Form 8-K
8-K — JFB Construction Holdings
Accession: 0001493152-26-033558
Filed: 2026-07-16
Period: 2026-07-16
CIK: 0002024306
SIC: 1540 (GENERAL BUILDING CONTRACTORS - NONRESIDENTIAL BUILDINGS)
Item: Entry into a Material Definitive Agreement
Item: Financial Statements and Exhibits
Documents
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of Report (Date of earliest event reported): July 16, 2026
JFB
CONSTRUCTION HOLDINGS
(Exact
name of registrant as specified in its charter)
Nevada
001-42538
99-2549040
(State
or other jurisdiction
(Commission
(IRS
Employer
of
incorporation)
File
Number)
Identification
No.)
1300
S. Dixie Highway, Suite B
Lantana,
FL 33462
(Address
of principal executive offices) (Zip Code)
561-582-9840
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☒
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol
Name
of each exchange on which registered
Class
A Common Stock, $0.0001 par value
JFB
The
Nasdaq Stock Market LLC
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).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01. Entry into a Material Definitive Agreement.
Amendment
to Merger Agreement
On
July 16, 2026, JFB Construction Holdings (the “Company” or “JFB”), Xtend AI Robotics, Inc., a Delaware corporation
(“Newco”), XT Merger Sub 2, Inc., a Nevada corporation and a direct, wholly-owned subsidiary of Newco (“Merger Sub
2”), and Xtend Reality Expansion Ltd., a company organized under the laws of the State of Israel (“Xtend”), entered
into an Amendment (the “Amendment”) to the Agreement and Plan of Merger dated February 13, 2026 (as amended on March 21,
2026, the “Merger Agreement”) by and among the Company, Newco, Merger Sub 2, and Xtend, pursuant to which (i) an Israeli
shell company formed by Newco prior to the closing of the transactions contemplated by the Merger Agreement under the laws of the State
of Israel as a direct, wholly-owned subsidiary of Newco will merge with and into Xtend (the “Xtend Merger”) with Xtend surviving
as a direct, wholly-owned subsidiary of Newco and (ii) immediately after the Xtend Merger, Merger Sub 2 will merge with and into the
Company (the “Company Merger” and together with the Xtend Merger, the “Mergers”) with the Company surviving as
a direct, wholly-owned subsidiary of Newco (the transactions described in the foregoing, collectively, the “Transactions”).
The
Amendment amends the Merger Agreement to, among other things, (i) shorten the timeframe pursuant to which Xtend shall deliver to Newco
the consideration schedule (the “consideration schedule”) setting forth the number of shares of Newco common stock shares
of Newco common stock that each outstanding share of Xtend will convert into from five to three business days, (ii) shorten the timeframe
pursuant to which the Company shall deliver to Xtend certain Company cash and capitalization info in connection with Xtend’s preparation
of the considerations schedule from seven to five business days, (iii) add a provision restricting Newco, for six months following the
Closing (as defined in the Merger Agreement), from issuing shares of Newco common stock in a capital raise or similar financing at a
price of less than $6.00 per share, (iv) update the definition of “Closing Cash” to be the sum of Pubco’s balance of
cash immediately prior to the Closing and the aggregate amount of cash held at least five business days prior to the Closing by an escrow
account or trust account, subject to certain conditions regarding withdrawal and release of such funds, (v) lower the “Closing
Cash” minimum condition threshold to $60,000,000 from $110,000,000, (vi) extend the outside date for the closing under the Merger
Agreement to October 31, 2026, subject to up to two three-month extensions in certain circumstances, (vii) replace references to “NASDAQ”
in the Merger Agreement with “NYSE,” and (viii) amend and restate the form of post-Closing Newco amended and restated bylaws
in their entirety (the “A&R Bylaws”), as further described below.
Concurrently
with execution of the Amendment, an amended and restated Pubco Investor Support Agreement (the “A&R Support Agreement”),
was executed by Xtend and American Ventures LLC, Series XIV JFB (the “Shareholder”). Under the A&R Support Agreement,
among other things, (a) the Shareholder agreed to (i) certain transfer restrictions on its shares of the Company’s capital stock
prior to obtaining the requisite stockholder approval, (ii) a 180-day lock-up period following the closing of the Transactions with respect
to shares of Newco common stock issued in connection with the Transactions (subject to certain exceptions, including transfers that do
not exceed a specified volume limitation and are made at a price above a specified minimum price of $3.10 per share), (iii) vote its
shares in favor of the transactions contemplated by the Merger Agreement, (iv) deliver a notice of exercise of its outstanding warrants
to purchase shares of the Company’s Class A common stock and fund the aggregate exercise price into escrow at least seven business
days prior to the Closing, (b) Newco agreed not to waive, amend, or repeal the lock-up restrictions applicable to other stockholders
under the A&R Bylaws without the Shareholder’s prior written consent, and (c) the parties agreed that unexercised warrants
held by the Shareholder at Closing shall be deemed cashless exercised at a value of $6.3391 per share of the Company’s Class A
common stock, subject to a cap of 6,999,928 shares of Newco common stock. The exercise of such warrants at Closing by the Shareholder
is expected to satisfy the “Closing Cash” condition set forth in the Merger Agreement, as amended by the Amendment.
The
Amendment also provides that the A&R Bylaws will become effective upon Closing. Among other things, the A&R Bylaws (a) add a
new lock-up provision restricting the transfer of shares of Newco common stock issued in connection with the Transactions (other than
certain excluded shares) for a lock-up period beginning on the closing date and ending 270 days thereafter, subject to (i) customary
exceptions, including transfers for estate planning purposes, transfers to affiliates, transfers in connection with a subsequent liquidation,
merger, stock exchange or similar transaction, and transfers approved by the board of directors of Newco, and (ii) a coordinated sale
process permitting limited sales of locked-up shares through one or more designated brokers following the initial 180-day portion of
the lock-up period, subject to a periodic sales limitation of 25% of a holder’s base holdings per 30-day measurement period and
(b) provide that the board of directors of Newco may waive, amend, or repeal these lock-up restrictions, subject to any written agreement
entered into by Newco imposing limitations thereon (including the A&R Support Agreement), provided that any such waiver, amendment,
repeal, or release is applied on a pro rata or other uniform basis among holders of locked-up shares. Such lock-up restrictions do not
apply to shares of Newco common stock held by the Shareholder or its affiliates and transferees, whose transfer restrictions are instead
governed exclusively by the A&R Support Agreement..
Except
as modified by the Amendment, the terms of the Merger Agreement, in the form filed by the Company as Exhibit 2.1 to the Current Report
on Form 8-K filed by the Company on February 13, 2026 with the U.S. Securities and Exchange Commission (the “SEC”) and as
Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on March 24, 2026 with the SEC, are unchanged.
The
foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text
of the Amendment, which is attached hereto as Exhibit 2.1 and is incorporated by reference herein.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No.
Description
2.1
Amendment No. 2 to Agreement and Plan of Merger, dated as of July 16, 2026, by and among JFB Construction Holdings, Xtend AI Robotics, Inc., XT Merger Sub 2, Inc. and Xtend Reality Expansion Ltd.*
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document).
*
Certain schedules, annexes and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant will furnish copies
of any such schedules, annexes and exhibits to the SEC upon request.
Cautionary
Statement Regarding Forward-Looking Statements
This
communication contains, and oral statements made from time to time by our representatives may contain, forward-looking statements within
the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the “Securities
Act”), and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements generally include statements
regarding the potential Transactions between Xtend and JFB, including statements regarding the expected impacts and benefits of the potential
Transactions, timing of the closing of the Transactions, and strategic initiatives for Newco following the closing. All statements other
than statements of historical facts contained in this communication may be forward-looking statements. In some cases, you can identify
forward-looking statements by terms such as “may,” “will,” “outlook”, “should,” “expects,”
“plans,” “anticipates,” “could,” “intends,” “targets,” “projects,”
“contemplates,” “believes,” “estimates,” “predicts,” “potential” or “continue”
or the negative of these terms or other similar expressions. The forward-looking statements in this communication are only predictions.
Xtend’s and JFB’s management have based these forward-looking statements largely on their current expectations and projections
about future events and financial trends that management believes may affect its business, financial condition and results of operations.
