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Form 1-U Hiro Systems PBC For: Jun 30

July 7, 2022 6:02 AM EDT

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 1-U

 

 

CURRENT REPORT

Pursuant to Regulation A

of the Securities Act of 1933

(July 7, 2022 (June 30, 2022))

(Date of Report (Date of earliest event reported))

 

 

Hiro Systems PBC

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   46-3116269

(State or other jurisdiction

of incorporation)

 

(IRS Employer

Identification No.)

101 W. 23rd St. Ste 224

New York, NY 10011

(Address of principal executive offices)

(212) 634-4254

(Registrant’s telephone number, including area code)

Stacks Tokens

(Title of each class of securities issued pursuant to Regulation A)

 

 

 


Item 3. Material Modification to Rights of Securityholders

Amended and Restated Certificate of Incorporation

On July 6, 2022, Hiro Systems PBC, a Delaware public benefit corporation f/k/a Blockstack Inc. (“Hiro”), filed an Amended and Restated Certificate of Incorporation (the “Certificate”) in connection with changes to the composition of its board of directors (the “Board”). Pursuant to the Certificate, the “Series A Director” (as defined in Hiro’s prior Amended and Restated Certificate of Incorporation) was removed from the Board, and the number of members of the Board elected by the holders of Hiro’s common stock, par value $0.00001 per share (the “Common Stock”), was increased from two to three (the “Board Change”).

Item 9. Other Events

Amended and Restated Voting Agreement

In connection with the Board Change, Hiro also entered into an Amended and Restated Voting Agreement (the “Amended and Restated Voting Agreement”) with the Investors and the Key Holders (the Investors and the Key Holders together, the “Voting Parties”) on June 30, 2022, amending and restating in its entirety that certain Amended and Restated Voting Agreement dated as of February 16, 2022, by and among Hiro, the investors listed on Exhibit A to such agreement and the key holders listed on Exhibit B to such agreement.

The election of the members of the Board is governed by the Amended and Restated Voting Agreement. The parties to the Amended and Restated Voting Agreement have agreed, subject to certain conditions, to vote their shares so as to elect as directors: (i) three nominees chosen by Key Holders holding a majority of the Common Stock (determined on an as-converted basis) so long as such Key Holders are then providing services to Hiro (the “Common Designees”) and (ii) two independent nominees, who are not affiliates of Hiro or any Investor, chosen by Key Holders holding a majority of the Common Stock (determined on an as-converted basis) so long as such Key Holders are then providing services to Hiro and are approved by the holders of Common Stock and Hiro’s preferred stock (voting together as a single class) (the “Independent Designees”).

Elections and Changes to the Board

In connection with the Board Change, (i) the Key Holders designated, and the holders of Common Stock approved, Mr. Muneeb Ali, Mr. Alex Miller and Mr. Albert Wenger to serve as the Common Designees and (ii) the Key Holders designated, and the holders of Common Stock and Hiro’s preferred stock approved, Ms. Julia Austin and Mr. Jaswinder Singh to serve as the Independent Designees, each to serve until her or his respective successor is duly elected and qualified or until her or his earlier respective death, resignation or removal, effective on June 30, 2022. Mr. Ali was also named chairman of the Board.


SIGNATURES

Pursuant to the requirements of Regulation A, the issuer has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

HIRO SYSTEMS PBC
By:  

/s/ Alex Miller

Name:   Alex Miller
Title:   Chief Executive Officer

Date: July 7, 2022


EXHIBITS

Index to Exhibits

 

Exhibit
No.

  

Description

2.1    Amended and Restated Certificate of Incorporation of Hiro Systems PBC
6.1*    Amended and Restated Voting Agreement, dated June 30, 2022, by and among Hiro Systems PBC and the investors and key holders named therein

 

*

Certain non-material exhibits and schedules to this exhibit have been omitted. The registrant hereby undertakes to furnish supplemental copies of the omitted schedules and exhibits upon request by the SEC.

Exhibit 2.1

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

HIRO SYSTEMS PBC

A PUBLIC BENEFIT CORPORATION

Hiro Systems PBC, a public benefit corporation organized and existing under the laws of the State of Delaware (the “Corporation”), certifies that:

1. The name of the Corporation is Hiro Systems PBC. The Corporation was originally incorporated under the name Halfmoon Labs Inc. The Corporation’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on June 24, 2013.

2. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, and has been duly approved by the written consent of the stockholders of the Corporation in accordance with Section 228 of the General Corporation Law of the State of Delaware.

3. The text of the Certificate of Incorporation is amended and restated to read as set forth in EXHIBIT A attached hereto.

IN WITNESS WHEREOF, Hiro Systems PBC has caused this Amended and Restated Certificate of Incorporation to be signed by Alex Miller, a duly authorized officer of the Corporation, on July 5, 2022.

 

/s/ Alex Miller

Alex Miller,

Chief Executive Officer


EXHIBIT A

ARTICLE I

The name of the corporation is Hiro Systems PBC (the “Corporation”).

ARTICLE II

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. In addition, the specific public benefit purpose of the Corporation is to enable an open, decentralized internet which will benefit all internet users by giving them more control over information and computation.

ARTICLE III

The address of the Corporation’s registered office in the State of Delaware is 8 The Green STE R, Kent County, Dover, Delaware 19901. The name of its registered agent at such address is Resident Agents Inc.

ARTICLE IV

The total number of shares of stock that the Corporation shall have authority to issue is 26,498,810 shares, consisting of 20,000,000 shares of common stock, $0.00001 par value per share (“Common Stock”), and 6,498,810 shares of preferred stock, $0.00001 par value per share (“Preferred Stock”). The first series of preferred stock shall be designated “Series A-1 Preferred Stock and shall consist of 2,638,835 shares. The second series of preferred stock shall be designated “Series A-2 Preferred Stock” and shall consist of 440,365 shares. The third series of preferred stock shall be designated “Series A-3 Preferred Stock” and shall consist of 120,238 shares. The fourth series of preferred stock shall be designated “Series A-4 Preferred Stock” and shall consist of 1,162,059 shares. The fifth series of preferred stock shall be designated “Series A-5 Preferred Stock” and shall consist of 94,332 shares. The sixth series of preferred stock shall be designated “Series A-6 Preferred Stock” and shall consist of 83,523 shares. The seventh series of preferred stock shall be designated “Series A-7 Preferred Stock” and shall consist of 19,146 shares. The eighth series of preferred stock shall be designated “Series B Preferred Stock” and shall consist of 1,940,312 shares.

ARTICLE V

The terms and provisions of the Common Stock and Preferred Stock are as follows:

1. Definitions. For purposes of this ARTICLE V, the following definitions shall apply:

(a) “Board of Directors” shall mean the board of directors of the Corporation.


(b) “Conversion Price” shall mean (i) $1.49658 per share for the Series A-1 Preferred Stock, (ii) $0.52229 per share for the Series A-2 Preferred Stock, (iii) $0.83168 per share for the Series A-3 Preferred Stock, (iv) $0.86054 per share for the Series A-4 Preferred Stock, (v) $1.27209 per share for the Series A-5 Preferred Stock, (vi) $1.19726 per share for the Series A-6 Preferred Stock, (vii) $1.04458 per share for the Series A-7 Preferred Stock and (viii) $20.61518 per share for the Series B Preferred Stock, in each case subject to adjustment from time to time for Recapitalizations and as otherwise set forth elsewhere herein.

(c) “Convertible Securities” shall mean any evidences of indebtedness, shares or other securities convertible into or exchangeable for Common Stock.

(d) “Corporation” shall mean Hiro Systems PBC.

