operating as robotics and physical AI providers with CY2025A Revenue less than $100M. Comparable company metrics are provided for illustrative informational purposes only and are not intended to imply that the Combined Company will achieve similar valuation multiples or operating performance (1) Defined as CY25 net cash flows used in operating activities (2) Represents full-time employees as of respective latest fiscal year end $12 $51 $23 $18 $5 $3 ($ in M, unless otherwise noted) ($6) ($115) ($80) ($39) ($12) ($7) CY2025A REVENUE 62% 99% 46% 12% (32%) CY2025A ANNUAL CASH BURN(1) CY2024–CY2025A REVENUE GROWTH RATE 605% CY2025A REVENUE PER EMPLOYEE (IN THOUSANDS OF $) $297 $111 $99 $90 $76 $7 39 459 234 55 239 370 Number of Full-Time Employees(2) AEVA SERVE ROBOTICS ONDAS DOOSAN ROBOTICS RICHTECH ROBOTICS AEVA SERVE ROBOTICS ONDAS DOOSAN ROBOTICS RICHTECH ROBOTICS AEVA SERVE ROBOTICS ONDAS DOOSAN ROBOTICS RICHTECH ROBOTICS AEVA SERVE ROBOTICS ONDAS DOOSAN ROBOTICS RICHTECH ROBOTICS 29
FORT Peer Analysis (Cont'd) Source: Company provided materials, publicly available information, FactSet as of 8/14/26 Note: FORT peer universe represents select comparable companies operating as robotics and physical AI providers with CY2025A Revenue less than $100M. TEV (Total Enterprise Value) represented on a fully diluted basis. FORT TEV represented as pro forma TEV of $556.6M assuming $15.8M of PIPE investment and $15.5M of NRAs. NM implies negative multiple 48x 150x 100x 86x 83x 9x 73x 345x 27x 0x 0x 0x TEV / CY2025A REVENUE TEV / CY2025A GROSS PROFIT NM NM NM Peer Median: 186x Peer Median: 86x AEVA SERVE ROBOTICS ONDAS DOOSAN ROBOTICS RICHTECH ROBOTICS AEVA SERVE ROBOTICS ONDAS DOOSAN ROBOTICS RICHTECH ROBOTICS 30
Pro Forma Capitalization ($ in M) FORT Rollover Equity $500.0 Cash to Balance Sheet 181.8 Estimated Transaction Costs(7) 19.0 Total Uses $700.8 Pro Forma Ownership 21.3% 5.9% 5.4% 67.3% Newbury II Public Shareholders PIPE / NRA Shareholders Newbury II Sponsor Existing FORT Shareholders Transaction Overview Note: Figures shown in millions, except per share amounts; All charts and tables exclude 8.6M Newbury II public warrants and 0.3M private placement warrants; All warrants have a strike price of $11.50 per common share. (1) PIPE/NRA investors to receive 1.4M incentive shares at closing, consisting of 0.4M newly issued shares and 1.0M transferred founder shares. (2) Newbury II sponsor shares and FORT shareholders lock-up eligible for early release if the common shares trade at or above $12.00/share for 20 of 30 trading days beginning 150-days post-closing, excluding 0.1M founder shares to be released upon closing. Certain FORT shareholders will be subject to these restrictions pursuant to lock-up agreements entered into in connection with the transaction, while the remaining FORT shareholders will be subject to lock-up restrictions pursuant to the bylaws of the post-closing combined company. Existing FORT SAFE holders will not be subject to lock-up restrictions. (3) Rollover of existing Net Cash of $4.0M as of 3/31/2026 and cash proceeds of $181.8M to the balance sheet from the transaction. (4) Excludes proceeds subject to non-redemption agreements at time of announcement, trust balance as of 6/30/2026. May not be indicative of final redemption levels. (5) Includes 3.3M founder shares, 0.6M private units and 0.1M representative shares; Excludes 1.1M founder shares to be forfeited for no additional consideration by the Sponsor at close, 1.0M founder shares being transferred to PIPE/NRA investors and 0.8M founder shares subject to a contingent earnout. (6) Includes 3.0M PIPE/NRA shares, 0.4M newly issued shares and 1.0M transferred founder shares. (7) Consists of deferred underwriting fees, M&A advisory fees, PIPE fees, legal fees and other transaction fees and expenses. Sources ($ in M) Uses ($ in M) Key Highlights: Pre-Money Equity Value of $500.0M Transaction supported by approximately $31M(1) of incremental financing via a common stock PIPE and non-redemption agreements from new and existing investors and Newbury Sponsor at the transaction value No cash to FORT shareholders – will roll 100% of existing shares Existing FORT shareholders and holders of Newbury II sponsor shares will be subject to lock-up restrictions for a period of one year following the closing of the Business Combination(2) Transaction proceeds to be used to accelerate FORT Robotics' next phase of growth (5) Illustrative Share Price $10.00 Pro-Forma Shares Outstanding (M) 74.2 Pro-Forma Equity Value $742.4 Pro-Forma Net Debt / (Cash) ($185.8)(3) Pro-Forma Enterprise Value $556.6 FORT Rollover Equity $500.0 Newbury II Cash in Trust(4) 169.6 PIPE/NRA Proceeds 31.3 Total Sources $700.8 Pro Forma Ownership at Close Shares (M) % Ownership Existing FORT Shareholders 50.0 67.3% Newbury II Public Shareholders 15.8 21.3% Newbury II Sponsor(5) 4.0 5.4% PIPE/NRA Shareholders(6) 4.4 5.9% Pro Forma Shares Outstanding 74.2 100.0% 31
Appendix
33 HARDWARE EDGE SAFETY & CONTROL SOFTWARE MANAGEMENT PLANE EXTENSIBILITY ECOSYSTEM & INTEGRATIONS Maintains deterministic behavior even when autonomy is uncertain Defines and deploys safety posture: policies, zones, modes, and permissions EMBEDDED INTO THE ROBOT • Interfaces with robot I/O and safety circuits — where authority is executed • Enforcement via embedded controllers, soft PLC, handhelds, and wearables • Manages device lifecycle — provisioning, configuration, and updates • Produces the evidence: logs and telemetry needed for trust, ops, and compliance Hooks into fleet managers, autonomy stacks, tele-op tools, & incident management systems • Exposes APIs and events for workflows: safe-state changes, incidents, exceptions • Supports offline and online operation patterns depending on environment constraints CONFIGURE – GOVERN - AUDIT FITS INTO CUSTOMERS STACK WHAT WE DO: The FORT Platform FORT delivers independent safety & control by combining certified edge enforcement with fleet level configuration and telemetry, integrated into customer workflows and autonomy stacks
FORT Fabric expands FORT's distributed control platform to enable trust in the world of tightly-integrated, AI-driven robots • AI-native trust built from the ground up to support the rapid deployment of Physical AI systems while maintaining trust • Scalable Safety Infrastructure that connects within the robot, between robots, and to the worksite • Dynamic Behavior is enabled through predictable, testable, rule-based enforcement of policies • Context-Awareness creates a balance between the need to maintain safe operation and nuance that exists in the real world • Single Root of Trust for the worksites to manage the future with multi-OEM, heterogeneous robot deployments • High-fidelity safety telemetry and control lineage to continuously refine AI-driven risk models FORT FABRIC - Safety + Security Core Rules & Policy Enforcement Soft PLC Distributed Data Black Box Physical AI Models AI Guardrails OTA Configuration & Management Third-party Software Critical Data Streams Perception Algorithms FORT FABRIC FORT & Third-Party Apps Safety Manager Virtual Safety Node Virtual Black Box Risk Modeling Engine Safety Analytics FORT TRUST FABRIC FORT Hardware Safety Node Remote Safety Node Third-party Hardware Safety Node 34 FORT FABRIC as a Future Safety Layer for Physical AI DISTRIBUTED CONTROL:
Roadmap investments are a building block toward FORT FABRIC — a trust layer for Physical AI at scale 35 AI Co-Pilot AI-assisted rule authoring, review, and certification evidence Soft Safety PLC Software-defined safety logic executed at the edge Telemetry Enablement Data capture from safety nodes Outside-In Safety + Safety Analytics Environment-aware safety and fleet performance trends OTA Configuration Remote configuration updates across the fleet Building Now (2026 Roadmap) AI Guardrails + Risk Modeling Engine Runtime AI governance and continuous risk assessment Virtual Safety Node Distributed, virtualized safety enforcement across agents Virtual Black Box + Distributed Data Black Box Tamper-evident, fleet-wide safety lineage and forensics Context-Aware Risk Models Behavior enforcement based on real-world conditions OTA Configuration & Mgmt (FABRIC) Policy-governed, safety-rated remote management at scale Enables in FORT FABRIC How Today's Roadmap Becomes Tomorrow's Trust Layer FROM PLATFORM TO FABRIC:
36 DEFENSE WAREHOUSING OUTDOOR Local: Safe operation and intervention devices empower people to work alongside machines with confidence and peace of mind Site: Scalable hardware and software to manage mixed fleets and deliver site-wide safety commands across multiple machines Global: Cloud tools for safe operation and intervention anywhere, over any network Trusted Control in Action DIVERSIFIED MARKET CAPTURE:
37 DEFENSE Wearable Protection: Equip workers with wearable E-Stops for personal protection military ground systems Onsite safety command: Send safety commands (stop, crawl, etc.) to robots, vehicles, or boats from a central in-field location Offsite safety command: Send safety commands robots, vehicles, or boats from offsite via IP networks Remote control of ground systems: Operate large or dangerous machinery from a safe location Remote docking for autonomous boats: Use remote control to maneuver autonomous boats in and out of high-traffic docking areas Leader/Follower Formations: Send commands from a lead "chaperone" vehicle or boat to all following systems Offsite operation: Operate remotely from a land station or central command with wireless or tethered remote control Industry Use Cases
38 OUTDOOR Remote Loading/Delivery of Autonomous Systems: Use remote control to move autonomous machinery between fields or on/off of trucks Personal protection in-field: Wearable safety devices allow workers to stop dangerous machinery (manned or unmanned) in unsafe situations Onsite safety command: Send safety commands (stop, crawl, etc.) to a single machine or mixed group of machines from an onsite truck or field station Offsite safety command: Send safety commands to multiple machines from an offsite location via IP networks High-risk area protection: Send automatic safety commands to all machines in a designated area Remote control of mobile machinery: Operate tractors, weeders or other dangerous machinery from a safe distance Industry Use Cases
39 WAREHOUSING Industry Use Cases Wearable Protection: Equip workers with wearable E-Stops for personal protection around AMRs, forklifts, and other mobile machines Onsite safety command: Send safety commands (stop, crawl, etc.) to a single machine or mixed group of machines from an onsite location Offsite safety command: Send safety commands to multiple machines from off site via IP networks Emergency protocols: Send automatic safety commands to all machines in a designated area in response to a trigger such as a fire alarm High-risk area protection: Send automatic safety commands to all machines in a designated area when a person enters Remote control of mobile machinery: Operate large or dangerous machinery from a safe distance As-needed remote control of autonomous machines: Take temporary control autonomous systems for maintenance, teaching, or to navigate unexpected scenarios Category 1 (Delayed) E-Stopping: Issue delayed stop commands for machines that cannot be powered off instantly (i.e., a humanoid robot should sit down before powering down)
Omni-Channel Acquisition: Diversifying from a high-intent inbound model to a proactive engine that includes outbound sales motions and frictionless self-service onboarding Channel Ecosystem: Multiplying market reach through strategic partnerships with robotics integrators, industrial maintenance firms, and safety consultants Global Capture: Executing international expansion to achieve first-mover advantages in key European and Asia-Pacific industrial hubs 40 Scaling FORT's market presence through new channels, partner ecosystems, and global expansion to accelerate adoption across the industrial landscape Our Planned Platform Expansion & Ecosystem Entrenchment SCALABLE PLATFORM:
41 Source: Company provided materials. (1) As of December 31, 2025. (2) S&M Efficiency represents Sales and Marketing spend / Bookings for the period. (3) Bookings can vary significantly quarter to quarter depending in part on the timing of the signing of large contracts. Information regarding FORT's bookings is not comparable to, nor should it be substituted for, an analysis of FORT's revenues over time. Bookings involve estimates and judgments. There are no third-party standards or requirements governing the calculation of bookings. Revenue Model Evolution FINANCIAL PROFILE: ▲62% YoY S&M Efficiency: 17% of Bookings(1)(2) Bookings/Head: $369K (39 FTEs)(1) Net Loss Narrowing: –$4.6M (▲16% vs 2024) $11. 2025 Revenue 2025 2024 $0.0M $5.0M $10.0M $15.0M $14.4M $11.6M $11.7M $7.2M Bookings Revenue *In 2024 & 2025, Q1' bookings accounted for ~10% of total annual bookings $3.5M Q1'26 Bookings(3) (120 new customers In 2025) 00+ Cumulative Customers(1) ▲80% YoY 27 $100K+ Bookings Customers(1)
$'000s, Audited 2024 2025 Assets Current Assets Cash & Cash Equivalents $4,809 $5,695 Accounts Receivable, Net 1,193 2,771 Other current assets 1,643 1,995 Total Current Assets $7,645 $10,461 Property & Equipment, Net 323 236 Other Assets 1,573 1,458 Total Assets $9,541 $12,155 Liabilities Current Liabilities Current Portion of Long-Term Debt $1,400 $118 Other Current Liabilities 5,915 2,024 Long-Term Liabilities 2,499 2,165 Total Liabilities $9,814 $4,307 Total Shareholders' (Deficit) Equity ($273) $7,848 Total Liabilities and Shareholders' Equity $9,541 $12,155 Select Balance Sheet & Income Statement Information* Source: Company provided materials. *Note, Balance Sheet and Income Statement figures represent FORT's standalone financials, not the pro-forma combined entity. $'000s, Audited 2024 2025 Total Revenue $7,170 $11,585 Gross Profit $5,054 $7,674 Gross Margin 70.5% 66.2% Research & Development $5,123 $6,265 Sales & Marketing 2,084 2,441 General & Administrative 3,133 3,560 Operating Expenses $10,340 $12,266 Operating (Loss) Income ($5,286) ($4,592) Net (Loss) Income ($5,496) ($4,596) 42
43 A Decade-Long Headstart Founding team created the predecessor to FORT, Humanistic Robotics ("HRI"), one of the early robotics partners of the US military. HRI's landmine & Improvised Explosive Device (IED) clearance products were deployed globally and at scale FORT Robotics was founded with acquisition of Humanistic Robotics' safety system. FORT has since expanded HRI's safety system into the leading distributed control platform for mobile, autonomous machines in shared human spaces Each competing team in the globally-recognized DARPA Robotics Challenge was required to use Humanistic Robotics' Wireless Emergency Stop, creating significant brand and technology awareness and introducing an innovative expansion roadmap FORT Robotics offers safety solutions for over 600+ customers, accounting for 19,500+ deployed units. With distributed control technology, third-party safety certifications, and horizontal adoption, FORT has established a growing presence as a safety platform for robots and physical AI systems around the world 2012 DARPA 2018 TODAY 43