These statements are neither promises nor guarantees and involve known and unknown risks, uncertainties and other important factors that
may cause actual results, performance or achievements to be materially different from what is expressed or implied by the forward-looking
statements, including, but not limited to: the Transactions may not be consummated; there may be difficulties with the integration and
in realizing the expected benefits of the Transactions; Xtend and JFB may need to use resources that are needed in other parts of its
business to do so; there may be liabilities that are not known, probable or estimable at this time; the Transactions may result in the
diversion of management’s time and attention to issues relating to the Transactions and integration; expected synergies and operating
efficiencies attributable to the Transactions may not be achieved within its expected time-frames or at all; there may be significant
transaction costs and integration costs in connection with the Transactions; the possibility that JFB will not have sufficient cash at
close to satisfy the minimum cash condition; unfavorable outcome of legal proceedings that may be instituted against JFB and Xtend following
the announcement of the Transactions; risks inherent to the business may result in additional strategic and operational risks, which
may impact Xtend’s, Newco’s and JFB’s risk profiles, which each company may not be able to mitigate effectively; JFB’s
ability to complete construction projects or other transactions on schedule and budget; changes in weather and occurrence of natural
disasters and pandemics; recent imposition of tariffs by governments on construction materials, such as steel, aluminum and lumber; disruptions
in supply chains; increase in the cost of labor and construction materials; JFB’s ability to maintain safe work sites; Xtend’s
dependence on a limited number of defense and governmental security customers for a substantial portion of its business; significant
delays or reductions in appropriations, Xtend’s programs and certain government fundings and programs more broadly, including as
a result of a prolonged continuing resolution and/or government shutdown, and/or related to the global security environment or other
global events; increased competition within JFB’s and Xtend’s markets and bid protests; changes in procurement and other
U.S. and foreign laws, including changes through executive orders, contract terms and practices applicable to our industry, findings
by certain applicable governments as to our compliance with such requirements, more aggressive enforcement of such requirements and changes
in Xtend’s customers’ business practices globally; the improper conduct of employees, agents, subcontractors, suppliers,
business partners or joint ventures in which Xtend participates, including the impact on Xtend’s reputation and its ability to
do business; cyber and other security threats or disruptions faced by Xtend and JFB, its customers or its suppliers and other partners,
and changes in related regulations; and Xtend’s ability to innovate, develop new products and technologies, progress and benefit
from digital transformation and maintain technologies to meet the needs of Xtend’s customers. In addition, a number of important
factors could cause JFB’s, Xtend’s or Newco’s actual future results and other future circumstances to differ materially
from those expressed in any forward-looking statements, including but not limited to those important factors that will be discussed in
the section entitled “Risk Factors” in the registration statement on Form S-4 filed by JFB and Newco, as any such factors
may be updated from time to time in other filings with the SEC, including without limitation Xtend’s investor relations site at
https://www.xtend.me/newsroom and JFB’s investor relations site at https://investors.jfbconstruction.net/. Forward-looking statements
speak only as of the date they are made and, except as may be required under applicable law, neither Xtend nor JFB undertakes any obligation
to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
Important
Information for Investors and Stockholders
This
communication is for informational purposes only and is not intended to, and 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 issuance or 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. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section
10 of the Securities Act. In connection with the Transactions, Newco and JFB filed a registration statement on Form S-4, which will include
an information statement of JFB and a preliminary prospectus of Newco. After the registration statement is declared effective, JFB will
mail to its stockholders a definitive information statement that will form part of the registration statement. This communication is
not a substitute for the information statement/prospectus or registration statement or for any other document that JFB may file with
the SEC and send to its stockholders in connection with the Transactions. INVESTORS AND SECURITY HOLDERS OF XTEND AND JFB ARE URGED TO
READ THE INFORMATION STATEMENT/PROSPECTUS OR REGISTRATION STATEMENT AND ANY OTHER DOCUMENT THAT WILL BE FILED WITH THE SEC CAREFULLY
AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will
be able to obtain free copies of the information statement/prospectus (when available) and other documents filed with the SEC by JFB
through the website maintained by the SEC at http://www.sec.gov. Copies of the documents filed with the SEC by JFB will be available
free of charge on JFB’s website at https://investors.jfbconstruction.net/.
SIGNATURES
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.
JFB
CONSTRUCTION HOLDINGS
Date:
July 16, 2026
By:
/s/
Joseph F. Basile III
Joseph
F. Basile III
Chief
Executive Officer
EX-2.1
EX-2.1
Filename: ex2-1.htm · Sequence: 2
Exhibit 2.1
Annex
A-3
Execution
Version
SECOND
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This
SECOND AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this “Second Amendment”),
dated as of July 16, 2026, is made by and among Xtend AI Robotics, Inc., a Delaware corporation (“Newco”), XT Merger
Sub 2, Inc., a Nevada corporation and a direct, wholly-owned subsidiary of Newco (“Merger Sub 2”), JFB Construction
Holdings, a Nevada corporation (“Pubco”), and XTEND Reality Expansion Ltd., a company organized under the laws of
the State of Israel (the “Company”). Capitalized terms used and not otherwise defined herein have the meanings set
forth in that certain Agreement and Plan of Merger, dated February 13, 2026, by and among Newco, Merger Sub 2, Pubco, and the Company,
as amended by that Amendment to Agreement and Plan of Merger dated March 21, 2026 (collectively, the “Merger Agreement”).
WHEREAS,
pursuant to Section 9.1 of the Merger Agreement, the Merger Agreement may be amended, modified and supplemented by written agreement
signed on behalf of each of the Parties;
WHEREAS,
the Parties desire to amend the Merger Agreement as set forth below; and
WHEREAS,
in connection with this Second Amendment, the parties to the Pubco Investor Support Agreement have entered into the Amended and
Restated Pubco Investor Support Agreement (as defined below).
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained herein, and with reference to the above recitals, the parties
hereby agree as follows:
ARTICLE 1
AMENDMENTS
TO MERGER AGREEMENT
1.1 Section
2.1(a)(i) of the Merger Agreement. Section 2.1(a)(i) of the Merger Agreement is hereby amended and restated in its entirety to read
as follows:
“(i)
At the Company Effective Time, by virtue of the Company Merger and without any action on the part of Newco, Merger Sub 1, the Company,
or any holder of any securities of Newco, Merger Sub 1 or the Company, each share of the Company (the “Company Shares”)
issued and outstanding immediately prior to the Company Effective Time (excluding Company Cancelled Shares, but including, for the avoidance
of doubt, shares issued or underlying the SAFE 2), shall be converted into and shall for all purposes represent only the right to receive
the number of Newco Common Stock (the “Company Merger Consideration”) as set forth on the schedule to be initially
delivered by the Company to Newco not less than three (3) Business Days prior to the Closing in accordance with Section 6.22 (the “Company
Consideration Schedule”).”
1.2 Section
6.22 of the Merger Agreement. Section 6.22 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:
“Section
6.22 Company Consideration Schedule. The Company shall initially deliver the Company Consideration Schedule to Pubco not less
than three (3) Business Days prior to the Closing, which will be based on, among other things, the Company’s good faith assessment
of the following information delivered by Pubco to the Company not less than five (5) Business Days prior to the Closing: (a) estimated
Closing Cash, (b) bringdown capitalization information consistent with that provided pursuant to Section 4.2 and (c) details regarding
all Pubco shares issued in connection with the Post-Signing Equity Financing Amount (the “Pubco Information”) (it
being agreed and understood that the parties will discuss in good faith comments that the Company may have on the Pubco Information).
The Company Consideration Schedule shall reflect the allocation of the Merger Consideration among the classes of Company Shares and Company
Options pursuant to the following allocation principles: (i) such allocation will be in compliance with the requirements of the Articles
of Association; and (ii) such allocation will result in a number of shares of Newco Common Stock being issued or reserved for issuance
to the holders of Company Shares and Company Options pursuant to Section 2.1(a) and Section 2.3(c) equal to the sum of
(i) 228,510,000 plus (ii) the Adjustment Amount (such sum, the “Base Share Issuance Amount”) (other than with respect
to holders of Company Shares and Company Options issued or granted pursuant to transactions described in Section 5.1(iv) and Section
5.1(v) of the Company Disclosure Letter). For the avoidance of doubt, any Company Shares or Company Options issued or granted pursuant
to transactions described in Section 5.1(iv) and Section 5.1(v) of the Company Disclosure Letter shall be converted pro
rata pursuant to Section 2.1(a) or Section 2.3(c), as applicable, into incremental shares of Newco Common Stock beyond
the Base Share Issuance Amount referenced above, in such manner that the Newco shareholders and Pubco Stockholders shall share in the
dilution based on the Ratio. Pubco shall have two (2) Business Days after it receives the Company Consideration Schedule to provide comments
the Company Consideration Schedule, and the Company shall consider such comments in good faith. In addition, if the Adjustment Amount
set forth on the Company Consideration Schedule is greater than zero, then Pubco shall deliver actual Pubco Information as of Closing
no later than one Business Day after Closing, and the Company will update the Company Consideration Schedule based on its good faith
assessment of such updated information, which update will constitute the final Company Consideration Schedule.”
1.3 A new Section 6.23 shall be added to the Merger Agreement as follows:
“Section
6.23 Capital Raises Post-Closing. For a period of six (6) months following the Closing, Newco agrees not to issue, or agree to
issue, any shares of Newco Common Stock (or any other securities which are exercisable or exchangeable for, or convertible into, shares
of Newco Common Stock) in connection with a capital raise or similar financing at a price per share (or effective price per share) of
Newco Common Stock of less than $6.00 per share.”
1.4 Section
7.3(f) of the Merger Agreement. Section 7.3(f) of the Merger Agreement is hereby amended and restated in its entirety to read as
follows:
“(f)
Minimum Available Closing Cash. The Closing Cash shall equal at least $60,000,000.
1.5 Section
8.1(b)(ii) of the Merger Agreement. Section 8.1(b)(ii) of the Merger Agreement is hereby amended and restated in its entirety to
read as follows:
“(ii)
if the Closing has not occurred on or before October 31, 2026 (the “Outside Date”); provided that if as of
such date the conditions set forth in Section 7.1(d) or Section 7.1(e) (to the extent relating to any Regulatory Law) shall not have
been satisfied or waived, but all of the other conditions set forth in Article VII have been satisfied or waived (or are then capable
of being satisfied if the Closing were to take place on such date in the case of those conditions to be satisfied at the Closing), then
either of Pubco or the Company may, in its sole discretion, extend the Outside Date on up to three months, by providing the other Party
with written notice thereof on or before the then effective Outside Date (and such date, as so extended, shall be the Outside Date),
it being agreed that there shall be no more than two extension pursuant to this proviso in the aggregate for all Parties; provided,
however, that the right to terminate this Agreement pursuant to this Section 8.1(b)(ii) shall not be available to any Party whose
action or failure to fulfill any obligation under this Agreement has been the principal cause of the failure of the Transactions to be
consummated by the Outside Date; or”
1.6 Amendment to Annex A of the Merger Agreement.
1.6.1 The following definitions are hereby added to Annex A:
(a) “Closing
Cash” means an amount in cash equal to the sum of (a) Pubco’s balance of cash immediately prior to the Closing and (b)
the aggregate amount of cash (the “Available Funds”) held at least five (5) Business Days prior to the Closing by
an escrow account or trust account established and maintained by an escrow agent or trustee pursuant to the terms and conditions of an
escrow agreement or trust agreement that provides (to the reasonable satisfaction of the Company) that (i) the Available Funds cannot
be withdrawn without the prior written consent of the Company and (ii) the Available Funds shall be available for release at the Closing
to PubCo or the Company based on the Company’s unilateral instruction to the escrow agent or trustee, as applicable.