(e) “Distribution” shall mean the transfer of cash or other property without consideration whether by way of dividend or otherwise, other than dividends on Common Stock payable in Common Stock, or the purchase or redemption of shares of the Corporation by the Corporation or its subsidiaries for cash or property other than: (i) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Corporation or its subsidiaries upon termination of their employment or services pursuant to agreements providing for the right of said repurchase, (ii) repurchases of Common Stock issued to or held by employees, officers, directors or consultants of the Corporation or its subsidiaries pursuant to rights of first refusal contained in agreements providing for such right, (iii) repurchase of capital stock of the Corporation in connection with the settlement of disputes with any stockholder and (iv) any other repurchase or redemption of capital stock of the Corporation approved by the holders of the Common Stock and Preferred Stock of the Corporation voting as separate classes and on an as-converted basis.

(f) “Dividend Rate” shall mean an annual rate of (i) $0.11973 per share for the Series A-1 Preferred Stock, (ii) $0.04178 per share for the Series A-2 Preferred Stock, (iii) $0.06653 per share for the Series A-3 Preferred Stock, (iv) $0.06884 per share for the Series A-4 Preferred Stock, (v) $0.10177 per share for the Series A-5 Preferred Stock, (vi) $0.09578 per share for the Series A-6 Preferred Stock, (vii) $0.08357 per share for the Series A-7 Preferred Stock and (viii) $1.64921 per share for the Series B Preferred Stock, in each case subject to adjustment from time to time for Recapitalizations and as otherwise set forth elsewhere herein.

(g) “Liquidation Approval Threshold” shall mean holders of 20% of the outstanding shares of Preferred Stock (voting as a single class and on an as-converted basis).

(h) “Liquidation Preference” shall mean (i) $1.49658 per share for the Series A-1 Preferred Stock, (ii) $0.52229 per share for the Series A-2 Preferred Stock, (iii) $0.83168 per share for the Series A-3 Preferred Stock, (iv) $0.86054 per share for the Series A-4 Preferred Stock, (v) $1.27209 per share for the Series A-5 Preferred Stock, (vi) $1.19726 per share for the Series A-6 Preferred Stock, (vii) $1.04458 per share for the Series A-7 Preferred Stock and (viii) $20.61518 per share for the Series B Preferred Stock, in each case subject to adjustment from time to time for Recapitalizations and as otherwise set forth elsewhere herein.


(i) “Options” shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.

(j) “Original Issue Price” shall mean (i) $1.49658 per share for the Series A-1 Preferred Stock, (ii) $0.52229 per share for the Series A-2 Preferred Stock, (iii) $0.83168 per share for the Series A-3 Preferred Stock, (iv) $0.86054 per share for the Series A-4 Preferred Stock, (v) $1.27209 per share for the Series A-5 Preferred Stock, (vi) $1.19726 per share for the Series A-6 Preferred Stock, (vii) $1.04458 per share for the Series A-7 Preferred Stock and (viii) $20.61518 per share for the Series B Preferred Stock, in each case subject to adjustment from time to time for Recapitalizations and as otherwise set forth elsewhere herein.

(k) “Preferred Majority” shall mean holders of a majority of the outstanding shares of Preferred Stock (voting as a single class and on an as-converted basis).

(l) “Recapitalization” shall mean any stock dividend, stock split, combination of shares, reorganization, recapitalization, reclassification or other similar event.

(m) “Requisite Board Vote” shall mean approval by the Board of Directors.

(n) “Original Issue Date” shall mean the date that the first share of Series B Preferred Stock was issued by the Corporation.

(o) “Preferred Stock” shall mean, collectively, the Series A-1 Preferred Stock, the Series A-2 Preferred Stock, the Series A-3 Preferred Stock, the Series A-4 Preferred Stock, the Series A-5 Preferred Stock, the Series A-6 Preferred Stock, the Series A-7 Preferred Stock and the Series B Preferred Stock.

(p) “Series A Preferred Stock” shall mean, collectively, the Series A-1 Preferred Stock, the Series A-2 Preferred Stock, the Series A-3 Preferred Stock, the Series A-4 Preferred Stock, the Series A-5 Preferred Stock, the Series A-6 Preferred Stock and the Series A-7 Preferred Stock.

2. Dividends.

(a) Preferred Stock. In any calendar year, the holders of outstanding shares of Preferred Stock shall be entitled to receive dividends, when, as and if declared by the Board of Directors, out of any assets at the time legally available therefor, at the Dividend Rate specified for such shares of Preferred Stock payable pari passu with any Distribution on Common Stock of the Corporation in such calendar year. No Distributions shall be made with respect to the Common Stock unless dividends on the Preferred Stock have been declared in accordance with the preferences stated herein and all declared dividends on the Preferred Stock have been paid or set aside for payment to the Preferred Stock holders. The right to receive dividends on shares of


Preferred Stock shall not be cumulative, and no right to dividends shall accrue to holders of Preferred Stock by reason of the fact that dividends on said shares are not declared or paid. Payment of any dividends to the holders of Preferred Stock shall be on a pro rata, pari passu basis in proportion to the Dividend Rates for each series of Preferred Stock. For the avoidance of doubt, this section 2(a) shall also apply to Distributions of secure access tokens or similar cryptocurrencies related to the Corporation to the holders of outstanding Preferred Stock and outstanding Common Stock.

(b) Additional Dividends. After the payment or setting aside for payment of the dividends described in Section 2(a), any additional dividends (other than dividends on Common Stock payable solely in Common Stock) set aside or paid in any fiscal year shall be set aside or paid among the holders of the Preferred Stock and Common Stock then outstanding in proportion to the greatest whole number of shares of Common Stock which would be held by each such holder if all shares of Preferred Stock were converted at the then-effective Conversion Rate (as defined in Section 4(a)).

(c) Non-Cash Distributions. Whenever a Distribution provided for in this Section 2 shall be payable in property other than cash, the value of such Distribution shall be deemed to be the fair market value of such property as determined in good faith by the Board of Directors.

(d) Waiver of Dividends. Any dividend preference of any series of Preferred Stock may be waived, in whole or in part, by the consent or vote of the holders of the majority of the outstanding shares of such series.

3. Liquidation Rights.

(a) Liquidation Preference. In the event of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary, the holders of the Preferred Stock shall be entitled to receive out of the proceeds or assets of the Corporation available for Distribution to its stockholders (the “Proceeds”), prior and in preference to any Distribution of the Proceeds to the holders of Common Stock by reason of their ownership of such stock, an amount per share for each share of Preferred Stock held by them equal to the greater of (i) the sum of (a) the Liquidation Preference specified for such share of Preferred Stock and (b) all declared but unpaid dividends (if any) on such share of Preferred Stock and (ii) such amount per share as would have been payable had all shares of Preferred Stock been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution or winding up of the Corporation, or such lesser amount as may be approved by a Preferred Majority. If upon the liquidation, dissolution or winding up of the Corporation, the assets of the Corporation legally available for distribution to the holders of the Preferred Stock are insufficient to permit the payment to such holders of the full amounts specified in this Section 3(a), then the entire assets of the Corporation legally available for distribution shall be distributed with equal priority and pro rata among the holders of the Preferred Stock in proportion to the full amounts they would otherwise be entitled to receive pursuant to this Section 3(a).


(b) Remaining Assets. After the payment or setting aside for payment to the holders of Preferred Stock of the full amounts specified in Section 3(a), the entire remaining assets of the Corporation legally available for distribution shall be distributed pro rata to holders of the Common Stock of the Corporation in proportion to the number of shares of Common Stock held by them.

(c) Shares not Treated as Both Preferred Stock and Common Stock in any Distribution. Shares of Preferred Stock shall not be entitled to be converted into shares of Common Stock in order to participate in any Distribution, or series of Distributions, as shares of Common Stock, without first foregoing participation in the Distribution, or series of Distributions, as shares of Preferred Stock.