Legacy safety is isolated to the machine, but the inputs that determine Physical AI safety are distributed – across the machine, worksite, remote operations, and the cloud With distributed control in place, we believe FORT becomes the universal hub where high-value ecosystem services can be plugged in without rebuilding the stack –including AI intelligence, safety data, developer tools, cybersecurity, and usage-based insurance FORT's distributed control acts as a neural bridge, providing a unified way to command and control machines across disparate control networks and wireless protocols (PAN/LAN/WAN). This creates one certifiable, deterministic safety standard FORT's certified distributed control platform has been deployed across 600+ of the companies that matter, establishing the industry standard 44 SITE SENSORS ACCESS CONTROL ADDITIONAL EQUIPMENT LAN (local) <1KM RANGE WAN (wide) GLOBAL REACH OFFSITE CONTROL ROOM EDGE AUTONOMY ON-PREMISIS INTELLIGENCE CLOUD INTELLIGENCE WORKERS & WEARABLES PAN (personal) <10M RANGE FORT is a Foundation of Physical AI Safety DISTRIBUTED CONTROL:
45 Risk Factors Risks Related to FORT's Business and Industry • FORT has incurred significant operating losses since inception and it cannot assure you that it will ever achieve or sustain profitability. • FORT has a limited operating history, and its recent growth may not be indicative of its future growth, and FORT may not be able to sustain its revenue growth rate in the future. • Failure to manage FORT's planned growth could place a significant strain on its resources. • FORT may be unsuccessful in achieving its organic growth strategies, which could limit its revenue growth or financial performance. • The market for FORT's platform, products and services is relatively new and rapidly evolving, with uncertain growth expectations which may adversely affect FORT's future results and the trading price of its common stock. • Real or perceived design flaws, errors, defects, glitches, bugs or malfunctions in FORT's platform, products and services, failure of FORT's platform or products to perform as expected, connectivity issues or user errors can result in lower than expected return on investment for customers, personal injury or property damage and significant security or safety concerns, and FORT's warranty obligations may result in unanticipated costs, each of which could materially and adversely affect FORT's results of operations, financial condition or reputation. • Even if FORT's platform and products perform properly and its platform and products are used as intended, if personal injuries occur while operating FORT's platform, products or third-party systems or products that incorporate FORT's platform and products, FORT could be exposed to liability and FORT's results of operations, financial condition and reputation may be adversely affected. • FORT does not control certain aspects of the manufacturing process and if critical components or raw materials used to manufacture FORT's products become scarce or unavailable, then FORT may incur delays in manufacturing and delivery of FORT's products and in completing FORT's development programs, which could damage FORT's business. • Material delays or defaults in customer payments could leave FORT unable to cover expenditures, including the payment of FORT's suppliers and contractors. • Certain of FORT's officers, employees, contractors and other service providers may work in environments that involve inherent risks, and a failure to maintain a safe work environment could result in significant losses. • FORT's products are subject to a lengthy sales cycle and FORT's customers may cancel or change their product plans after FORT has expended substantial time and resources in the design of their products. • FORT's platform, products and services have only been developed in the last several years and FORT has had only limited opportunities to deploy and assess their performance in the field at full scale. • If FORT fails to respond to evolving technological changes and artificial intelligence, FORT's platform, products and services could become obsolete or less competitive. • FORT expects to continue to incur substantial R&D costs and devote significant resources to identifying and commercializing new products, which could significantly increase FORT's losses and may never result in revenue. • If FORT's platform and products do not interoperate with FORT's customers' other systems, the purchase or use of FORT's platform, products and services may be delayed or cancelled. • FORT operates in a competitive market, which may adversely affect its business, financial condition and results of operations. • The implementation of AI and machine learning technologies in FORT's products may result in reputational harm, liability, increased expenditures, or other adverse consequences to FORT's business operations. • Cyberattacks through security vulnerabilities could lead to disruption of business, reduced revenue, increased costs, liability claims, or harm to FORT's reputation or competitive position. • FORT faces uncertainty and adverse changes in the economy. • FORT currently does not have long-term supply contracts with guaranteed pricing, which exposes FORT to fluctuations in component, materials and equipment prices. Substantial increases in these prices would increase FORT's operating costs and could adversely affect FORT's business, prospects, financial condition and operating results. • If the estimates and assumptions FORT has used to calculate the size of FORT's addressable market opportunity are inaccurate, FORT's future growth rate may be limited. • FORT may engage in merger and acquisition activities and joint ventures, which could require significant management attention, disrupt FORT's business, dilute stockholder value, and adversely affect FORT's operating results. • If FORT fails to develop and maintain widespread positive awareness of FORT's brand, FORT's business may suffer. • FORT relies on FORT's management team and other key team members and will need additional personnel to grow FORT's business, and the loss of one or more key team members or FORT's inability to hire, integrate, train and retain qualified personnel, could harm FORT's business. • FORT will be affected by operational risks and may not be adequately insured for certain risks. • Key business metrics and other estimates are subject to inherent challenges in measurement and to change as FORT's business evolves, and FORT's business, operating results, and financial condition could be adversely affected by real or perceived inaccuracies in those metrics or any changes in metrics FORT discloses. • FORT is subject to legal and regulatory proceedings and commercial or contractual disputes from time to time, which could have an adverse effect on FORT's