(b) “NYSE” means the New York Stock Exchange.
A-3-2
1.7 The following definition is hereby deleted from Annex A:
(a)
“NASDAQ” means the National Association of Securities Dealers Automated Quotations.
1.8 NYSE.
Every instance of the term “NASDAQ” in the Merger Agreement shall be removed and replaced with the term “NYSE.”
1.9 Amendment
to the Pubco Investor Support Agreement. Annex C-1 of the Merger Agreement is hereby amended and restated in its entirety to constitute
Exhibit 1 to this Amendment (the “Amended and Restated Pubco Investor Support Agreement”).
1.10 Amendment
to the Newco A&R Bylaws. Annex G of the Merger Agreement is hereby amended and restated in its entirety to constitute Exhibit
2 to this Amendment.
ARTICLE
2
GENERAL
PROVISIONS
2.1 Continuing
Effectiveness. Except as expressly modified by this Second Amendment, the Merger Agreement shall remain in full force and effect
and no party by virtue of entering into this Second Amendment is waiving any rights it has under the Merger Agreement, and once this
Second Amendment is executed by the parties hereto, all references in the Merger Agreement to “this Agreement” shall refer
to the Merger Agreement as modified by this Second Amendment.
2.2 Miscellaneous.
This Amendment shall be subject to the terms and conditions of Article IX of the Merger Agreement, mutatis mutandis.
2.3 Counterparts.
This Amendment may be executed in one or more counterparts, any one of which need not contain the signature of more than one (1) party,
but all such counterparts taken together shall constitute one and the same instrument.
[Signature Page Follows]
A-3-3
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the
date first written above.
XTEND AI ROBOTICS, INC.
By
/s/ Aviv
Shapira
Name:
Aviv Shapira
Title:
Chief Executive
Officer
XTEND REALITY EXPANSION LTD.
By
/s/ Aviv
Shapira
Name:
Aviv Shapira
Title:
Chief Executive
Officer
XT MERGER SUB 2, INC.
By
/s/ Aviv
Shapira
Name:
Aviv Shapira
Title:
Chief Executive
Officer
A-3-4
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the
date first written above.
JFB CONSTRUCTION HOLDINGS
By
/s/ Joseph
F. Basile III
Name:
Joseph
F. Basile III
Title:
Chief Executive
Officer
A-3-5
Exhibit
1
Pubco
Investor Support Agreement
A-3-6
Execution
Version
PUBCO
STOCKHOLDER AMENDED AND RESTATED SUPPORT AGREEMENT
THE
SUPPORT AGREEMENT (the “Agreement”) was made and entered into as of February 13, 2026, by and among XTEND Reality
Expansion Ltd., a company organized under the laws of the State of Israel (the “Company”), and American Ventures LLC,
Series XIV JFB (the “Shareholder”). The Agreement is to be amended and restated by the Parties (as defined below)
and, solely with respect to Section 4.4 hereof, JFB Construction Holdings, a Nevada corporation (“Pubco”), on and
effective as of July 16, 2026 (as amended and restated, this “A&R Agreement”). The Company and the Shareholder
are each sometimes referred to herein as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS,
concurrently with the execution of the Agreement, the Company, Pubco, Xtend AI Robotics, Inc., a Delaware corporation (“Newco”),
and XT Merger Sub 2, Inc., a Nevada corporation and direct, wholly-owned subsidiary of Newco (“Merger Sub 2”), entered
into an Agreement and Plan of Merger (as the same may be amended from time to time, the “Merger Agreement”), pursuant
to which, among other things, (i) Merger Sub 2 will be merged with and into Pubco, with Pubco surviving as a direct, wholly-owned subsidiary
of Newco (the “Pubco Merger”), and (ii) immediately after the Pubco Merger, Merger Sub 1 will be merged with and into
the Company (the “Company Merger” and together with the Pubco Merger, the “Mergers”), with the
Company surviving as a direct, wholly-owned subsidiary of Newco;
WHEREAS,
concurrently with the execution of this A&R Agreement, Pubco, Newco, Merger Sub 2 and Merger Sub 1 are entering into an amendment
to the Merger Agreement (the “Amendment”), which, among other things, shall reduce the minimum available closing cash
condition to close the Mergers and PubCo and the Shareholder are amending certain warrants previously issued to the Shareholder (the
“Pubco Warrants”) to provide for the cashless exercise thereof to purchase shares of Pubco common stock (such shares
issuable upon cashless exercise, the “Cashless Exercise Shares”);
WHEREAS,
as of the date hereof, the Shareholder is the record and beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the number
of shares of Class A Common Stock of Pubco, Class B Common Stock of Pubco, and Preferred Stock of Pubco (collectively, “Pubco
Shares”), set forth on Schedule A (all such Pubco Shares, together with any Pubco Shares that are hereafter issued to
the Shareholder in connection with an Adjustment prior to the Expiration Time or otherwise acquired by the Shareholder prior to or in
connection with the Pubco Merger (the “After-Acquired Shares”), being referred to herein as the “Covered
Shares”), provided, however, that, when used with respect to voting or consenting by or in the name of the Shareholder
or any other Person acting on the Shareholder’s behalf hereunder with respect to Pubco Shares, the term “Covered Shares”
shall only include the securities that are entitled to be voted (in a particular general or class vote of the shareholders), or for which
the Shareholder or any other Person acting on the Shareholder’s behalf is entitled to consent (in a particular general or class
vote of the shareholders), with respect thereto (which, for the avoidance of doubt, shall not include unissued Pubco Shares that are
subject to future issuance upon the exercise of options to acquire Pubco Shares or, with respect to unissued Pubco Shares that are subject
to future issuance upon the exercise of the Pubco Warrants, any unissued Pubco Shares that are not available to be converted or exercised
pursuant to the “blocker” provisions of the Pubco Warrants), and nothing herein shall affirmatively require (and the Shareholder
undertakes no obligation or makes no representation or warranty related to) the conversion, exercise or exchange of any security into
securities entitled to be voted (in a particular general or class vote of the shareholders), or for which the Shareholder is entitled
to consent or act (in a particular general or class vote of the shareholders), with respect thereto; and
WHEREAS, as a condition to the willingness of the Company to proceed
with the transactions contemplated by the Merger Agreement, and as a material inducement and in consideration therefor, the Shareholder
has entered into this A&R Agreement.
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NOW,
THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties, intending to be legally bound, agree
as follows:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
As used in this A&R Agreement, the following terms have the meanings set forth below:
“Adjustment”
means any stock (or share) split (including a reverse stock (or share) split), stock (or share) dividend or distribution, merger, reorganization,
recapitalization, reclassification, combination, exchange of shares or similar transaction with respect to the capital stock (or share
capital) of Pubco.
“Adverse
Proposal” means: (i) any Pubco Acquisition Proposal; (ii) any action, proposal or transaction that would reasonably be expected
to result in a breach of any covenant, agreement, representation or warranty or any other obligation of Pubco set forth in the Merger
Agreement or of the Shareholder contained in this A&R Agreement; or (iii) any other action, proposal or transaction that is intended,
or would reasonably be expected, to materially impede, interfere with, be inconsistent with, delay, postpone or prevent the consummation
of, or otherwise adversely affect, the Pubco Merger, the other transactions contemplated by this A&R Agreement or the Merger Agreement.
“Affiliates”
shall mean, with respect to any Person, any other Person which directly or indirectly controls or is controlled by or is under common
control with such Person; provided, that other than with respect to Section 9.18, no direct or indirect portfolio companies
(as such term is understood in the private equity industry) or investments of or affiliated with any Shareholder or any of its Affiliates
shall be deemed or treated as an Affiliate of such Shareholder.
“Closing”
shall mean the closing of the Mergers under the Merger Agreement.
“Expiration
Time” shall mean the earlier to occur of (a) the Company Effective Time, and (b) the valid termination of the Merger Agreement
in accordance with its terms.
“Minimum
Price” shall mean $3.10 (subject to adjustment for any share split (including a reverse share split), share dividend or distribution,
merger, reorganization, recapitalization, reclassification, combination, exchange of shares or similar transaction with respect to the
share capital of Newco), provided, however that the reference to Newco Common Stock shall be changed to Pubco Common Stock for the first
twenty trading days following the closing of the Transactions.“Pubco Common Stock” means the common stock, par value
$0.0001 per share, of Pubco.
“Request
Date” shall mean the date on which the Shareholder requests to Transfer Newco Covered Shares pursuant to Section 2.3 of this
A&R Agreement.
“Trading
Period” shall mean the calendar month of the Request Date. For example, the Trading Period for a request delivered on August
5 would be the period beginning August 1 and ending on August 31.