(d) Reorganization. For purposes of this Section 3, a liquidation, dissolution or winding up of the Corporation shall be deemed to be occasioned by, or to include (each, a “Liquidation Event”), (i) the acquisition of the Corporation by another entity by means of any transaction or series of related transactions to which the Corporation is party (including, without limitation, any stock acquisition, reorganization, merger or consolidation but excluding any sale of stock for capital raising purposes) other than a transaction or series of transactions in which the holders of the voting securities of the Corporation outstanding immediately prior to such transaction retain, immediately after such transaction or series of transactions, as a result of shares in the Corporation held by such holders prior to such transaction, at least a majority of the total voting power represented by the outstanding voting securities of the Corporation or such other surviving or resulting entity (or if the Corporation or such other surviving or resulting entity is a wholly-owned subsidiary immediately following such acquisition, its parent); (ii) a sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Corporation and its subsidiaries taken as a whole by means of any transaction or series of related transactions, except where such sale, lease or other disposition is to a wholly-owned subsidiary of the Corporation; or (iii) any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary. The treatment of any transaction or series of related transactions as a Liquidation Event pursuant to clause (i) or (ii) of the preceding sentence may be waived by a Preferred Majority.

(e) Valuation of Non-Cash Consideration. If any assets of the Corporation distributed to stockholders in connection with any Liquidation Event are other than cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors, except that any publicly-traded securities to be distributed to stockholders in a Liquidation Event shall be valued as follows:

(i) if the securities are then traded on a national securities exchange, then the value of the securities shall be deemed to be the average of the closing prices of the securities on such exchange over the ten (10) trading day period ending five (5) trading days prior to the Distribution; and


(ii) if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the ten (10) trading day period ending five (5) trading days prior to the Distribution.

In the event of a merger or other acquisition of the Corporation by another entity, the Distribution date shall be deemed to be the date such transaction closes.

For the purposes of this Section 3(f), “trading day” shall mean any day which the exchange or system on which the securities to be distributed are traded is open and “closing prices” or “closing bid prices” shall be deemed to be: (i) for securities traded primarily on the New York Stock Exchange, the American Stock Exchange or a Nasdaq market, the last reported trade price or sale price, as the case may be, at 4:00 p.m., New York time, on that day and (ii) for securities listed or traded on other exchanges, markets and systems, the market price as of the end of the regular hours trading period that is generally accepted as such for such exchange, market or system. If, after the date hereof, the benchmark times generally accepted in the securities industry for determining the market price of a stock as of a given trading day shall change from those set forth above, the fair market value shall be determined as of such other generally accepted benchmark times.

4. Conversion. The holders of the Preferred Stock shall have conversion rights as follows:

(a) Right to Convert. Each share of Preferred Stock shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Corporation or any transfer agent for the Preferred Stock, into that number of fully-paid, nonassessable shares of Common Stock determined by dividing the Original Issue Price for the relevant series by the Conversion Price for such series. (The number of shares of Common Stock into which each share of Preferred Stock of a series may be converted is hereinafter referred to as the “Conversion Rate” for each such series.) Upon any decrease or increase in the Conversion Price for any series of Preferred Stock, as described in this Section 4, the Conversion Rate for such series shall be appropriately increased or decreased.

(b) Automatic Conversion. Each share of Preferred Stock shall automatically be converted into fully-paid, non-assessable shares of Common Stock at the then effective Conversion Rate for such share (i) immediately prior to the closing of a firm commitment underwritten initial public offering pursuant to an effective registration statement filed under the Securities Act of 1933, as amended (the “Securities Act”), covering the offer and sale of capital stock of the Corporation, provided that the aggregate gross proceeds to the Corporation are not less than $25,000,000, or (ii) upon the receipt by the Corporation of a written request for such conversion from a Preferred Majority, or, if later, the effective date (including a date or time determined by the happening of a future event) for conversion specified in such request (each of the events referred to in clauses (i) and (ii) are referred to herein as an “Automatic Conversion Event”).


(c) Mechanics of Conversion. No fractional shares of Common Stock shall be issued upon conversion of Preferred Stock. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the then fair market value of a share of Common Stock as determined by the Board of Directors. For such purpose, all shares of Preferred Stock being converted by a holder of Preferred Stock shall be aggregated, and any resulting fractional share of Common Stock shall be paid in cash. Before any holder of Preferred Stock shall be entitled to convert the same into full shares of Common Stock, and to receive certificates therefor, the holder shall either (A) surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or of any transfer agent for the Preferred Stock or (B) notify the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed and execute an agreement satisfactory to the Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificates, and shall give written notice to the Corporation at such office that the holder elects to convert the same; provided, however, that at the time of an Automatic Conversion Event, the outstanding shares of Preferred Stock shall be converted automatically without any further action by the holders of such shares and whether or not the certificates representing such shares are surrendered to the Corporation or its transfer agent; provided further, however, that the Corporation shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such Automatic Conversion Event unless either the certificates evidencing such shares of Preferred Stock are delivered to the Corporation or its transfer agent as provided above, or the holder notifies the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement satisfactory to the Corporation to indemnify the Corporation from any loss incurred by it in connection with such certificates. From and after the time of the occurrence of an Automatic Conversion Event, each holder of record of shares of Preferred Stock shall be deemed to be the holder of record of the Common Stock issuable upon such conversion, notwithstanding that the certificates representing such shares of Preferred Stock shall not have been surrendered at the office of the Corporation, that notice from the Corporation shall not have been received by any holder of record of shares of Preferred Stock, or that the certificates evidencing such shares of Common Stock shall not then be actually delivered to such holder. The Corporation shall, as soon as practicable after such delivery, or after such agreement and indemnification, issue and deliver at such office to such holder of Preferred Stock, a certificate or certificates for the number of shares of Common Stock to which the holder shall be entitled as aforesaid and a check payable to the holder in the amount of any cash amounts payable as the result of a conversion into fractional shares of Common Stock, plus any declared and unpaid dividends on the converted Preferred Stock. With respect to a conversion that does not result from the happening of an Automatic Conversion Event, such conversion shall be deemed to have been made immediately prior to the close of business on the date of such surrender of the shares of Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date; provided, however, that if the conversion is in connection with an underwritten offer of securities registered pursuant to the Securities Act or a merger, sale, financing, or liquidation of the Corporation or other event, the conversion may, at the option of any holder tendering Preferred Stock for conversion, be conditioned upon the closing of such transaction or upon the occurrence of such event, in which case the person(s) entitled to receive the Common Stock issuable upon such conversion of the Preferred Stock shall not be deemed to have converted such Preferred Stock until immediately prior to the closing of such transaction or the occurrence of such event.


(d) Adjustments to Conversion Price for Diluting Issues.

(i) Special Definition. For purposes of this Section 4(d), “Additional Shares of Common” shall mean all shares of Common Stock issued (or, pursuant to Section 4(d)(iii), deemed to be issued) by the Corporation after the filing of this Amended and Restated Certificate of Incorporation, other than issuances or deemed issuances of (collectively, the “Exempted Securities”):

(1) shares of Common Stock upon the conversion of the Preferred Stock;

(2) shares of Common Stock issued or issuable as a dividend or distribution on Preferred Stock or pursuant to any event for which adjustment is made pursuant to Section 4(e), Section 4(f) or Section 4(g);

(3) shares of Common Stock and options, warrants or other rights to purchase Common Stock issued or issuable to employees, officers or directors of, or consultants or advisors to the Corporation or any subsidiary pursuant to stock grants, restricted stock purchase agreements, option plans, purchase plans, incentive programs or similar arrangements, in each case, as approved by the Board of Directors;

(4) shares of Common Stock issued or issuable in an underwritten registered public offering under the Securities Act;

(5) shares of Common Stock upon the exercise or conversion of Options or Convertible Securities;

(6) shares of Common Stock issued or issuable pursuant to a bona fide acquisition of another corporation by the Corporation by merger, share acquisition, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided, that such issuances are approved by the Board of Directors;

(7) shares of Common Stock issued or issuable to persons or entities with which the Corporation has business relationships, provided such issuances are for other than primarily equity financing purposes and are approved by the Board of Directors;

(8) shares of Common Stock issued or issuable to banks, equipment lessors, real property lessors, financial institutions or other persons engaged in the business of making loans pursuant to a debt financing, commercial leasing or real property leasing transaction approved by the Board of Directors; provided that such issuances are for other than primarily equity financing purposes; or


(9) shares of Common Stock issued or issuable otherwise expressly excluded by the consent or vote of a Preferred Majority.