profitability and financial position. • FORT is subject to, and must remain in compliance with, numerous laws and governmental regulations across various jurisdictions concerning the manufacturing, use, distribution and sale of FORT's products. • FORT is subject to various environmental laws and regulations that could impose substantial costs. • FORT is subject to U.S. and foreign anti-corruption and anti-money laundering laws and regulations. FORT can face criminal liability and other serious consequences for violations, which can harm FORT's business. • Failures, or perceived failures, to comply with privacy, data protection, and information security requirements in the variety of jurisdictions in which FORT operates may adversely impact FORT's business. Such legal requirements are evolving, uncertain and may require improvements in, or changes to, FORT's policies and operations. • If FORT's products do not comply with certain third party industry, safety and regulatory standards, FORT's business could be adversely affected. Risks Related to FORT's Intellectual Property • FORT's ability to protect FORT's intellectual property and proprietary technology is uncertain. • FORT's business may suffer if it is alleged or found that FORT's products infringe the intellectual property rights of others. • If FORT is unable to protect the confidentiality of FORT's proprietary information, the value of FORT's technology and products could be adversely affected. • FORT uses open-source software in FORT's products and services that may subject FORT's products and services to general release or require FORT to re-engineer FORT's products and services, which may cause harm to FORT's business. • Intellectual property rights do not necessarily address all potential threats to FORT's competitive advantage. • If FORT is unable to obtain and maintain patent protection for its products and technology, or if the scope of the patent protection obtained is not sufficiently broad or robust, its competitors could develop and commercialize products and technology similar or identical to FORT's, and FORT's ability to successfully commercialize its products and technology may be adversely affected. Moreover, FORT's trade secrets could be compromised, which could cause it to lose the competitive advantage resulting from these trade secrets. • Our patent applications may not result in issued patents or our patent rights may be contested, circumvented, invalidated or limited in scope, any of which could have a material adverse effect on our competitive position. • We may face patent infringement and other intellectual property claims that could be costly to defend, result in injunctions and significant damage awards or other costs (including indemnification of third parties or costly licensing arrangements (if licenses are available at all)) and limit our ability to use certain key technologies in the future or require development of non-infringing products, services, or technologies, which could result in a significant expenditure and otherwise harm our business.
46 Risk Factors (Cont.) Risks Related to FORT's Financial Results • FORT will need to generate significant sales to achieve profitable operations. • FORT's future profitability may be dependent upon achieving cost reductions and projected economies of scale from increasing manufacturing quantities of FORT's products. Failing to achieve such reductions in manufacturing costs and projected economies of scale could materially adversely affect FORT's business. • If business growth falls short of expectations, FORT may need to obtain additional capital to fund FORT's growth, operations, and obligations. • FORT's revenue is not predictable and recognition of a significant portion of it will be deferred into future periods. • If FORT's internal controls over financial reporting or FORT's disclosure controls and procedures are not effective, FORT may not be able to accurately report FORT's financial results, prevent fraud or file FORT's periodic reports in a timely manner, which may cause investors to lose confidence in FORT's reported financial information and may lead to a decline in FORT's stock price. • FORT's ability to use net operating loss carryforwards and certain other tax attributes may be limited. Additional Risks Related to Ownership of the Post-Closing Company's Common Stock Following the Business Combination and the Post-Closing Company Operating as a Public Company • An active market for the Post-Closing Company's securities may not develop, which may adversely affect the liquidity and price of its securities. • The market price of shares of the Post-Closing Company's common stock may be volatile, which could cause the value of your investment to decline and may be less than the redemption price paid by public shareholders in connection with the business combination. • If the Post-Closing Company's operating and financial performance in any given period does not meet the guidance provided to the public or the expectations of investment analysts, the market price of the Post-Closing Company's common stock may decline. • FORT's financial results may vary significantly from period to period due to fluctuations in FORT's operating costs, product demand and other factors. • Short sellers may engage in manipulative activity intended to drive down the market price of the Post-Closing Company's common stock, which could also result in related regulatory and governmental scrutiny, among other effects. • If securities or industry analysts do not publish research or reports about the Post-Closing Company's business or publish negative reports about its business, the Post-Closing Company's share price and trading volume could decline. • The Post-Closing Company does not intend to pay cash dividends for the foreseeable future. • Following the business combination, the Post-Closing Company is expected to be an emerging growth company and a smaller reporting company within the meaning of the Securities Act, and to the extent the Post-Closing Company takes advantage of certain exemptions from disclosure requirements available to emerging growth companies or smaller reporting companies, this could make the Post-Closing Company's securities less attractive to investors and may make it more difficult to compare the Post-Closing Company's performance with other public companies. • If a significant number of NTWO Class A Ordinary Shares are tendered for redemption in connection with the business combination, the stock ownership of the Post-Closing Company will be highly concentrated, which will reduce the public "float" and may have a depressive effect on the market price of the common stock of the Post-Closing Company. • There is no guarantee that a decision not to tender their NTWO Class A Ordinary Shares for redemption by any NTWO public shareholders will put such shareholders in a better future economic position and such shareholders will experience immediate dilution as a result of the issuance of Post-Closing Company common stock as consideration in connection with the business combination, as well as from the PIPE Investment. • Following the Closing, Post-Closing Company warrants will become exercisable for Post-Closing Company common stock, which will increase the number of shares eligible for future resale in the public market and result in