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“Transfer”
shall mean any direct or indirect (i) sale, tender, exchange, assignment, encumbrance, gift, hedge, pledge, hypothecation, disposition
or other transfer (by operation of Law or otherwise), voluntarily or involuntarily, or entry into any contract, option or other arrangement
or understanding with respect to any sale, tender, exchange, assignment, encumbrance, gift, hedge, pledge, hypothecation, disposition
or other transfer (by operation of Law or otherwise), of any Covered Shares (excluding,
for the avoidance of doubt, any sale, tender, exchange, assignment, encumbrance, gift, hedge, pledge, hypothecation, disposition or other
transfer pursuant to this A&R Agreement or the Merger Agreement) or any right, title or interest therein; (ii) (x) deposit of any
Covered Shares into a voting trust, (y) entry into a support agreement with respect to any Covered Shares (other than this A&R Agreement),
or (z) grant of any irrevocable or revocable proxy, corporate representative appointment or power of attorney (or other consent or authorization
with respect to any Covered Shares) with respect to any Covered Shares (other than as set forth in this A&R Agreement); or (iii)
any agreement or commitment (whether or not in writing) to take any of the actions referred to in the foregoing clauses (i) or (ii);
provided, however, that Transfer shall not include: (1) with respect to any Pubco Options held by the Shareholder that
expire on or prior to the termination of this A&R Agreement, any transfer, sale or other disposition of any Covered Shares to Pubco
as payment for the (i) exercise price of such Pubco Options and (ii) taxes applicable to the exercise of such Pubco Options or (2) with
respect to any Pubco RSUs granted to the Shareholder, (i) any transfer for the net settlement of such Pubco RSUs settled in Covered Shares
(to pay any tax withholding obligations) or (ii) any transfer for receipt upon settlement of such Pubco RSUs, and the sale of a sufficient
number of Covered Shares acquired upon settlement of such securities as would generate sales proceeds sufficient to pay the aggregate
taxes payable by the Shareholder as a result of such settlement, (3) any indirect Transfer of limited partner interests in any Shareholder
or any investment fund affiliated with any Shareholder; provided, that such transfer does not result in any Person (other than
the Person that directly or indirectly ultimately controls such Shareholder as of the date hereof) directly or indirectly ultimately
controlling the general partner or controlling entity of such limited partnership or investment fund.
“Volume
Limitation” shall mean 10% of the number of Newco Covered Shares held by the undersigned immediately following the closing
of the transactions contemplated by the Merger Agreement.
2. No Transfer; No Inconsistent Arrangements.
2.1 From
the date hereof until the date on which the Pubco Stockholder Approval shall have been obtained, the Shareholder agrees not to Transfer
any Covered Shares; provided, however, that the Shareholder may, (x)(i) if the Shareholder is an individual, (a) Transfer
any Covered Shares to any members of the Shareholder’s immediate family, or to a trust solely for the benefit of the Shareholder
or any member of the Shareholder’s immediate family (for purposes of this A&R Agreement, “immediate family” shall
mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), or
to a partnership, limited liability company or other entity of which the Shareholder and/or any member of the Shareholder’s immediate
family are the legal and beneficial owners of all of the outstanding equity securities of such entity or similar interest and the Shareholder
controls all of the voting power of such entity, (b) Transfer any Covered Shares by operation of law, such as pursuant to a qualified
domestic order, divorce settlement or divorce decree and (c) Transfer any Covered Shares by will or under the laws of intestacy upon
the death of the Shareholder, (ii) if the Shareholder is a corporate entity, limited liability company, or partnership, Transfer any
Covered Shares to any other Person which directly or indirectly controls, is controlled by or is under common control with such Shareholder;
but in the case of each of the foregoing clauses (i) and (ii), only if all of the representations and warranties of the Shareholder would
be true and correct upon such Transfer and the transferees agree in writing to be bound by the obligations set forth herein with respect
to such Covered Shares as if they were the Shareholder hereunder, with the Company named as an express third-party beneficiary of such
agreements; (iii) release the Covered Shares from any pledge, lien or encumbrance existing on the date hereof so long as such release
would not prohibit, limit, otherwise conflict with or impede (in any respect) the Shareholder’s compliance with its obligations
pursuant to this A&R Agreement; and (iv) pledge, lien or encumber any portion of the Covered Shares so long as such pledge, lien
or encumbrance would not prohibit, limit, otherwise conflict with or impede (in any respect) the Shareholder’s compliance with
its obligations pursuant to this A&R Agreement (any such Transfer, a “Permitted Transfer”); (y) if any involuntary
Transfer of any of the Shareholder’s Covered Shares shall occur (including a sale by the Shareholder’s trustee in any bankruptcy,
or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all
transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and hold such Covered Shares
subject to all of the restrictions, obligations, liabilities and rights under this A&R Agreement, which shall continue in full force
and effect in accordance with the terms and conditions hereof until the Expiration Time. Any action taken in violation of the immediately
preceding sentence shall, to the fullest extent permitted by Law, be null and void ab initio. Nothing herein shall limit, restrict
or impose any obligation or commitment with respect to Shares that are not Covered Shares.
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2.2 From
the date hereof until the Expiration Time, the Shareholder shall not, directly or indirectly, take any action that would reasonably be
expected to make any of the Shareholder’s representations or warranties under this A&R Agreement untrue or incorrect in any
material respect.
2.3 From
the signing of the Merger Agreement until one hundred eighty (180) days following the Closing Date (the “Lock-up Period”),
the Shareholder agrees not to Transfer any Newco Common Stock or Newco Preferred Stock issued to such Shareholder in connection with
the Transactions or after the Closing Date, unless acquired by such Shareholder in ordinary brokerage transactions on Newco’s primary
trading market after the Closing Date (the “Newco Covered Shares”); provided, however, that the Shareholder
may, (x)(i) if the Shareholder is an individual, (a) Transfer any Newco Covered Shares to any members of the Shareholder’s immediate
family, or to a trust solely for the benefit of the Shareholder or any member of the Shareholder’s immediate family (for purposes
of this A&R Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic
partnership or adoption, not more remote than first cousin), or to a partnership, limited liability company or other entity of which
the Shareholder and/or any member of the Shareholder’s immediate family are the legal and beneficial owners of all of the outstanding
equity securities of such entity or similar interest and the Shareholder controls all of the voting power of such entity, (b) Transfer
any Newco Covered Shares by operation of law, such as pursuant to a qualified domestic order, divorce settlement or divorce decree and
(c) Transfer any Newco Covered Shares by will or under the laws of intestacy upon the death of the Shareholder, (ii) if the Shareholder
is a corporate entity, limited liability company, or partnership, Transfer any Newco Covered Shares to any other Person which directly
or indirectly controls, is controlled by or is under common control with such Shareholder; but in the case of each of the foregoing clauses
(i) and (ii), only if all of the representations and warranties of the Shareholder would be true and correct upon such Transfer and the
transferees agree in writing to be bound by the obligations set forth herein with respect to such Newco Covered Shares as if they were
the Shareholder hereunder, with the Company named as an express third-party beneficiary of such agreements; or (y) Transfer any Newco
Covered Shares in connection with the sale of such Newco Covered Shares if (i) such Transfer does not exceed the Volume Limitation during
the applicable Trading Period (provided, however, that this clause (y) shall not apply in the event that the price at which each Newco
Covered Shares is sold is over the Minimum Price subject to adjustment for any share split (including a reverse share split), share dividend
or distribution, merger, reorganization, recapitalization, reclassification, combination, exchange of shares or similar transaction with
respect to the share capital of Newco)and (ii) such Transfer does not subject the recipient of the Covered Shares to the reporting requirements
of Section 16 of the Exchange Act; provided, however, that no Cashless Exercise Shares may be Transferred in reliance on this clause
(y) of this Section 2.3. For the avoidance of doubt, any shares sold in reliance on clause (y)(i) in the foregoing sentence shall count
towards the calculation of the Volume Limitation even if such Newco Covered Shares are sold at a price in excess of the Minimum Price.
If any involuntary Transfer of any of the Shareholder’s Newco Covered Shares shall occur (including a sale by the Shareholder’s
trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein,
shall include any and all transferees and subsequent transferees of the initial transferee) shall, subject to applicable Law, take and
hold such Newco Covered Shares subject to all of the restrictions, obligations, liabilities and rights under this A&R Agreement,
which shall continue in full force and effect in accordance with the terms and conditions hereof until the date that is eighty (180)
days after the Closing Date. Any action taken in violation of the immediately preceding sentence shall, to the fullest extent permitted
by Law, be null and void ab initio.
A-3-10
3. Agreement to Vote.
(a)
Agreement to Vote. From the date of the Agreement until the Expiration Time, the Shareholder irrevocably and unconditionally agrees
that, at every meeting of the shareholders or of any class of shareholders of Pubco, however called, including any adjournment or postponement
thereof, and in connection with any action proposed to be taken by written consent of the shareholders or any class of shareholders of
Pubco, the Shareholder shall, in each case, to the fullest extent that the Shareholder’s Covered Shares are entitled to vote thereon:
(a) appear at each such meeting or otherwise cause all such Covered Shares to be counted as present thereat for the purpose of determining
a quorum; and (b) be present (in person or by proxy) and vote (or cause to be voted), or deliver (or cause to be delivered) a written
consent with respect to, all such Covered Shares (i) in favor of (A) the consummation of the transactions contemplated by the Merger
Agreement, (B) all of the matters, actions and proposals necessary to consummate the transactions contemplated by the Merger Agreement,
and (C) any other transaction contemplated by the Merger Agreement or other matters that would reasonably be expected to facilitate the
Pubco Merger, including any proposal to adjourn or postpone such meeting of the Pubco’s stockholders to a later date if there are
not sufficient votes to approve the adoption of the Merger Agreement; and (ii) against any Adverse Proposal. The obligations of the Shareholder
in this Section 3 shall not be affected by any Pubco Change of Recommendation. The Shareholder shall retain at all times the right
to vote the Covered Shares in the Shareholder’s sole discretion, and without any other limitation, on any matters other than those
expressly set forth in this Section 3.1 that are at any time or from time to time presented for consideration to the Pubco’s
stockholder generally. For the avoidance of doubt, the foregoing commitments in this Section 3.1 apply to any Covered Shares held
by any trust, limited partnership or other entity directly or indirectly holding Covered Shares over which the applicable Shareholder
exercises direct or indirect voting control (if any).