(ii) No Adjustment of Conversion Price. No adjustment in the Conversion Price of a particular series of Preferred Stock shall be made in respect of the issuance of Additional Shares of Common unless the consideration per share (as determined pursuant to Section 4(d)(v)) for an Additional Share of Common issued or deemed to be issued by the Corporation is less than the Conversion Price in effect on the date of, and immediately prior to such issue, for such series of Preferred Stock.

(iii) Deemed Issue of Additional Shares of Common. If the Corporation at any time or from time to time after the Original Issue Date shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent adjustment of such number) of Common Stock issuable upon the exercise of such Options or, in the case of Convertible Securities, the conversion or exchange of such Convertible Securities or, in the case of Options for Convertible Securities, the exercise of such Options and the conversion or exchange of the underlying securities, shall be deemed to have been issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date, provided that in any such case in which shares are deemed to be issued:

(1) no further adjustment in the Conversion Price of any series of Preferred Stock shall be made upon the subsequent issue of Convertible Securities or shares of Common Stock in connection with the exercise of such Options or conversion or exchange of such Convertible Securities;

(2) if such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any change in the consideration payable to the Corporation or in the number of shares of Common Stock issuable upon the exercise, conversion or exchange thereof (other than a change pursuant to the anti-dilution provisions of such Options or Convertible Securities such as this Section 4(d) or pursuant to Recapitalization provisions of such Options or Convertible Securities such as Sections 4(e), 4(f) and 4(g) hereof), the Conversion Price of each series of Preferred Stock and any subsequent adjustments based thereon shall be recomputed to reflect such change as if such change had been in effect as of the original issue thereof (or upon the occurrence of the record date with respect thereto);

(3) no readjustment pursuant to Section 4(d)(iii)(2) above shall have the effect of increasing the Conversion Price of a series of Preferred Stock to an amount above the Conversion Price that would have resulted from any other issuances of Additional Shares of Common and any other adjustments provided for herein between the original adjustment date and such readjustment date;


(4) upon the expiration of any such Options or any rights of conversion or exchange under such Convertible Securities which shall not have been exercised, the Conversion Price of each series of Preferred Stock computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto) and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if:

a) in the case of Convertible Securities or Options for Common Stock, the only Additional Shares of Common issued were the shares of Common Stock, if any, actually issued upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the Corporation for the issue of such exercised Options plus the consideration actually received by the Corporation upon such exercise or for the issue of all such Convertible Securities which were actually converted or exchanged, plus the additional consideration, if any, actually received by the Corporation upon such conversion or exchange, and

b) in the case of Options for Convertible Securities, only the Convertible Securities, if any, actually issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the Corporation for the Additional Shares of Common deemed to have been then issued was the consideration actually received by the Corporation for the issue of such exercised Options, plus the consideration deemed to have been received by the Corporation (determined pursuant to Section 4(d)(v)) upon the issue of the Convertible Securities with respect to which such Options were actually exercised; and

(5) if such record date shall have been fixed and such Options or Convertible Securities are not issued on the date fixed therefor, the adjustment previously made in the Conversion Price which became effective on such record date shall be canceled as of the close of business on such record date, and thereafter the Conversion Price shall be adjusted pursuant to this Section 4(d)(iii) as of the actual date of their issuance.

(iv) Adjustment of Conversion Price Upon Issuance of Additional Shares of Common. If the Corporation issues Additional Shares of Common (including Additional Shares of Common deemed to be issued pursuant to Section 4(d)(iii)) without consideration or for a consideration per share less than the applicable Conversion Price of a series of Preferred Stock in effect on the date of and immediately prior to such issue, then, the Conversion Price of the affected series of Preferred Stock shall be reduced, concurrently with such issue, to a price (calculated to the nearest one hundredth of one cent) determined by multiplying such Conversion Price by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately prior to such issue plus the number of shares which the aggregate consideration received by the Corporation for the total number of Additional Shares of Common so issued would purchase at such Conversion Price, and the denominator of which shall be the number of shares of Common Stock outstanding immediately prior to such issue plus the number of such Additional Shares of Common so issued. Notwithstanding the foregoing, the Conversion Price shall not be reduced at such time if the amount of such reduction would be less than $0.01,


but any such amount shall be carried forward, and a reduction will be made with respect to such amount at the time of, and together with, any subsequent reduction which, together with such amount and any other amounts so carried forward, equal $0.01 or more in the aggregate. For the purposes of this Section 4(d)(iv), all shares of Common Stock issuable upon conversion of all outstanding shares of Preferred Stock and the exercise and/or conversion of any other outstanding Convertible Securities and all outstanding Options shall be deemed to be outstanding.

(v) Determination of Consideration. For purposes of this Section 4(d)(v), the consideration received by the Corporation for the issue (or deemed issue) of any Additional Shares of Common shall be computed as follows:

(1) Cash and Property. Such consideration shall:

a) insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the Corporation for any underwriting or otherwise in connection with such issuance;

b) insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board of Directors; and

c) if Additional Shares of Common are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (A) and (B) above, as reasonably determined in good faith by the Board of Directors.

(2) Options and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common deemed to have been issued pursuant to Section 4(d)(iii) shall be determined by dividing:

(x) the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities by

(y) the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities.


(e) Adjustments for Subdivisions or Combinations of Common Stock. If the outstanding shares of Common Stock shall be subdivided (by stock split, by payment of a stock dividend or otherwise), into a greater number of shares of Common Stock, the Conversion Price of each series of Preferred Stock in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately decreased. If the outstanding shares of Common Stock shall be combined (by reclassification or otherwise) into a lesser number of shares of Common Stock, the Conversion Prices in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately increased.

(f) Adjustments for Subdivisions or Combinations of Preferred Stock. If the outstanding shares of Preferred Stock or a series of Preferred Stock shall be subdivided (by stock split, by payment of a stock dividend or otherwise), into a greater number of shares of Preferred Stock, the Dividend Rate, Original Issue Price and Liquidation Preference of the affected series of Preferred Stock in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately decreased. If the outstanding shares of Preferred Stock or a series of Preferred Stock shall be combined (by reclassification or otherwise) into a lesser number of shares of Preferred Stock, the Dividend Rate, Original Issue Price and Liquidation Preference of the affected series of Preferred Stock in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately increased.

(g) Adjustments for Reclassification, Change and Substitution. Subject to Section 3 (“Liquidation Rights”), if the Common Stock issuable upon conversion of the Preferred Stock shall be changed into the same or a different number of shares of any other class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares provided for above), then, in any such event, in lieu of the number of shares of Common Stock which the holders would otherwise have been entitled to receive each holder of such Preferred Stock shall have the right thereafter to convert such shares of Preferred Stock into a number of shares of such other class or classes of stock which a holder of the number of shares of Common Stock deliverable upon conversion of such series of Preferred Stock immediately before that change would have been entitled to receive in such reorganization or reclassification, all subject to further adjustment as provided herein with respect to such other shares.

(h) Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Conversion Price pursuant to this Section 4, the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Preferred Stock a certificate setting forth such adjustment or readjustment and showing in reasonable detail the facts upon which such adjustment or readjustment is based. The Corporation shall, following the written request at any time of any holder of Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the Conversion Price at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, of other property which at the time would be received upon the conversion of Preferred Stock.


(i) Waiver of Adjustment of Conversion Price. Notwithstanding anything herein to the contrary, any downward adjustment of the Conversion Price of any series of Preferred Stock may be waived by the consent or vote of the holders of a majority of the outstanding shares of such series either before or after the issuance causing the adjustment. Any such waiver shall bind all future holders of shares of such series of Preferred Stock.