dilution to Post-Closing Company shareholders. • Subsequent to the consummation of the business combination, the Post-Closing Company may issue additional shares of common stock, which may increase the number of shares eligible for future resale in the public market and result in dilution to its stockholders. • Market values of growth-oriented companies like FORT, particularly companies that entered into business combination agreements with SPACs, have at times been affected by adverse economic and market forces which may induce downward pressure on the price and trading volume of the Post-Closing Company common stock. • FORT and NTWO will incur significant transaction costs, which could be higher than currently anticipated, and these transaction costs add risk to the Post-Closing Company's ability to be a going concern and/or act on the Post-Closing Company's business plan. • The officers and directors of NTWO or FORT may resign upon completion of the business combination, and the loss of key personnel could negatively impact the operations and profitability of the Post-Closing Company. • Subsequent to the completion of the business combination, the Post-Closing Company may be required to take write-downs, write-offs, restructuring, impairment or other charges that could have a significant negative effect on its financial condition, results of operations and stock price. • The Post-Closing Company's structure following the business combination may be less tax-efficient to stockholders and warrant holders than anticipated, and the Post-Closing Company's tax obligations may be more complex, burdensome and/or uncertain. General Risk Factors • FORT's employees and independent contractors may engage in misconduct or other improper activities, which could have an adverse effect on FORT's business, prospects, financial condition and operating results. • Investments in FORT may be subject to regulations governing direct and indirect foreign acquisitions of and investments in U.S. businesses. If applicable, such regulations may impose conditions or limitations on a foreign investor's ownership of and rights with respect to FORT (including, but not limited to, limits on an investor's total ownership interest in and/or information and governance rights with respect to FORT).
47 Risk Factors (Cont.) Risks Related to FORT's Organizational Structure Following the Business Combination • FORT has incurred and will continue to incur significant expenses and administrative burdens as a public company, which may adversely affect FORT's business, prospects, financial condition, and results of operations. • Provisions contained in the Proposed Certificate of Incorporation, the Proposed Bylaws and governing law of the jurisdiction of the Post-Closing Company could prevent a takeover that stockholders consider favorable and could also reduce the market price of the Post-Closing Company's stock. • Claims for indemnification by the Post-Closing Company's directors and officers may reduce the Post-Closing Company's available funds to satisfy successful third-party claims against the Post-Closing Company and may reduce the amount of money available to the Post-Closing Company. • Future resales of common stock may cause the market price of the Post-Closing Company's securities to drop significantly, even if the Post-Closing Company's business is doing well. • Future issuances of debt securities and equity or equity-linked securities may adversely affect the market price of the Post-Closing Company's common stock and may be dilutive to existing stockholders. • Nasdaq may not list the Post-Closing Company's securities on its exchange, and the Combined Company may not be able to comply with the continued listing standards of Nasdaq, which could limit investors' ability to make transactions in the Combined Company's securities and subject the Combined Company to additional trading restrictions. • FORT's business and operations could be negatively affected if FORT becomes subject to litigation, including any securities litigation or stockholder activism, which could cause FORT to incur significant expense, hinder execution of business and growth strategy and impact FORT's stock price. • Securities of companies formed through mergers such as the business combination may experience a material decline in price relative to the share price of the NTWO Class A Ordinary Shares prior to the business combination. Risks Related to NTWO and the Business Combination • The consummation of the proposed business combination is subject to a number of conditions and, if those conditions are not satisfied or waived, the definitive agreements relating to the proposed business combination, including the Merger Agreement, may be terminated in accordance with such definitive agreement's terms and the proposed business combination may not be completed. • The ability of NTWO's shareholders to exercise redemption rights with respect to a large number of outstanding NTWO Class A Ordinary Shares may prevent NTWO from optimizing the business combination's capital structure. • Prior to or after the Closing, Nasdaq may delist NTWO Class A Ordinary Shares or Nasdaq may delist Post-Closing Company common stock, as applicable, from trading on its exchange, which could limit investors' ability to transact in NTWO's securities and subject NTWO to additional trading restrictions. • Upon the Closing, the rights of holders of Post-Closing Company common stock arising under the governing law of the jurisdiction of the Post-Closing Company will differ from and may be less favorable to the rights of holders of NTWO Ordinary Shares arising under the Companies Act. • There are risks to unaffiliated investors by taking FORT public through a merger rather than through an underwritten offering. • Subsequent to the completion of the business combination, the Post-Closing Company may be required to take write-downs or write-offs, restructuring and impairment or other charges that could have a significant negative effect on the Post-Closing Company's financial condition, results of operations and stock price, which could cause you to lose some or all of your investment. • A market for the Post-Closing Company's securities may not develop, which may adversely affect the liquidity and price of the Post-Closing Company's securities and may limit your ability to sell such securities. • If the business combination's benefits do not meet the expectations of investors, stockholders or financial analysts, the market price of the Post-Closing Company's securities may decline. • Regulatory delays could cause NTWO to be unable to consummate the business combination. • CFIUS or other regulatory agencies may modify, delay or prevent the business combination. • Following the consummation of the business combination, the Post-Closing Company's only significant asset will be its ownership interest in the FORT business, and such ownership may not be sufficiently profitable or valuable to enable the Post-Closing Company to satisfy the Post-Closing Company's other financial obligations. • Past performance by members of NTWO's management team or NTWO's strategic and operating partners may not be indicative of future performance of an investment in NTWO. • Delays in the government budget process or a government shutdown may materially adversely affect NTWO's