(b) From
the date hereof until the Expiration Time, the Shareholder irrevocably and unconditionally agrees that, at every meeting of the shareholders
or of any class of shareholders of Pubco, however called, including any adjournment or postponement thereof, and in connection with any
action proposed to be taken by written consent of the shareholders or any class of shareholders of Pubco, the Shareholder shall, in each
case, to the fullest extent that the Shareholder’s Covered Shares are entitled to vote thereon: (a) appear at each such meeting
or otherwise cause all such Covered Shares to be counted as present thereat for the purpose of determining a quorum; and (b) be present
(in person or by proxy) and vote (or cause to be voted), or deliver (or cause to be delivered) a written consent with respect to, all
such Covered Shares in favor of election of directors of Pubco and Newco effective as of the Closing as contemplated by Section 6.21
of the Merger Agreement.
(c) From
the Closing Date, the Shareholder irrevocably and unconditionally agrees that for as long as the Shareholder holds Newco Common Stock,
that every meeting of the shareholders or of any class of shareholders of Pubco, however called, including any adjournment or postponement
thereof, and in connection with any action proposed to be taken by written consent of the shareholders or any class of shareholders of
Pubco, the Shareholder shall, in each case, to the fullest extent that the Shareholder’s Covered Shares are entitled to vote thereon:
(a) appear at each such meeting or otherwise cause all such Covered Shares to be counted as present thereat for the purpose of determining
a quorum; and (b) be present (in person or by proxy) and vote (or cause to be voted), or deliver (or cause to be delivered) a written
consent with respect to, all such Covered Shares in favor of the recommendations of the board of directors of Newco.
3.2
Irrevocable Proxy. The Shareholder hereby appoints Pubco and any designee of Pubco, and each of them individually, until the Expiration
Time (at which time this proxy shall automatically be revoked), its proxies and attorneys-in-fact, with full power of substitution and
resubstitution, to vote during the term of this A&R Agreement with respect to the Covered Shares in accordance with Section 3.1.
This proxy and power of attorney is given to secure the performance of the duties of the Shareholder under this A&R Agreement. The
Shareholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy.
This proxy and power of attorney granted by the Shareholder shall be irrevocable during the term of this A&R Agreement, shall be
deemed to be coupled with an interest sufficient in Law to support an irrevocable proxy, and shall revoke any and all prior proxies granted
by the Shareholder with respect to the Covered Shares. The power of attorney granted by the Shareholder herein is a durable power of
attorney and shall survive the bankruptcy, death, or incapacity of such Shareholder.
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4. Additional Covenants.
4.1
No Solicitation. The Shareholder agrees to be bound by and comply with the provisions of Section 5.4 of the Merger Agreement,
as if it was a direct party thereto, and such provisions are incorporated hereto mutatis mutandis; with it being understood that
each Shareholder shall be entitled to take any action that would be permitted by Section 5.4 of the Merger Agreement; provided,
that any reference to affiliates in Section 5.4 of the Merger Agreement shall be deemed to have the same meaning as the definition of
“Affiliates” hereunder.
4.2 Waiver.
(a) The
Shareholder hereby irrevocably and unconditionally waives, and agrees not to assert, exercise or perfect (or attempt to exercise, assert
or perfect) any rights of appraisal or rights to dissent from the Pubco Merger or quasi-appraisal rights that it may at any time have
under applicable Law, including Section 92A.380 of the Nevada Revised Statutes. The Shareholder agrees not to commence or participate
in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise,
against Newco, Pubco, the Mergers Subs, the Company, any of their respective affiliates or successors or any of their respective directors,
managers or officers (a) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this A&R Agreement
or the Merger Agreement (including any claim seeking to enjoin or delay the consummation of the Pubco Merger) or (b) alleging a breach
of any duty of the Company Board of Directors or the Pubco Board of Directors or of any Person in connection with the Merger Agreement,
this A&R Agreement or the transactions contemplated thereby or hereby; provided, that the foregoing agreement and waiver shall
not apply to any claim, derivative or otherwise, under or related to this A&R Agreement.
(b) The
Shareholder, on behalf of itself and its respective present and former affiliates, officers, directors, shareholders, heirs, successors,
and assigns (collectively, “Releasors”) hereby releases, waives, and forever discharges Newco, the Company,
and Pubco and their respective affiliates, employees, officers, directors, shareholders, agents, representatives, successors, and assigns
(collectively, “Releasees”) of and from any and all actions, causes of action, suits, losses, liabilities,
rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands,
of every kind and nature whatsoever, whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected,
in law or equity, in each case related to, or arising from, any sale, change of control, or transaction bonuses, or similar payment payable
to such Shareholder pursuant to an agreement or other binding arrangement and which becomes payable upon the execution of the Merger
Agreement or consummation of the Transactions, which any of such Releasors ever had, now have, or hereafter can, shall, or may have against
any of such Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time through the Payoff
Date.
4.3
Notice of Certain Events. The Shareholder agrees to notify the Company of any development occurring after the date hereof that
causes, or that would reasonably be expected to cause, any material breach of any of the representations and warranties of the Shareholder
set forth in Section 5. Promptly upon the acquisition of any After-Acquired Shares, the Shareholder shall notify the Company of
the number of After-Acquired Shares so acquired; it being understood that any such shares shall be subject to the terms of this A&R
Agreement as though owned by the Shareholder on the date hereof as Covered Shares (and, for the avoidance of doubt, such After-Acquired
Shares shall be considered as Covered Shares following such Transfer unless such Transfer Was a Permitted Transfer). The Company shall
notify the Shareholder of any development occurring after the date hereof that causes, or that would reasonably be expected to cause,
any material breach of any of the representations and warranties of the Company set forth in Section 6.
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4.4 Pubco
Warrants. At least ten (10) Business Days prior to the Closing, the Shareholder shall deliver to Pubco a duly executed copy of a
notice of exercise of the Pubco Warrants (“Notice of Exercise”) to purchase (i) 3,328,407 Pubco Shares at a purchase
price of $2.875 per share and (ii) 16,137,866 Pubco Shares at a purchase price of $3.125 per share (collectively, the “Exercised
Pubco Warrants” and the aggregate exercise price for such Exercised Pubco Warrants collectively the “Exercise Price”)
. At least seven (7) Business Days prior to the Closing, the Shareholder shall (i) enter into an escrow agreement with an escrow agent
to be identified by the Company, which shall empower the Company to cause the funds held therein to be dispersed to the Company upon
the Closing and (ii) wire the Exercise Price to the escrow account established by the Escrow Agreement The Notice of Exercise shall be
contingent on, and become effective immediately prior to, the consummation of the Pubco Merger and will result in the issuance by Newco
of the number of shares of Newco Common Stock and Newco Prefunded Warrants set forth on the Company Consideration Schedule. In the event
that the Closing does not occur and the Merger Agreement is validly terminated in accordance with its terms, the Company shall instruct
the escrow agent to return the Exercise Price to the Shareholder.
4.5 Pubco
Preferred Stock. At least seven (7) Business Days prior to the Closing, the Shareholder shall deliver to Pubco a duly executed copy
of a notice of conversion (“Notice of Conversion”) for the shares of Pubco Preferred Stock designated as Series C
Convertible Preferred Stock. The Notice of Conversion shall be contingent on, and become effective immediately prior to, the consummation
of the Pubco Merger and will result in the issuance by Newco of the number of shares of Newco Common Stock and Newco Prefunded Warrants
set forth on the Company Consideration Schedule.
4.6 Acknowledgement
of Cashless Exercise. To induce the Company to enter into the Amendment, the Shareholder and Pubco hereby agree that the terms of
the Pubco Warrants held by the Shareholder be and hereby are amended to provide that to the extent such Pubco Warrants have not been
cash exercised at Closing as set forth in Section 4.4 above, each such unexercised Pubco Warrant shall be deemed cashless exercised at
a value of $6.25 per Pubco Class A Common Share; provided, that not more than 7,000,000 shares of Newco Common Stock shall be
subject to such deemed cashless exercise (with any Public Warrants held by the Shareholder that are neither so cash exercised nor so
deemed cashless exercise being cancelled, any such cancellations being applied pro rata with respect to the holders of any such Public
Warrants); provided, further, that any Pubco Shares issuable in connection with the exercise of the Pubco Warrants which
would cause the holder to beneficially own more than 4.99% of the outstanding shares of Newco Common Stock shall instead be cancelled
and converted into the right to receive one Newco Prefunded Warrant, to purchase one share of Newco Common Stock.
4.7 Lock-up
Provisions. Newco, acting through its Board of Directors or otherwise, shall not exercise any of its rights to waive, amend, or repeal,
in whole or in part, any of the restrictions set forth in Section 7.7 of Newco’s Amended and Restated Bylaws dated as of July 16,
2026, without the prior written consent of Shareholder.