(j) Notices of Record Date. If the Corporation shall propose at any time:

(i) to declare any Distribution upon its Common Stock, whether in cash, property, stock or other securities, whether or not a regular cash dividend and whether or not out of earnings or earned surplus;

(ii) to effect any reclassification or recapitalization of its Common Stock outstanding involving a change in the Common Stock; or

(iii) to voluntarily liquidate or dissolve or to enter into any transaction deemed to be a liquidation, dissolution or winding up of the Corporation pursuant to Section 3(d);

then, in connection with each such event, the Corporation shall send to the holders of the Preferred Stock at least 5 days’ prior written notice in respect of the matters referred to in (i), (ii) and (iii) above of the date on which a record shall be taken for such Distribution (and specifying the date on which the holders of Common Stock shall be entitled thereto and, if applicable, the amount and character of such Distribution) or for determining rights to vote in respect of the matters referred to in Section 4(j)(ii) and Section 4(j)(iii). Such notice shall be given by in any matter permitted by the Delaware General Corporation Law. The notice provisions set forth in this Section 4 may be shortened or waived prospectively or retrospectively by a Preferred Majority.

(k) Reservation of Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock solely for the purpose of effecting the conversion of the shares of the Preferred Stock, such number of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the Corporation will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.

5. Voting.

(a) Restricted Class Voting. Except as otherwise expressly provided herein or as required by law, the holders of Preferred Stock and the holders of Common Stock shall vote together and not as separate classes.


(b) No Series Voting. Other than as provided herein or required by law, there shall be no series voting.

(c) Preferred Stock. Each holder of Preferred Stock shall be entitled to the number of votes equal to the number of shares of Common Stock into which the shares of Preferred Stock held by such holder could be converted as of the record date. Fractional votes shall not be permitted and any fractional voting rights resulting from the above formula (after aggregating all shares into which shares of Preferred Stock held by each holder could be converted) shall be disregarded. Except as otherwise expressly provided herein or as required by law, the holders of shares of the Preferred Stock shall be entitled to vote on all matters on which the Common Stock shall be entitled to vote. Holders of Preferred Stock shall be entitled to notice of any stockholders’ meeting in accordance with the Bylaws of the Corporation.

(d) Election of Directors.

(i) The holders of Common Stock, voting as a separate class, shall be entitled to elect three members of the Board of Directors at each meeting or pursuant to each consent of the Corporation’s stockholders for the election of directors. Any additional members of the Board of Directors shall be elected by the holders of Common Stock and Preferred Stock (voting together as a single class).

(ii) Notwithstanding the provisions of Section 223(a)(1) and 223(a)(2) of the Delaware General Corporation Law, any vacancy, including newly created directorships resulting from any increase in the authorized number of directors or amendment of this Amended and Restated Certificate of Incorporation and vacancies created by removal or resignation of a director, may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced; provided, however, that where such vacancy occurs among the directors elected by the holders of a class or series of stock, the holders of shares of such class or series may override the Board of Directors’ action to fill such vacancy by (i) voting for their own designee to fill such vacancy at a meeting of the Corporation’s stockholders or (ii) written consent, if the consenting stockholders hold a sufficient number of shares to elect their designee at a meeting of the stockholders in which all members of such class or series are present and voted. Any director may be removed during his or her term of office without cause, by, and only by, the affirmative vote of the holders of the shares of the class or series of stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders, and any vacancy thereby created may be filled by the holders of that class or series of stock represented at the meeting or pursuant to written consent. At any meeting held for the purpose of electing a director, the presence in person or by proxy of the holders of a majority of the voting power of the outstanding shares of the class or series entitled to elect such director shall constitute a quorum for the purpose of electing such director.


(e) Adjustment in Authorized Common Stock. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares of Common Stock then outstanding) by an affirmative vote of the holders of a majority of the capital stock of the Corporation, irrespective of the provisions of Section 242(b)(2) of the Delaware General Corporation Law.

(f) Common Stock. Each holder of shares of Common Stock shall be entitled to one vote for each share thereof held as of the applicable record date.

6. Protective Provisions. As long as at least 2,288,977 shares (as adjusted for Recapitalizations) of Preferred Stock shall be issued and outstanding the Corporation shall not, whether by merger, reclassification, consolidation or otherwise, without first obtaining the approval (by vote or written consent as provided by law) of the holders of a Preferred Majority (except with respect to Section 6(c) below, which shall require the approval of the Liquidation Approval Threshold) (in addition to any other vote required by law or the Amended and Restated Certificate of Incorporation or Bylaws of the Corporation):

(a) authorize or create or issue or obligate itself to issue any new class or series of equity security having rights, preferences or privileges with respect to dividends, redemption or payments upon liquidation senior to or on a parity with any series of Preferred Stock;

(b) declare or pay any Distribution with respect to the Preferred Stock or Common Stock of the Corporation;

(c) liquidate, dissolve or wind up the Corporation, or effect any Liquidation Event;

(d) increase or decrease (other than for decreases resulting from conversion of the Preferred Stock) (i) the authorized number of shares of Preferred Stock or any series thereof or (ii) the authorized number of shares of Common Stock;

(e) amend, alter or repeal any provision of the Amended and Restated Certificate of Incorporation or Bylaws of the Corporation if such action would adversely alter the rights, preferences, privileges or powers of, or restrictions provided for the benefit of the Preferred Stock or any series thereof;

(f) increase or decrease the size of the Board of Directors; or

(g) amend this Section 6.

7. Reissuance of Preferred Stock. If any shares of Preferred Stock are converted pursuant to Section 4 or otherwise repurchased by the Corporation, the shares so converted or repurchased shall be cancelled and shall not be issuable by the Corporation.


8. Notices. Any notice required by the provisions of this ARTICLE V to be given to the holders of Preferred Stock shall be deemed given if deposited in the United States mail, postage prepaid, and addressed to each holder of record at such holder’s address appearing on the books of the Corporation.

ARTICLE VI

The Corporation is to have perpetual existence.

ARTICLE VII

Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

ARTICLE VIII

Unless otherwise set forth herein, the number of directors that constitute the Board of Directors shall be fixed by, or in the manner provided in, the Bylaws of the Corporation.

ARTICLE IX

In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation.

ARTICLE X

1. To the fullest extent permitted by the Delaware General Corporation Law as the same exists or as may hereafter be amended, a director or officer of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director or officer. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Neither any amendment, elimination nor repeal of this Section 1, nor the adoption of any provision of the Amended and Restated Certificate of Incorporation of the Corporation inconsistent with this Section 1, shall eliminate or reduce the effect of this Section 1, in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Section 1, would accrue or arise, prior to such amendment, elimination, repeal or adoption of an inconsistent provision. Any disinterested failure to satisfy Section 365 of the General Corporation Law shall not, for the purposes of Sections 102(b)(7) or 145 of the General Corporation Law, constitute an act or omission not in good faith, or a breach of the duty of loyalty.


2. The Corporation shall have the power to indemnify, to the extent permitted by the Delaware General Corporation Law, as it presently exists or may hereafter be amended from time to time, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding. A right to indemnification or to advancement of expenses arising under a provision of the Amended and Restated Certificate of Incorporation or the Bylaws of the Corporation shall not be eliminated or impaired by an amendment to the Amended and Restated Certificate of Incorporation or the Bylaws of the Corporation after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.

ARTICLE XI

Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside of the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

ARTICLE XII

To the extent permitted by law, the Corporation renounces any expectancy that a Covered Person offer the Corporation an opportunity to participate in a Specified Opportunity and waives any claim that the Specified Opportunity constitutes a corporate opportunity that should have been presented by the Covered Person to the Corporation; provided, however, that the Covered Person acts in good faith. A “Covered Person” is any member of the Board of Directors (who is not an employee of the Corporation or any of its subsidiaries) who is a partner, member or employee of a Fund. A “Specified Opportunity” is any transaction or other matter that is presented to the Covered Person in his or her capacity as a partner, member or employee of a Fund (and other than in connection with his or her service as a member of the Board of Directors) that may be an opportunity of interest for both the Corporation and the Fund. A “Fund” is an entity that is a holder of Preferred Stock and that is primarily in the business of investing in other entities, or an entity that manages such an entity.