and FORT's ability to complete the business combination, or the operations of the Post-Closing Company following the closing of the business combination. • If NTWO is deemed to be an investment company under the Investment Company Act, it may be required to institute burdensome compliance requirements and its activities may be restricted, which may make it difficult for it to complete NTWO's initial business combination. • The Post-Closing Company may be subject to a 1% U.S. federal excise tax in connection with redemptions of the Post-Closing Company common stock. • NTWO's Sponsor and NTWO's officers and directors have interests in the proposed business combination that are different from or are in addition to other NTWO shareholders in recommending that NTWO shareholders vote in favor of approval of the Proposed Business Combination. • The Post-Closing Company will need to raise additional capital to act on its business plan and such additional capital may not be available on acceptable terms, or at all, any inability to raise such additional capital adds risk to the Post-Closing Company's ability to be a going concern For additional risks relating to Newbury Street II Acquisition Corp (the "Newbury Street" or "NTWO") operations, see the section titled "Risk Factors" contained in (i) Newbury Street's Form S-1 Registration Statement, (ii) Annual Report on Form 10-K for the year ended December 31, 2025, filed with the U.S. Securities and Exchange Commission (the "SEC") on March 6, 2026, (iii) Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2025 and September 30, 2025, filed with the SEC on May 15, 2025 and November 14, 2025, respectively, and (iv) other filings with the SEC. As of the date of this presentation, there have been no material changes to such risk factors. Any of these previously disclosed risk factors could result in a significant or material adverse effect on our results of operations or financial condition. Additional risks not presently known to us or that we currently deem immaterial may also adversely affect our business, financial condition, results of operations or ability to consummate the proposed transaction. Newbury Street may disclose changes to such risk factors or additional risk factors from time to time in our future filings with the SEC.
Exhibit 99.2
FORT Robotics to Go Public via Business Combination with Newbury Street II Acquisition Corp to Advance the Safety of Physical AI
| ● | Creates the first publicly traded company dedicated principally to safe and scalable deployment of physical AI, as a universal safety layer across the robotics industry |
| ● | Broad adoption across more than 600 customers globally, including robotics developers, robotics users, universities and governments. Customers include Agility Robotics, DoorDash, Cobot, Zoox, Textron, and Google DeepMind |
| ● | Horizontal use across industries including humanoid robotics, warehousing, transportation, manufacturing, construction, agriculture, mining, energy, and defense |
| ● | Rapidly accelerating commercial adoption, with revenue increasing 62% YoY in 2025 |
| ● | Received signed commitments to raise over $31 million of common equity in the form of both PIPE (Private Investment in Public Equity) and NRA (Non Redemption Agreement) investments from new and existing institutional investors, including Tiger Global, Prologis Ventures, and Mark Cuban |
| ● | Strong partner network including the strategic collaboration recently announced with NVIDIA Halos for Robotics |
| ● | Entering this transaction and becoming a public company positions FORT to capitalize on the rapid adoption of robotics and physical AI by accelerating product innovation, global commercial reach, M&A and strategic partnerships |
| ● | Company to host a conference call at 8:30 a.m. ET today. Visit www.fortrobotics.com/investors for more information |
PHILADELPHIA, PA and BOSTON, MA., August 18, 2026 — FORT Robotics, Inc. (“FORT” or the “Company”), a safety platform developing The Trust layer for Physical AI, and Newbury Street II Acquisition Corp (Nasdaq: NTWO) (“Newbury Street II”), a special purpose acquisition company, today announced that they have entered into a definitive business combination agreement (the “Business Combination”) that will result in the combined company becoming a publicly traded company.
Upon closing of the Business Combination, the combined company will be named FORT Robotics Holdings, Inc. and is expected to be listed on the Nasdaq Stock Market (Nasdaq) under the new ticker symbol “FROB,” subject to regulatory approvals. The transaction values the combined company at a pro-forma enterprise value of $556.6 million (pre-money equity value of $500.0 million).
Building Trust in Physical AI
FORT Robotics was founded in 2018 and has since become a leading provider of safety solutions across the robotics industry, trusted by more than 600 customers including Agility Robotics, Google DeepMind, Cobot, Zoox, RIVR, Carnegie Robotics, Textron, Forterra, Genie, Ocado, Oxa, DoorDash and many others. The company is backed by investors including Tiger Global, Mark Cuban Companies, Prologis Ventures, and Five Eleven Partners and recently announced a strategic collaboration with NVIDIA as part of the Halos for Robotics ecosystem. The company grew out of founder and CEO Samuel Reeves’s previous company Humanistic Robotics, which built robots to clear landmines.
FORT’s leadership and board bring deep operating experience from across the robotics and industrial-automation landscape. The post-closing board of directors is expected to include Sally Miller, DHL Supply Chain Global CIO, Jennifer Vescio, former executive at Uber, Vijay Kumar, Dean of Engineering at the University of Pennsylvania, and Karl Iagnemma, CEO at Vecna Robotics
FORT’s Trust Layer serves as the foundational safety infrastructure for the next generation of physical AI, enabling autonomous machines from different manufacturers to operate safely alongside humans and within shared environments. The platform, which is backed by 25 patents and has been certified to meet Safety Integrity Level 3 per IEC 61508, is intentionally machine-and application-agnostic, designed to serve as a universal layer of trust across mixed-machine workspaces.
In May 2026, FORT expanded The Trust Layer through the acquisition of Mapless AI, a full-stack, safety-first teleoperation company, adding remote human-in-the-loop control and onboard active safety to FORT’s existing platform.
The Safety Imperative: Unlocking Potential for Robotics
“Physical AI will change the way we work in every industry, and this will be a game changer for workers, organizations and governments worldwide,” said Samuel Reeves, Founder and CEO of FORT Robotics. “However, these new machines come with a completely new and different risk profile, and that must be addressed before autonomous systems can scale. FORT’s mission is to ‘ensure robots cause no harm’ and we are dedicated to pioneering and building a shared framework for trust that robot manufacturers, integrators, end users, regulators, insurers, governments and any other interested party can rely on. How we trust physical AI will be one of the defining questions of our time and answering it will be a key enabler that will move these next generation machines from isolated pilot programs to real, scalable adoption.”