5. Representations
and Warranties of the Shareholder. The Shareholder represents and warrants to the Company that:
5.1 Due Organization; Authority.
(a) If
the Shareholder is not an individual, (i) the Shareholder is duly organized, validly existing and in good standing (to the extent such
concept is recognized under applicable Law) under the Law of its jurisdiction of incorporation or organization, as applicable, (ii) the
Shareholder has the requisite power and authority to enter into and to perform its obligations under this A&R Agreement, (iii) the
execution and delivery of this A&R Agreement by the Shareholder and the performance of its obligations hereunder and the consummation
of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Shareholder, and (iv) no
other proceedings on the part of the Shareholder are necessary to authorize the execution, delivery
and performance of this A&R Agreement by the Shareholder or to consummate the transactions contemplated hereby. If the Shareholder
is an individual, the Shareholder has the requisite legal capacity, right and authority to execute, deliver and perform the Shareholder’s
obligations under this A&R Agreement and to consummate the transactions contemplated hereby.
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(b) This
A&R Agreement has been duly and validly executed and delivered by the Shareholder and, assuming the due authorization, execution
and delivery by the Company, constitutes a legal, valid and binding obligation of the Shareholder, enforceable against the Shareholder
in accordance with its terms, subject to the Enforceability Limitations.
5.2 Ownership
of the Covered Shares; Voting Power. The Shareholder is the record and beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of all of the Covered Shares and has good and marketable title to all of the Covered Shares free and clear of any lien, charge,
pledge, security interest, claim, adverse ownership interest, or agreements, options, rights, understandings or arrangements or any other
encumbrances or restrictions whatsoever on title, transfer or exercise of any rights of a shareholder in respect of the Covered Shares
(collectively, “Liens”), other than those created by this A&R Agreement or those imposed by applicable securities
Law or for such Liens as would not prohibit, limit or otherwise conflict with the Shareholder’s compliance with its obligations
pursuant to this A&R Agreement (collectively, “Permitted Liens”). The Covered Shares listed on Schedule A constitute
all of the Pubco Shares beneficially owned by the Shareholder as of the date hereof. As of the date hereof, the Shareholder has not entered
into any agreement to Transfer any of the Covered Shares. The Shareholder has full voting power with respect to all of the Covered Shares,
and full power of disposition with respect to the Covered Shares, full power to issue instructions with respect to the matters set forth
herein and full power to agree to all of the matters set forth in this A&R Agreement, in each case with respect to all the Covered
Shares. None of the Covered Shares are subject to any shareholders’ agreement, proxy, voting trust or other agreement, arrangement
or Lien with respect to the voting of the Covered Shares, except as expressly provided herein (including Permitted Liens) or in the Registration
Rights Agreement.
5.3 Non-Contravention;
Consents. Neither the execution and delivery of this A&R Agreement by the Shareholder nor the consummation of the transactions
contemplated hereby nor compliance by the Shareholder with any provisions herein will (a) if the Shareholder is not an individual, violate,
contravene or conflict with or result in any breach of any provision of the organizational documents of the Shareholder, (b) require
any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity on the part of the Shareholder,
except for compliance with the applicable requirements of the Securities Act, the Exchange Act or any other securities laws and the rules
and regulations promulgated thereunder, (c) violate, conflict with, or result in a breach of or default under any provisions of, or require
any consent, waiver or approval under any of the terms, conditions or provisions of any material Contract to which the Shareholder is
a party or by which the Shareholder or any of the Covered Shares may be bound, (d) result in the creation or imposition of any Lien (other
than any Lien created by the Company or the Permitted Liens) on any asset of the Shareholder or (e) violate any Law applicable to the
Shareholder or by which any of the Covered Shares are bound, except, in the case of each of the clauses above, as would not, individually
or in the aggregate, reasonably be expected to prevent, impair or materially delay the consummation by the Shareholder of the transactions
contemplated by this A&R Agreement or otherwise prevent, impair or materially delay the Shareholder’s ability to perform its
obligations hereunder.
5.4 No
Proceedings. As of the date hereof, there is no Proceeding pending against or, to the knowledge of the Shareholder, threatened against
the Shareholder or any of the Shareholder’s properties or assets (including any of the Covered Shares) that would, individually
or in the aggregate, reasonably be expected to prevent, impair or materially delay the consummation by the Shareholder of the transactions
contemplated by this A&R Agreement or otherwise prevent, impair or materially delay the Shareholder’s ability to perform its
obligations hereunder.
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5.5 Acknowledgment
of the Terms and Conditions. The Shareholder has been represented by or had opportunity to be represented by independent counsel,
and to the extent the Shareholder is not an individual, such Shareholder’s authorized officers have carefully read and fully understood
this A&R Agreement and the Merger Agreement.
5.6 No
Finder’s Fees. No broker, investment banker, financial advisor, finder, agent or other Person is entitled to any broker’s,
finder’s, financial adviser’s or other similar fee or commission in connection with this A&R Agreement based upon the
arrangements made by or on behalf of the Shareholder in his or its capacity as such.
6. Representations
and Warranties of the Company. The Company represents and warrants to the Shareholder that:
6.1 Due
Organization; Authority. The Company is duly organized and validly existing under the Laws of the State of Israel, it is not a “defaulting
company” as such term is defined in the ICL. The Company has the requisite power and authority to enter into and to perform its
obligations under this A&R Agreement. The execution and delivery of this A&R Agreement by the Company and performance of its
obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action
on the part of the Company, and no other corporate proceedings on the part of the Company are necessary to authorize the execution, delivery
and performance of this A&R Agreement by the Company or to consummate the transactions contemplated hereby. This A&R Agreement
has been duly executed and delivered on behalf of the Company and, assuming the due authorization, execution and delivery of this A&R
Agreement on behalf of each Shareholder, constitutes the valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to the Enforceability Limitations.
6.2 Absence
of Manipulation. The Shareholder further represents and agrees that the undersigned has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale of the Covered Shares, or which has otherwise
constituted or will constitute any prohibited bid for or purchase of the Covered Shares or any related securities. Except as permitted
in Section 2.3 of this A&R Agreement, neither the Shareholder or any entity managed or controlled
by the Shareholder nor has any Person acting on behalf of or pursuant to any understanding with the Shareholder, has directly
or indirectly, engaged in or effected any transactions in the Covered Shares (including, without
limitation, (i) any Short Sales (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) the Covered Shares
or (ii) hedging transaction, in either case which establishes a net short position involving Pubco’s
securities) during the period commencing on January 9, 2026 and ending upon the expiration of the Lock-up Period.
6.3 Non-Contravention;
Consents. Neither the execution and delivery of this A&R Agreement by the Company nor the consummation of the transactions contemplated
hereby nor compliance by the Company with any provisions herein will (a) violate, contravene or conflict with or result in any breach
of any provision of the organizational documents of the Company, (b) require any consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Entity on the part of the Company, except for compliance with the applicable requirements of
the Securities Act, the Exchange Act or any other securities laws and the rules and regulations promulgated thereunder, (c) violate,
conflict with, or result in a breach of or default under any provisions of, or require any consent, waiver or approval under any of the
terms, conditions or provisions of any material Contract to which the Company is a party or by which the Company may be bound, (d) result
in the creation or imposition of any Lien on any asset of the Company or (e) violate any Law applicable to the Company, except, in the
case of each of the clauses above, as would not, individually or in the aggregate, reasonably be expected to prevent, impair or materially
delay the consummation by the Company of the transactions contemplated by this A&R Agreement or otherwise prevent, impair or materially
delay the Company’s ability to perform its obligations hereunder.
6.4 No
Proceedings. There is no Proceeding pending against or, to the knowledge of the Company, threatened against the Company that would,
individually or in the aggregate, reasonably be expected to prevent, impair or materially delay the consummation by the Company of the
transactions contemplated by this A&R Agreement or otherwise prevent, impair or materially delay Pubco’s ability to perform
its obligations hereunder.
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7.
Termination. Unless earlier terminated by the written consent of Pubco (in its sole and absolute discretion), this A&R Agreement
shall terminate automatically and shall have no further force or effect (a) one hundred eighty (180) days following the Closing Date
with respect to Section 2.3 or (b) as of the Expiration Time with respect to the other provisions in this A&R Agreement. Upon
termination of this A&R Agreement, no Party shall have any further obligations or liabilities under this A&R Agreement; provided,
however, that (i) nothing set forth in this Section 7 shall relieve any Party from liability for fraud or any willful breach
of this A&R Agreement prior to termination hereof and (ii) the provisions of this Section 7 and Section 9 shall survive
any termination of this A&R Agreement. In the event that the Merger Agreement is terminated, this A&R Agreement shall automatically
terminate.
8. Reliance.
The Shareholder understands and acknowledges that that the Company entered into the Merger Agreement and is entering into the Amendment
in reliance upon the Shareholder’s execution, delivery and performance of this A&R Agreement.
9. Miscellaneous.
9.1 Severability.
Any term or provision of this A&R Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that
any term or provision hereof is invalid or unenforceable, the Parties agree that the court making such determination shall have the power
to limit the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with
a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable
term or provision, and this A&R Agreement shall be enforceable as so modified. In the event such court does not exercise the power
granted to it in the prior sentence, the Parties agree to replace such invalid or unenforceable term or provision with a valid and enforceable
term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable
term.
9.2
Binding Effect and Assignment. Neither this A&R Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any Party (whether by operation of Law or otherwise) without the prior written consent of the other Party. Subject to
the preceding sentence, this A&R Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their
respective permitted successors and assigns. Any assignment in violation of this Section 9.2 shall be void.