Exhibit 6.1

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS

BOTH NOT MATERIAL AND IS THE TYPE THAT THE COMPANY TREATS AS PRIVATE OR

CONFIDENTIAL. INFORMATION THAT WAS OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A

PLACEHOLDER IDENFIED BY THE MARK “[***]”.

HIRO SYSTEMS PBC

AMENDED AND RESTATED VOTING AGREEMENT

June 30, 2022


TABLE OF CONTENTS

 

     Page  

SECTION 1 DEFINITIONS

     1  

1.1

  Certain Definitions      1  

SECTION 2 VOTING

     2  

2.1

  General      2  

SECTION 3 ELECTION OF DIRECTORS

     2  

3.1

  Voting      2  

3.2

  Designation of Directors      3  

3.3

  Current Designees      3  

3.4

  Changes in Designees      3  

3.5

  Removal of Common Director      4  

3.6

  Size of the Board of Directors      4  

3.7

  No Liability for Election of Recommended Director      4  

3.8

  No “Bad Actor” Disqualification      4  

SECTION 4 DRAG-ALONG RIGHTS

     5  

4.1

  Drag-Along Rights      5  

4.2

  Restrictions on Stock Sales      6  

SECTION 5 TERMINATION

     6  

5.1

  Termination      6  

SECTION 6 ADDITIONAL SHARES

     6  

6.1

  Additional Shares      6  

SECTION 7 RESTRICTIVE LEGEND

     7  

7.1

  Restrictive Legend      7  

SECTION 8 MISCELLANEOUS

     7  

8.1

  Notices      7  

8.2

  Successors and Assigns      8  

8.3

  Additional Parties      8  

8.4

  Governing Law      8  

8.5

  Titles and Subtitles      8  

8.6

  Further Assurances      8  

8.7

  Entire Agreement      8  

8.8

  No Grant of Proxy      8  

8.9

  Not a Voting Trust      8  

8.10

  Specific Performance      9  

8.11

  Amendment      9  

8.12

  No Waiver      9  

8.13

  Jurisdiction and Venue      9  

8.14

  Severability      9  

8.15

  Counterparts      9  

8.16

  Telecopy Execution and Delivery      9  

8.17

  Jury Trial      10  

 


HIRO SYSTEMS PBC

AMENDED AND RESTATED VOTING AGREEMENT

This Amended and Restated Voting Agreement (this “Agreement”) is dated as of June 30, 2022, and is by and among Hiro Systems PBC, a Delaware public benefit corporation (the “Company”), the persons and entities listed on Exhibit A (each an “Investor,” and collectively the “Investors”), and the persons listed on Exhibit B (each a “Key Holder,” and collectively the “Key Holders”). The Key Holders and the Investors are referred to herein collectively as the “Voting Parties.”

RECITALS

WHEREAS, the Company, the Key Holders and the Investors are parties to that certain Amended and Restated Voting Agreement, dated as of February 16, 2022 (the “Prior Agreement”);

WHEREAS, concurrent herewith the Company shall file an Amended and Restated Certificate of Incorporation (as amended from time to time, the “Restated Certificate”) pursuant to which the holders of the Company’s common stock (“Common Stock”) shall be entitled to elect two directors (the “Common Directors”) to the Company’s board of directors (the “Board”) and the holders of the Company’s Common Stock and Preferred Stock (as defined below), voting together shall be entitled to elect any additional directors to the Board (the “Additional Directors”); and

WHEREAS, the Company, the Key Holders and the Investors wish to amend and restate the Prior Agreement in its entirety as set forth herein.

NOW, THEREFORE, the parties agree as follows:

SECTION 1

DEFINITIONS

1.1 Certain Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

(a) “Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person.

(b) “Capital Stock” means, collectively, the Common Stock, the Preferred Stock and all other shares of capital stock issued by the Company.

(c) “Change of Control Transaction” means any of (a) the acquisition of the Company by another entity by means of any transaction or series of related transactions to which the Company is party (including, without limitation, any reorganization, merger or consolidation but excluding any sale of stock for capital raising purposes) that results in the voting securities of the Company outstanding immediately prior thereto failing to represent immediately after such transaction or series of transactions (either by remaining outstanding or by being converted into voting securities of the surviving entity or the entity that controls such surviving entity) a majority of the total voting power represented by the outstanding voting securities of the Company, such surviving entity or the entity that controls such surviving entity; (b) a sale, lease or other conveyance of all or substantially all of the assets of the Company; or (c) a Stock Sale.


(d) “Key Holder Majority” means Key Holders holding a majority of the Common Stock (determined on an as-converted basis) held by all Key Holders.

(e) “Investor Majority” means Investors holding a majority of the Common Stock (determined on an as-converted basis) held by all Investors.

(f) “Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.

(g) “Preferred Stock” means the Series A Preferred Stock, the Company’s Series B Preferred Stock and any other series of the Company’s Preferred Stock.

(h) “Purchase Agreement” means that certain Series B Preferred Stock Purchase Agreement dated February 16, 2022, by and among the Company and the persons and entities listed on the Schedule of Investors attached as Exhibit A thereto.

(i) “Series A Preferred Stock” means the Company’s Series A-1 Preferred Stock, the Company’s Series A-2 Preferred Stock, the Company’s Series A-3 Preferred Stock, the Company’s Series A-4 Preferred Stock, the Company’s Series A-5 Preferred Stock, the Company’s Series A-6 Preferred Stock and the Company’s Series A-7 Preferred Stock.

(j) “Stock Sale” means a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the Company shares representing more than fifty percent (50%) of the outstanding voting power of the Company.

(k) “USV” means USV 2014, LP and USV Investors 2014, LP.

(l) “Vote” shall include any exercise of voting rights whether at an annual or special meeting or by written consent or in any other manner permitted by applicable law.

SECTION 2

VOTING

2.1 General. During the term of this Agreement, each Voting Party agrees to Vote all shares of the Company’s voting securities now or hereafter owned by them, whether directly or indirectly, beneficially or otherwise, or as to which they have voting power (the “Shares”), in accordance with the provisions of this Agreement.

SECTION 3

ELECTION OF DIRECTORS

3.1 Voting. During the term of this Agreement, each Voting Party agrees to vote all Shares in such manner as may be necessary to elect (and maintain in office) as members of the Board the following individuals:

 

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(a) Three Common Designees (as defined below) as the Common Directors.

(b) Two Independent Designees (as defined below) as the Additional Directors.

3.2 Designation of Directors. The designees to the Board described above (each a “Designee”) shall be selected as follows:

(a) Each “Common Designee” shall be chosen by Key Holders holding a majority of the Common Stock (determined on an as-converted basis) that is held by Key Holders who are then providing services to the Company.

(b) Each “Independent Designee” shall be a person who is not an Affiliate of the Company or any Investor, chosen by Key Holders holding a majority of the Common Stock (determined on an as-converted basis) that is held by Key Holders who are then providing services to the Company and shall be approved by the holders of a majority of the voting power of the outstanding shares of Common Stock and Preferred Stock (voting together as a single class). Notwithstanding the foregoing, during the term of this Agreement, with respect to the election of any member of the Board, USV agrees to Vote any Shares now or hereafter owned by it as follows:

(i) If the aggregate sum of outstanding voting power of the Capital Stock held by USV (determined on an as-converted basis) is less than ten percent (10%) of the total outstanding voting power of the Capital Stock (determined on an as-converted basis), USV may Vote any of its Shares subject to its discretion, provided, however, that if USV chooses to Vote any of its Shares, USV must Vote such Shares in accordance with this Agreement.