Thomas Bushey, CEO of Newbury Street II, added: “Newbury Street II is proud to partner with FORT, a category-defining platform addressing one of the world’s most complex infrastructure challenges. The robotics revolution is at an inflection point, and we believe FORT’s universal layer of trust can accelerate widespread adoption. We look forward to supporting Samuel and the team as they advance FORT’s horizontal platform for physical AI — as a public company, we believe FORT is well positioned to extend its leadership and create long-term shareholder value.”
Commenting on the commercial momentum of physical AI, Griffin Schroeder, Partner at Tiger Global, said: “As physical AI moves into core industrial infrastructure, safety is paramount. FORT has built a critical, machine-agnostic trust layer that enables enterprise autonomy to scale safely. We are excited to support Samuel and the FORT team as they build on their momentum and enter this next chapter.”
Key Financial & Operational Highlights
| ● | Strong Top-Line Momentum: FORT’s 2025 revenue compounded at a 62% year-over-year growth rate, including 91% growth among its mature enterprise accounts (customers spending more than $100,000 annually with FORT,) positioning FORT among the fastest-growing companies in the robotics safety category as the broader physical AI market scales. |
| ● | High-Margin, Capital-Efficient Profile: Maintained resilient standalone gross margins of 66% in 2025 and 70% in 2024, with long-term margin expansion expected as premium software solutions scale. While revenue grew 62% in 2025, operating expenses grew at a much lower 19%, demonstrating the operational leverage inherent in the business. 2025 revenue per employee was $276,000, further demonstrating FORT’s ability to generate momentum while managing costs. |
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| ● | De-Risked Customer Ecosystem: Broad diversification across major enterprise verticals has materially reduced single-customer risk, driven by a 3.8x total growth in six-figure customers since 2021 with no single customer representing more than 9% of 2025 revenue. |
| ● | Durable, Compounding Customer Base: Customer cohorts acquired as early as 2019 continue to generate revenue today, with pre-2025 cohorts contributing an estimated 68% of 2025 bookings. The platform is now deployed across more than 19,500 units globally, reflecting deep, sticky customer relationships and low churn central to the investment thesis. Cumulative customers have grown 2.6x and deployed units 3.7x since 2021, and the roughly two dozen mature enterprise accounts grew per-account spend by 27% year-over-year in 2025, reflective of a land-and-expand engine layered on top of the low-churn base. |
Transaction Overview
The Business Combination values the combined company at an implied pro forma enterprise value of $556.6 million. The transaction is expected to deliver approximately $201 million in gross transaction proceeds, consisting of cash held in Newbury Street II’s trust account (assuming no redemptions by Newbury Street II’s public shareholders) including approximately $31 million of common equity in the form of both PIPE (Private Investment in Public Equity) and NRA investment from existing and new institutional investors. The Business Combination is expected to inject approximately $182 million in net cash directly to the balance sheet post-estimated transaction costs (assuming no redemptions by Newbury Street II’s public shareholders). Proceeds from the Business Combination are expected to accelerate product development (including next-generation safety intelligence, observability and cybersecurity software), scale global go-to-market and channel partner efforts, and support targeted, high-synergy tuck-in M&A opportunities.
Existing FORT shareholders will roll 100% of their equity into the Business Combination, retaining an estimated 67% majority ownership stake on an issued and outstanding basis in the combined company at closing, assuming no redemptions.
The boards of directors of both FORT and Newbury Street II have each unanimously approved the Business Combination, subject to, among other things, the approval by Newbury Street II’s shareholders of the Business Combination, the closing of the concurrent PIPE transaction, satisfaction of conditions stated in the definitive agreement and other customary closing conditions, including that the U.S. Securities and Exchange Commission (the “SEC”) completes its review of the registration statement on Form S-4 and the proxy statement/prospectus, the receipt of certain regulatory approvals and approval by Nasdaq to list the securities of the combined company. The Business Combination is expected to close in the fourth quarter of 2026.
Conference Call Information
FORT and Newbury Street II will host an investor conference call to discuss the proposed transaction at 8:30 a.m. ET today, August 18, 2026. Interested parties may access a live webcast of the conference call by visiting https://app.webinar.net/YvJa2qE2Ey0. A replay of the call will also be made available at www.fortrobotics.com/investors and a transcript of the call will be filed with the Securities and Exchange Commission.
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Advisors
BTIG LLC is serving as exclusive financial advisor and sole placement agent to Newbury Street II Acquisition Corp. Ellenoff Grossman & Schole LLP is serving as legal counsel to Newbury Street II Acquisition Corp. Evercore is serving as structuring advisor to FORT Robotics Inc. Fenwick & West LLP is serving as legal counsel to FORT Robotics, Inc. Loeb & Loeb LLP is acting as legal counsel to BTIG LLC. FINN Partners and Collected Strategies are serving as communications advisors.
About FORT Robotics Inc.
FORT Robotics is The Trust Layer for Physical AI, with the charter of making autonomous machines safe, secure, and reliable enough to deploy at scale alongside humans. Partnering with FORT gives robot manufacturers and end users the ability to certify safety, maximize efficiency, AND gain time to market speed.
Since its founding in 2018, FORT has become a leading provider of safety solutions across the robotics industry and used across warehousing, transportation, manufacturing, construction, agriculture, mining, energy, defense, and other industries. FORT has secured 25 patents and deployed more than 19,500 units to a global base of over 600 customers including Fortune 500 category leaders.
More information at www.fortrobotics.com
About Newbury Street II Acquisition Corp
Newbury Street II is a blank check company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. Newbury Street II is led by Chief Executive Officer Thomas Bushey, former President of Ondas (NASDAQ: ONDS), a leading provider of private wireless networks and autonomous robotics platforms for industrial infrastructure.