9.3 Amendments
and Waivers. Any provision of this A&R Agreement may be amended, modified, supplemented or waived if, but only if, such amendment,
modification, supplement or waiver is in writing and is signed, in the case of an amendment, modification or supplement by each Party
to this A&R Agreement or, in the case of a waiver, by each Party against whom the waiver is to be effective. No failure or delay
by any Party to assert any of its rights under this A&R Agreement or otherwise shall constitute a waiver of such rights.
9.4
Specific Performance; Injunctive Relief. The Parties agree that irreparable injury, for which monetary damages (even if available)
would not be an adequate remedy, will occur in the event that any of the provisions of this A&R Agreement are not performed in accordance
with their specific terms or are otherwise breached. Accordingly, it is agreed that each Party shall be entitled to an injunction or
injunctions to prevent or remedy any breaches or threatened breaches of this A&R Agreement by any other Party, a decree or order
of specific performance specifically enforcing the terms and provisions of this A&R Agreement and any further equitable relief, in
each case in accordance with Section 9.6, this being in addition to any other remedy to which such Party is entitled under the
terms of this A&R Agreement at law or in equity. The Parties’ rights in this Section 9.4 are an integral part of the
transactions contemplated hereby and each Party hereby waives any objections to any remedy referred to in this Section 9.4 (including
any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any
reason at Law or equity). For avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this
A&R Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.4, such Party shall not
be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such
remedy.
A-3-16
9.5
Notices. All notices, consents and other communications hereunder shall be in writing and shall be given in the manner described
in Section 9.4 of the Merger Agreement, addressed as follows: (i) if to the Company, to its address or email address set forth
in Section 9.4 of the Merger Agreement, and (ii) if to the Shareholder, to the Shareholder’s address or email address set
forth on a signature page hereto, or to such other address or email address as such Party may hereafter specify for the purpose by notice
to each other Party hereto.
9.6
Applicable Law; Jurisdiction of Disputes. This A&R Agreement and any dispute, controversy or claim arising out of, relating
to or in connection with this A&R Agreement shall be governed by and construed and enforced in accordance with the Laws of the State
of Delaware, USA, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or
otherwise) that would cause the application of the Laws of any other jurisdiction; except that provisions related to the internal affairs
of the Company, the fiduciary and other duties of its directors, the procedures for implementing, and effects of, the Pubco Merger, and
all other provisions of, or transactions contemplated by, this A&R Agreement that are expressly or otherwise required to be governed
by the Laws of the State of Israel shall be governed by such Laws. Each of the Parties hereby irrevocably and unconditionally submits,
for itself and its property, to the exclusive jurisdiction of the Court of Chancery of the State of Delaware, or, if (and only if) such
court finds it lacks jurisdiction, the Federal court of the United States of America sitting in Delaware, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this A&R Agreement or the transactions contemplated hereby
or for recognition or enforcement of any judgment relating thereto, and each of the Parties hereby irrevocably and unconditionally (i)
agrees not to commence any such action or proceeding, except in the Court of Chancery of the State of Delaware, or, if (and only if)
such court finds it lacks jurisdiction, the Federal court of the United States of America sitting in Delaware, and any appellate court
from any thereof; (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in the Court of
Chancery of the State of Delaware, or, if (and only if) such court finds it lacks jurisdiction, the Federal court of the United States
of America sitting in Delaware, and any appellate court from any thereof; (iii) waives, to the fullest extent it may legally and effectively
do so, any objection that it may now or hereafter have to the laying of venue of any such action or proceeding in such courts; and (iv)
waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding
in such courts. Notwithstanding the foregoing, with respect to any action or proceeding arising out of this A&R Agreement or any
of the transactions contemplated hereby that primarily relate to Israeli Law matters, each of the parties hereto (x) consents to submit
itself to the personal jurisdiction of the courts of Tel-Aviv, Israel, and (y) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court. Each of the Parties agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by applicable Law. Each Party irrevocably consents to service of process inside or outside the territorial jurisdiction of the
courts referred to in this Section 9.6 in the manner provided for notices in Section 9.5. Nothing in this A&R Agreement
will affect the right of any Party to serve process in any other manner permitted by applicable Law.
9.7 Waiver
of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS A&R AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS A&R AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.7.
A-3-17
9.8 Entire
Agreement. This A&R Agreement, together with the Merger Agreement contains the entire understanding of the Parties in respect
of the subject matter hereof, and supersedes all prior negotiations and understandings between the Parties with respect to such subject
matter.
9.9 Counterparts.
This A&R Agreement may be executed manually or by other electronic transmission by the Parties, in any number of counterparts, each
of which shall be considered one and the same agreement and shall become effective when a counterpart hereof shall have been signed by
each of the Parties and delivered to the other Parties. The exchange of a fully executed Agreement (in counterparts or otherwise) by
electronic transmission in .pdf or DocuSign format shall be sufficient to bind the Parties to the terms and conditions of this A&R
Agreement.
9.10 Interpretation.
When a reference is made in this A&R Agreement to sections, such reference shall be to a section of this A&R Agreement, unless
otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this A&R
Agreement they shall be deemed to be followed by the words “without limitation.” As used in this A&R Agreement, the term
“affiliates” shall have the meaning set forth in Rule 12b-2 of the Exchange Act; provided, that no direct or indirect portfolio
companies (as such term is understood in the private equity industry) or investments of or affiliated with the Shareholder of any of
its Affiliates shall be deemed or treated as an Affiliate of the Shareholder. The word “extent” and the phrase “to
the extent” when used in this A&R Agreement shall mean the degree to which a subject or other things extends, and such word
or phrase shall not merely mean “if.” The term “or” is not exclusive, and shall be interpreted as “and/or.”
The phrases “the date of this A&R Agreement,” “the date hereof,” “of even date herewith” and
terms of similar import, shall be deemed to refer to the date set forth in the preamble to this A&R Agreement. The headings set forth
in this A&R Agreement or any schedule delivered pursuant to this A&R Agreement are for convenience of reference purposes only
and shall not affect or be deemed to affect in any way the meaning or interpretation of this A&R Agreement or such schedule or any
term or provision hereof or thereof. All references herein to the Subsidiaries of a Person shall be deemed to include all direct and
indirect Subsidiaries of such Person, unless otherwise indicated or the context otherwise requires. A reference to any specific Law or
to any provision of any Law, whether or not followed by the phrase “as amended,” includes any amendment to, and any modification,
re-enactment or successor thereof, any legislative provision substituted therefor and all rules, regulations and statutory instruments
issued thereunder or pursuant thereto, except that, for purposes of any representations and warranties in this A&R Agreement that
are made as a specific date, references to any specific Law will be deemed to refer to such legislation or provision (and all rules,
regulations and statutory instruments issued thereunder or pursuant thereto) as of such date. The Parties agree that they have been represented
by counsel during the negotiation and execution of this A&R Agreement and, therefore, waive the application of any Law, regulation,
holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting
such agreement or document.
9.11 Capacity
as Shareholder. No person executing this A&R Agreement who is or becomes an officer or director of the Company makes any agreement
or understanding herein in his or her capacity as such officer or director. The Shareholder signs solely in his, her or its capacity
as the record and beneficial owner of the Covered Shares. Nothing herein shall limit or affect any actions taken by a Shareholder or
any officer, director, employee, affiliate or representative of a Shareholder solely in his or her capacity as an officer or director
of the Company, including without limitation, exercising his or her fiduciary duties in connection thereto.
9.12
Adjustments. After the date of this A&R Agreement and prior to the termination of this A&R Agreement in accordance with
Section 7, in the event of an Adjustment, the term “Covered Shares” shall be deemed to refer to and include any stock
(or share) and any securities into which or for which any or all of such stock (or share) and securities may be changed or exchanged
or which are received in such Adjustment.
A-3-18
9.13 Expenses.
All costs and expenses incurred in connection with this A&R Agreement shall be paid by the Party incurring such cost or expense.
9.14 No A&R Agreement Until Executed. This A&R Agreement shall not be effective unless and until (i) the Amendment is executed and delivered by all parties thereto and (ii) this A&R Agreement is executed and delivered by all Parties. Prior to such time, the obligations of the Parties were governed by the Agreement.
9.15 Further
Assurances. The Shareholder will execute and deliver, or cause to be executed and delivered, all further documents and instruments
and use the Shareholder’s reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable Law, to perform the Shareholder’s obligations under this A&R Agreement.
9.16 No
Third Party Beneficiaries. Nothing in this A&R Agreement shall confer any rights upon any Person other than the Parties and each
such Party’s respective heirs, successors and permitted assigns, except as otherwise set forth herein.
9.17 Non-Survival
of Representations and Warranties. The respective representations and warranties of the Shareholder and the Company contained herein
shall not survive the closing of the transactions contemplated hereby and by the Merger Agreement.
9.18
Non-Recourse. Notwithstanding anything herein to the contrary, this A&R Agreement may only be enforced against, and any claim
or cause of action based upon, arising out of, or to the extent related to this A&R Agreement may only be brought against the entities
that are expressly named as Parties hereto and their respective successors and assigns. Except as set forth in the immediately preceding
sentence, no past, present or future director, officer, manager, employee, incorporator, member, partner, stockholder, equityholder,
controlling person, Affiliate, agent, attorney, advisor or representative of any Party hereto, and no past, present or future director,
officer, manager, employee, incorporator, member, partner, stockholder, equityholder, controlling person, Affiliate, agent, attorney,
advisor or representative of any of the foregoing (each, a “Non-Recourse Party”) shall have any liability for any
obligations or liabilities of any Party hereto under this A&R Agreement (whether in tort, contract or otherwise). The Parties acknowledge
and agree that the Non-Recourse Parties are third party beneficiaries of this Section 9.18, each of whom may enforce the provisions
thereof.