(ii) If the aggregate sum of outstanding voting power of the Capital Stock held by USV (determined on an as-converted basis) is equal to or exceeds ten percent (10%) of the total outstanding voting power of the Capital Stock (determined on an as-converted basis), USV (i) may Vote an amount of its Shares representing less than ten percent (10%) of the total outstanding voting power of the Capital Stock(determined on an as-converted basis) subject to its discretion, provided, however, that if USV chooses to Vote any of its Shares, USV must Vote such Shares in accordance with this Agreement (the “USV Discretionary Vote”) and (ii) will Vote each of its remaining Shares in the same manner as the holders of a majority of the voting power of the outstanding Capital Stock other than USV (the “Voting Majority”). For the purposes of the preceding sentence, any determination of the Voting Majority shall exclude the USV Discretionary Vote.

3.3 Current Designees. For the purpose of this Agreement, as of the date of this Agreement, the directors of the Company shall be deemed to include the following Designees:

(a) The first Common Designee: Muneeb Ali.

(b) The second Common Designee: Alex Miller.

(c) The third Common Designee: Albert Wenger.

(d) The first Independent Designee: Julia Austin.

(e) The second Independent Designee: Jaswinder Singh.

3.4 Changes in Designees. From time to time during the term of this Agreement, Voting Parties who hold sufficient Shares to select a Designee pursuant to this Agreement may, in their sole discretion:

 

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(a) notify the Company in writing of an intention to remove from the Board any incumbent Designee who occupies a seat on the Board for which such Voting Parties are entitled to designate the Designee; or

(b) notify the Company in writing of an intention to select a new Designee for election to a seat on the Board for which such Voting Parties are entitled to designate the Designee (whether to replace a prior Designee or to fill a vacancy in such seat on the Board).

In the event of such an initiation of a removal or selection of a Designee under this section, the Company shall take such reasonable actions as are necessary to facilitate such removals or elections, including, without limitation, soliciting the votes of the appropriate stockholders, and the Voting Parties shall vote their Shares to cause: (a) the removal from the Board of the Designee or Designees so designated for removal; and (b) the election to the Board of any new Designee or Designees so designated. The Voting Parties shall also take all actions to remove from the Board any person that may have been elected as a “Series A Director”.

3.5 Removal of Common Director. Any vacancy created by the resignation, removal or death of a director elected pursuant to Section 3.2 above shall be filled pursuant to the provisions of Section 3.2.

3.6 Size of the Board of Directors. During the term of this Agreement, each Voting Party agrees to vote all Shares to maintain the authorized number of members of the Board at five directors; provided, however, that authorized number of members of the Board may be subsequently increased or decreased by amending or restating the Restated Certificate in accordance with the Delaware General Corporation Law and pursuant to an amendment of this Agreement in accordance with Section 8.11.

3.7 No Liability for Election of Recommended Director. Subject to Section 3.8, none of the Voting Parties and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement.

3.8 No “Bad Actor” Disqualification.

(a) Each Voting Party represents and warrants that:

 

  (i)

neither it nor any beneficial owner of the Company’s voting equity securities (in accordance with Rule 506(d) of the Securities Act) held by such party (“Beneficial Owner”) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act (“Disqualification Events”) or (d)(3) under the Securities Act and disclosed in writing in reasonable detail to the Company and the other parties to this Agreement; and

 

  (ii)

it has provided the Company and the other parties to this Agreement with any and all information reasonably requested by the Company or otherwise necessary for the Company to determine, in the exercise of reasonable care, whether any such Designee is subject to any Disqualification Event; and

 

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(b) Each Voting Party agrees to exercise reasonable care to determine whether any of its Designees or potential Designees or any Beneficial Owner is subject to any Disqualification Event, and shall promptly provide the Company and the other parties to this Agreement with any and all information reasonably requested by the Company or otherwise necessary for the Company to determine, in the exercise of reasonable care, whether any Designee or potential Designee or Beneficial Owner is subject to any Disqualification Event. Each party to this Agreement agrees that it will not select a Designee that is subject to any Disqualification Event. Each party to this Agreement will promptly notify each other party to this Agreement in writing if it, any Beneficial Owner or, to its knowledge, any of its Designees or potential Designees is subject to any Disqualification Event.

(c) Notwithstanding any other provision in this Agreement to the contrary, no Voting Party shall be required to vote to elect (or maintain in office) any person that is subject to a Disqualification Event.

(d) From time to time during the term of this Agreement, any Voting Party or the Company may request the removal of a director that is subject to any Disqualification Event by written notice to the other parties to this Agreement specifying, in reasonable detail, the Disqualification Event. If the Company reasonably determines that the director is subject to a Disqualification Event:

 

  (i)

the Company shall promptly notify each other party to this Agreement and take such reasonable actions as are necessary to facilitate such removal, including, without limitation, soliciting the votes of the appropriate stockholders; and

 

  (ii)

the Voting Parties shall vote their Shares to cause the removal from the Board of the director.

SECTION 4

DRAG-ALONG RIGHTS

4.1 Drag-Along Rights. If (i) the Board, (ii) an Investor Majority and (iii) the holders of a majority of the Common Stock (excluding shares of Common Stock issued upon conversion of Preferred Stock) held by the Voting Parties, each approve a Change of Control Transaction, each of the Voting Parties agrees (i) to vote all shares held by such Voting Party in favor of such Change of Control Transaction, and (ii) to sell or exchange all shares of Capital Stock then held by such Voting Party pursuant to the terms and conditions of such Change of Control Transaction, subject to the following conditions:

(a) such Voting Party receives with respect to his, her or its Shares of a class or series of Capital Stock consideration per share that is no less than every other Voting Party participating in the transaction with respect to his, her or its Shares of the same class or series of Capital Stock;

(b) the proceeds payable to such Voting Party in connection with such transaction are equal to or greater than the proceeds required to be paid to such Voting Party pursuant to Article V(3)(a) of the Restated Certificate;

(c) the maximum liability of such Voting Party in connection with such transaction is several and not joint with any other person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to, and does not exceed the consideration payable to such Voting Party in such transaction (other than in the case of potential liability for such Voting Party for fraud or intentional misrepresentation for which liability need not be subject to such limitation);

 

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(d) the ratio of such Voting Party’s liability for breaches of representations, warranties, covenants or other obligations of the Company in connection with such Change of Control Transaction of the Company to the total consideration paid to such Voting Party in the Change of Control Transaction of the Company shall not exceed such ratio with respect to any other Voting Party;

(e) if any holder of Capital Stock is given an option as to the form and amount of consideration to be received as a result of the Change of Control Transaction, such Voting Party shall have also been given such option; provided, that if the consideration to be paid in exchange for the Shares in such Change of Control Transaction includes any securities and due receipt thereof by any Voting Party would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Voting Party of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Voting Party in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Voting Party, an amount in cash equal to the fair value (as determined in good faith by the Company) of the securities which such Voting Party would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and

(f) the terms of such transaction applicable to such Voting Party are materially no less favorable than the terms applicable to each other Voting Party holding the same class or series of Shares as such Voting Party.

4.2 Restrictions on Stock Sales. No Voting Party shall be a party to any Stock Sale (other than a Stock Sale approved by the requisite parties pursuant to Section 4.1) unless all holders of Preferred Stock are allowed to participate in such transaction and the consideration received pursuant to such transaction is allocated among the parties thereto in the manner specified in the Restated Certificate in effect immediately prior to such Stock Sale (as if such transaction were a “Liquidation Event” thereunder), unless the holders of at least a majority of the voting power of the Preferred Stock elect otherwise by written notice given to the Company prior to the effective date of any such transaction or series of related transactions.

SECTION 5

TERMINATION

5.1 Termination. This Agreement shall terminate upon the earliest of (i) the conversion of all outstanding shares of the Company’s preferred stock into Common Stock; (ii) a Change of Control Transaction; and (iii) the agreement of both a Key Holder Majority and an Investor Majority, acting separately.

SECTION 6

ADDITIONAL SHARES

6.1 Additional Shares. If subsequent to the date of this Agreement any shares or other securities (other than pursuant to a Change of Control Transaction) are issued on, or in exchange for, any of the Shares by reason of any stock dividend, stock split, consolidation of shares, reclassification or consolidation involving the Company, such shares or securities shall be deemed to be Shares for purposes of this Agreement.