Additional Information and Where to Find It
In connection with the Business Combination, Newbury Street II and the Company intend to file the Registration Statement on Form S-4, (as amended or supplemented from time to time, the “Registration Statement”), with the SEC, which will include a proxy statement to Newbury Street II shareholders and a prospectus for the registration of Newbury Street II’s securities to be issued in connection with the Business Combination. This press release does not contain all the information that should be considered concerning the Business Combination and is not intended to form the basis of any investment decision or any other decision in respect of the Business Combination. Newbury Street II’s shareholders and other interested persons are advised to read, the Registration Statement and other documents filed in connection with the Business Combination, as these materials will contain important information about the Company, Newbury Street II and the Business Combination. Shareholders may obtain a copy of the Registration Statement, once available, as well as other documents filed by Newbury Street II with the SEC, without charge, at the SEC’s website located at www.sec.gov or by directing a written request to Newbury Street II Acquisition Corp, 121 High Street, Floor 3, Boston, Massachusetts 02110.
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BEFORE MAKING ANY VOTING DECISION, INVESTORS AND SECURITY HOLDERS OF NEWBURY STREET II ARE URGED TO READ THE REGISTRATION STATEMENT AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC IN CONNECTION WITH THE BUSINESS COMBINATION AS THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE BUSINESS COMBINATION.
Participants in the Solicitation
Newbury Street II, the Company, and their respective directors, executive officers and other members of their management and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of Newbury Street II’s shareholders in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding the names, affiliations and interests of certain of Newbury Street II’s executive officers and directors in the solicitation by reading Newbury Street II’s filings with the SEC, including the final prospectus of Newbury Street II dated as of October 31, 2024 and filed by Newbury Street II with the SEC on November 1, 2024 (the “IPO Prospectus”). To the extent that holdings of Newbury Street II’s securities have changed from the amounts reported in the IPO Prospectus, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Information concerning the interests of Newbury Street II’s and the Company’s participants in the solicitation, which may, in some cases, be different than those of their respective equity holders generally, will be set forth in the Registration Statement relating to the Business Combination when it becomes available.
No Offer or Solicitation
This press release does not constitute an offer to sell or a solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act or an exemption therefrom.
NEITHER THE SEC NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE BUSINESS COMBINATION DESCRIBED HEREIN, PASSED UPON THE MERITS OR FAIRNESS OF THE BUSINESS COMBINATION OR ANY RELATED TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE INFORMATION IN THIS PRESS RELEASE. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
Forward-Looking Statements
This press release includes “forward-looking statements” within the meaning of the federal securities laws. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters. The Company has based these forward-looking statements on current expectations and projections about future events. These statements include: projections of market opportunity and market share; estimates of customer adoption rates and usage patterns; projections regarding the Company’s ability to commercialize new products, technologies and industry use cases; projections of development and commercialization costs and timelines; expectations regarding the Company’s ability to execute its business model and the expected financial benefits of such model; expectations regarding the Company’s ability to attract, retain and expand its customer base; the Company’s deployment of proceeds from capital raising transactions; its expectations concerning relationships with strategic partners, suppliers, governments, state-funded entities, regulatory bodies and other third parties; the Company’s ability to maintain, protect and enhance its intellectual property; future ventures or investments in companies, products, services or technologies; development of favorable regulations affecting its markets; the successful consummation and potential benefits of the proposed transaction and expectations related to its terms and timing; and the potential for the Company to increase in value.
These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions, many of which are beyond the control of the Company and Newbury Street II.
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These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions that may cause the Company or Newbury Street II’s actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by such statements. Such risks and uncertainties include: that the Company is pursuing an emerging technology, faces significant technical challenges and may not achieve commercialization or market acceptance; Company historical net losses and limited operating history; the Company’s expectations regarding future financial performance, capital requirements and unit economics; Company’s use and reporting of business and operational metrics; the Company’s competitive landscape; the Company’s dependence on members of its senior management and its ability to attract and retain qualified personnel; the potential need for additional future financing; the Company’s ability to manage growth and expand its operations; potential future acquisitions or investments in companies, products, services or technologies; the Company’s reliance on strategic partners and other third parties; the Company’s ability to maintain, protect and defend its intellectual property rights; risks associated with privacy, data protection or cybersecurity incidents and related regulations; the use, rate of adoption and regulation of artificial intelligence and machine learning; uncertainty or changes with respect to laws and regulations; uncertainty or changes with respect to taxes, trade conditions and the macroeconomic environment; the combined company’s ability to maintain internal control over financial reporting and operate a public company; the possibility that required regulatory approvals for the proposed transaction are delayed or are not obtained, which could adversely affect the combined company or the expected benefits of the proposed transaction; the risk that shareholders of Newbury Street II could elect to have their shares redeemed, leaving the combined company with insufficient cash to execute its business plans; the occurrence of any event, change or other circumstance that could give rise to the termination of the business combination agreement; the outcome of any legal proceedings or government investigations that may be commenced against the Company or Newbury Street II; failure to realize the anticipated benefits of the proposed transaction; the ability of Newbury Street II or the combined company to issue equity or equity-linked securities in connection with the proposed transaction or in the future; and other factors described in Newbury Street II’s filings with the SEC.
The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the (i) the IPO Prospectus, (ii) the annual report on Form 10-K filed by Newbury Street II with the SEC on March 6, 2026, (iii) the Registration Statement referenced above when available and other documents filed by Newbury Street II and the Company from time to time with the SEC. These filings will identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. You should not place undue reliance upon any forward-looking statements, which speak only as of the date made. There may be additional risks that neither Newbury Street II nor the Company presently knows, or that Newbury Street II and/or the Company currently believe are immaterial, that could cause actual results to differ from those contained in the forward-looking statements. For these reasons, among others, investors and other interested persons are cautioned not to place undue reliance upon any forward-looking statements in this press release. Past performance by Newbury Street II’s or the Company’s management teams and their respective affiliates is not a guarantee of future performance. Therefore, you should not place undue reliance on the historical record of the performance of Newbury Street II’s or the Company’s management teams or businesses associated with them as indicative of future performance of an investment or the returns that Newbury Street II or the Company will, or may, generate going forward. None of the parties nor any of their representatives gives any assurance that any of Newbury Street II, Company, or the combined company will achieve its expectations.
Media Contact
Scott Bisang / David Feldman
[email protected]
Investor Relations Contact
Greg Jawski
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