 

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SECTION 7

RESTRICTIVE LEGEND

7.1 Restrictive Legend. Each certificate representing any of the Shares subject to this Agreement shall be marked by the Company with a legend reading substantially as follows:

THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER), AND BY ACCEPTING ANY INTEREST IN SUCH SHARES THE PERSON HOLDING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING AGREEMENT.

SECTION 8

MISCELLANEOUS

8.1 Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, sent by facsimile or electronic mail (if to a Voting Party) or otherwise delivered by hand, messenger or courier service addressed:

(a) if to a Voting Party, to the Voting Party’s address, facsimile number or electronic mail address as shown in the exhibits to this Agreement or in the Company’s records, as may be updated in accordance with the provisions hereof, or, until any such Voting Party so furnishes an address, facsimile number or electronic mail address to the Company, then to the address, facsimile number or electronic mail address of the last holder of the relevant Shares for which the Company has contact information in its records; or

(b) if to the Company, to the attention of the Chief Executive Officer or Chief Financial Officer of the Company at 101 W. 23rd Street, Suite 224, New York, NY 10011, or at such other current address as the Company shall have furnished to the Voting Parties, with a copy (which shall not constitute notice) to Melissa Rick, Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Rd, Palo Alto, CA 94304.

(c) Each such notice or other communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand, messenger or courier service, when delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid, specifying next-business-day delivery, one business day after deposit with the courier), or (ii) if sent via mail, at the earlier of its receipt or five days after the same has been deposited in a regularly-maintained receptacle for the deposit of the United States mail, addressed and mailed as aforesaid, or (iii) if sent via facsimile, upon confirmation of facsimile transfer or, if sent via electronic mail, upon confirmation of delivery when directed to the relevant electronic mail address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day. In the event of any conflict between the Company’s books and records and this Agreement or any notice delivered hereunder, the Company’s books and records will control absent fraud or error.

Subject to the limitations set forth in Delaware General Corporation Law §232(e), each Voting Party consents to the delivery of any notice to stockholders given by the Company under the Delaware General Corporation Law or the Company’s certificate of incorporation or bylaws by (i) facsimile telecommunication to the facsimile number set forth in the exhibits to this Agreement (or to any other facsimile number for the

 

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Voting Party in the Company’s records), (ii) electronic mail to the electronic mail address set forth in the exhibits to this Agreement (or to any other electronic mail address for the Voting Party in the Company’s records), (iii) posting on an electronic network together with separate notice to the Voting Party of such specific posting or (iv) any other form of electronic transmission (as defined in the Delaware General Corporation Law) directed to the Voting Party. This consent may be revoked by a Voting Party by written notice to the Company and may be deemed revoked in the circumstances specified in Delaware General Corporation Law §232.

8.2 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties. The Company shall not permit the transfer of any Shares on its books or issue a new certificate representing any Shares unless and until the person to whom such security is to be transferred shall have executed a written agreement pursuant to which such person becomes a party to this Agreement and agrees to be bound by all the provisions hereof as if such person was a Voting Party hereunder.

8.3 Additional Parties. Following the date of this Agreement, the Company agrees to use commercially reasonable efforts to cause each person (other than an Investor) who comes to hold at least 1% of the shares of Common Stock (assuming full conversion of the Preferred Stock and full conversion or exercise of all outstanding convertible securities, rights, options and warrants and all securities reserved for issuance under the Company’s stock plans) to become a party to this Agreement and be deemed a “Key Holder” hereunder and no amendment of this Agreement pursuant to this paragraph or any consent or approval of any other Investor or Key Holder shall be required as a condition to such Key Holder’s execution and delivery of an additional counterpart signature page to this Agreement.

8.4 Governing Law. This Agreement shall be governed in all respects by the internal laws of the State of Delaware as applied to agreements entered into among Delaware residents to be performed entirely within Delaware, without regard to principles of conflicts of law.

8.5 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All references in this Agreement to sections, paragraphs and exhibits shall, unless otherwise provided, refer to sections and paragraphs hereof and exhibits attached hereto.

8.6 Further Assurances. Each party agrees to execute and deliver, by the proper exercise of its corporate, limited liability company, partnership or other powers, all such other and additional instruments and documents and do all such other acts and things as may be necessary to more fully effectuate this Agreement.

8.7 Entire Agreement. This Agreement and the exhibits hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof. No party shall be liable or bound to any other party in any manner with regard to the subjects hereof or thereof by any warranties, representations or covenants except as specifically set forth herein.

8.8 No Grant of Proxy. This Agreement does not grant any proxy and should not be interpreted as doing so. Nevertheless, should the provisions of this Agreement be construed to constitute the granting of proxies, such proxies shall be deemed coupled with an interest and are irrevocable for the term of this Agreement.

8.9 Not a Voting Trust. This Agreement is not a voting trust governed by Section 218 of the Delaware General Corporation Law and should not be interpreted as such.

 

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8.10 Specific Performance. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of this Agreement by any party, that this Agreement shall be specifically enforceable, and that any breach or threatened breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each party waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.

8.11 Amendment. Except as expressly provided herein, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument referencing this Agreement and signed by (i) the Company, (ii) a Key Holder Majority and (iii) an Investor Majority; provided, however, that Investors purchasing Shares under the Purchase Agreement after the Initial Closing (as defined in the Purchase Agreement) may become parties to this Agreement without any amendment of this Agreement pursuant to this paragraph or any consent or approval of any other Voting Party; and provided, further, that if any amendment, waiver, discharge or termination operates in a manner that treats any Key Holder or Investor different from other Key Holders or Investors, as the case may be, the consent of such Key Holder or Investor shall also be required for such amendment, waiver, discharge or termination. Any such amendment, waiver, discharge or termination effected in accordance with this paragraph shall be binding upon each Voting Party that has entered into this voting agreement. For purposes of this Section 8.11, the requirement of a written instrument may be satisfied in the form of an action by written consent of the stockholders circulated by the Company and executed by the Voting Parties specified, whether or not such action by written consent makes explicit reference to the terms of this Agreement.

8.12 No Waiver. The failure or delay by a party to enforce any provision of this Agreement will not in any way be construed as a waiver of any such provision or prevent that party from thereafter enforcing any other provision of this Agreement. The rights granted both parties hereunder are cumulative and will not constitute a waiver of either party’s right to assert any other legal remedy available to it.

8.13 Jurisdiction and Venue. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of, and venue in, the state courts in New York (or in the event of exclusive federal jurisdiction, the courts of the Southern District of New York).

8.14 Severability. If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Agreement, and such court will replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance of this Agreement shall be enforceable in accordance with its terms.

8.15 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Facsimile copies of signed signature pages will be deemed binding originals.

8.16 Telecopy Execution and Delivery. A facsimile, telecopy or other reproduction of this Agreement may be executed by one or more parties hereto and delivered by such party by facsimile, PDF, DocuSign or any similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen. Such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute and deliver an original of this Agreement as well as any facsimile, telecopy or other reproduction hereof.

 

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8.17 Jury Trial. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT.

(signature page follows)

 

-10-


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

 

COMPANY:
HIRO SYSTEMS PBC
By:  

/s/ Alex Miller

Name: Alex Miller
Title:   Chief Executive Officer

[Signature Page to the Amended and Restated Voting Agreement]


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

INVESTOR:

[***]

[Signature Page to the Amended and Restated Voting Agreement]


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

INVESTOR:

[***]

[Signature Page to the Amended and Restated Voting Agreement]


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

KEY HOLDER:

[***]

[Signature Page to the Amended and Restated Voting Agreement]


IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

KEY HOLDER:

[***]

[Signature Page to the Amended and Restated Voting Agreement]


Exhibit A

INVESTORS

[***]


Exhibit B

KEY HOLDERS

[***]



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