[Signature
Page Follows]
A-3-19
IN
WITNESS WHEREOF, the Parties have executed this Support Agreement as of the date first above written.
XTEND REALITY EXPANSION LTD.
By:
Name:
Title:
AMERICAN VENTURES LLC, SERIES XIV, JFB
By:
Name:
Address:
E-mail:
Soley
for Purposes of Section 4.4 hereof:
Acknowledged and Agreed
JFB CONSTRUCTION HOLDINGS
By:
Name:
Address:
E-mail:
[Signature
Page to Support Agreement]
A-3-20
IN
WITNESS WHEREOF, the Parties have executed this Support Agreement as of the date first above written.
XTEND REALITY EXPANSION LTD.
By:
Name:
Title:
AMERICAN VENTURES LLC, SERIES XIV, JFB
By:
Name:
Eric Newman,
Manager
Address:
[***]
E-mail:
[***]
Soley
for Purposes of Section 4.4 hereof:
Acknowledged and Agreed
JFB CONSTRUCTION HOLDINGS
By:
Name:
Joseph
F. Basile III
Address:
[***]
E-mail:
[***]
[Signature
Page to Support Agreement]
A-3-21
SCHEDULE
A
COVERED SHARES
Name
of Shareholder
Number
of Class A
Common Stock
Number
of Class B
Common Stock
Number of
Preferred
Stock
American
Ventures LLC, Series XIV
JFB
0
0
7,607,612.79
A-3-22
Exhibit
2
Newco
A&R Bylaws
A-3-23
FORM
OF
AMENDED
AND RESTATED BYLAWS
OF
XTEND
AI ROBOTICS, INC.
(A
DELAWARE CORPORATION)
SECTION
1.
OFFICES
Section
1.1 Registered Office. The registered office of Xtend AI Robotics, Inc. (the “Corporation”) in the State of Delaware
and the name of the Corporation’s registered agent at such address shall be as set forth in the amended and restated certificate
of incorporation of the Corporation (as the same may be amended and/or restated from time to time, the “Certificate of Incorporation”).
Section
1.2 Other Offices. The Corporation may at any time establish other offices both within and without the State of Delaware.
SECTION
2.
CORPORATE
SEAL
Section
2.1 Corporate Seal. The Board of Directors of the Corporation (the “Board”) may adopt a corporate seal. Said seal may
be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION
3.
STOCKHOLDERS’
MEETINGS
Section
3.1 Place of Meetings. Meetings of the stockholders of the Corporation may be held at such place, if any, either within or without
the State of Delaware, as may be determined from time to time by the Board. The Board may, in its sole discretion, determine that the
meeting shall not be held at any place, but may instead be held solely by means of remote communication as provided under the General
Corporation Law of the State of Delaware (“DGCL”) and Section 3.9 below.
Section
3.2 Annual Meetings.
(a) The
annual meeting of the stockholders of the Corporation, for the purpose of election of directors and for such other business as may properly
come before it, shall be held on such date and time as may be determined from time to time by the Board. Any annual meeting of stockholders
previously scheduled by the Board may be postponed, rescheduled or cancelled by the Board, or any director or officer of the Corporation
to whom the Board delegates such authority, at any time before or after notice of such meeting has been given to stockholders. Nominations
of persons for election to the Board and proposals of other business to be considered by the stockholders may be made at an annual meeting
of stockholders: (i) pursuant to the Corporation’s notice of meeting of stockholders (or any supplement thereto); (ii) by or at
the direction of the Board or a duly authorized committee thereof; or (iii) by any stockholder of the Corporation who was a stockholder
of record at the time of giving the stockholder’s notice provided for in Section 3.2(b) of these amended and restated bylaws (as
may be amended and/or restated from time to time, the “Bylaws”) and who is a stockholder of record at the time of the annual
meeting of stockholders, who is entitled to vote at the meeting and who complied with the notice procedures set forth in this Section
3.2. For the avoidance of doubt, clause (iii) above shall be the exclusive means for a stockholder to make nominations and submit other
business before an annual meeting of stockholders.
A-3-24
(b) At
an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under the DGCL,
the Certificate of Incorporation and the Bylaws, and only such nominations shall be made and such business shall be conducted as shall
have been properly brought before the meeting in accordance with the procedures below. (1) For nominations for the election to the Board
to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 3.2(a), the stockholder must deliver
written notice to the Secretary at the principal executive offices of the Corporation on a timely basis as set forth in Section 3.2(b)(3)
and must update and supplement the information contained in such written notice on a timely basis as set forth in Section 3.2(c). Such
stockholder’s notice shall include: (A) as to each nominee such stockholder proposes to nominate at the meeting: (1) the name,
age, business address and residence address of such nominee, (2) the principal occupation or employment of such nominee, (3) the class
or series and number of shares of each class or series of capital stock of the Corporation that are owned of record and beneficially
by such nominee and a list of any pledge of or encumbrances on such shares, (4) the date or dates on which such shares were acquired
and the investment intent of such acquisition, (5) the questionnaire, representation and agreement required by Section 3.2(e), completed
and signed by such nominee, and (6) all other information concerning such nominee as would be required to be disclosed in a proxy statement
soliciting proxies for the election of such nominee as a director in an election contest (even if an election contest is not involved
and whether or not proxies are being or will be solicited), or that is otherwise required to be disclosed or provided to the Corporation
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (including such person’s
written consent to being named in a proxy statement, associated proxy card and other filings as a nominee and to serving as a director
if elected); and (B) all of the information required by Section 3.2(b)(4). The Corporation may require any proposed nominee to furnish
such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the
Corporation and to determine the independence (as such term is used in any applicable stock exchange listing requirements or applicable
law) of such proposed nominee or to determine the eligibility of such proposed nominee to serve on any committee or sub-committee of
the Board under any applicable stock exchange listing requirements or applicable law, or that the Board determines could be material
to a reasonable stockholder’s understanding of the background, qualifications, experience, independence, or lack thereof, of such
proposed nominee. The number of nominees a stockholder may nominate for election at an annual meeting on its own behalf (or in the case
of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at
an annual meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such annual meeting.
A stockholder may not designate any substitute nominees unless the stockholder provides timely notice of such substitute nominee(s) in
accordance with this Section 3.2, in the case of an annual meeting, or Section 3.3, in the case of a special meeting (and such notice
contains all of the information, representations, questionnaires and certifications with respect to such substitute nominee(s) that are
required by the Bylaws with respect to nominees for director). (2) For business other than nominations for election to the Board to be
properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 3.2(a), the stockholder must deliver written
notice to the Secretary at the principal executive offices of the Corporation on a timely basis as set forth in Section 3.2(b)(3), and
must update and supplement the information contained in such written notice on a timely basis as set forth in Section 3.2(c). Such stockholder’s
notice shall include: (A) as to each matter such stockholder proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration
and in the event that such business includes a proposal to amend the Bylaws, the language of the proposed amendment), the reasons for
conducting such business at the meeting, and any material interest (including any anticipated benefit of such business to any Proponent
(as defined below) other than solely as a result of its ownership of the Corporation’s capital stock, that is material to any Proponent
individually, or to the Proponents in the aggregate) in such business of any Proponent; and (B) all of the information required by Section
3.2(b)(4). (3) To be timely, the written notice required by Section 3.2(b)(1) or 3.2(b)(2) must be received by the Secretary at the principal
executive offices of the Corporation not later than the close of business on the 90th day, nor earlier than the 120th day, prior to the
first anniversary of the immediately preceding year’s annual meeting (for purposes of notice required for action to be taken at
the Corporation’s first annual meeting of stockholders after its initial public offering of common stock, the date of the immediately
preceding year’s annual meeting shall be deemed to have occurred on June 15 in such immediately preceding calendar year); provided,
however, that, subject to the last sentence of this Section 3.2(b)(3), in the event that the date of the annual meeting is advanced more
than 30 days prior to or delayed by more than 70 days after the anniversary of the preceding year’s annual meeting, or if no annual
meeting was held (or deemed to have been held), notice by the stockholder to be timely must be so received not earlier than the 120th
day prior to such annual meeting and not later than the later of the close of business on (i) the 90th day prior to such annual meeting
or (ii) the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation. In
no event shall an adjournment or postponement of an annual meeting (or the public announcement thereof) for which notice has been given,
or for which a public announcement of the date of the meeting has been made by the Corporation, commence a new time period (or extend
any time period) for the giving of a stockholder’s notice as described above. (4) The written notice required by Sections 3.2(b)(1)
or 3.2(b)(2) shall also include, as of the date of the notice and as to the stockholder giving the notice, the beneficial owner, if any,
on whose behalf the nomination or proposal is made and any affiliate who controls either of the foregoing stockholder or beneficial owner,
directly or indirectly (each, a “Proponent” and collectively, the “Proponents”): (A) the name and address of
each Proponent, including, if applicable, such name and address as they appear on the Corporation’s books and records; (B) the
class, series and number of shares of each class or series of the capital stock of the Corporation that are, directly or indirectly,
owned of record or beneficially (within the meaning of Rule 13d-3 under the Exchange Act) by each Proponent (provided, that for purposes
of this Section 3.2(b)(4), such Proponent shall in all events be deemed to beneficially own all shares of any class or series of capital
stock of the Corporation as to which such Proponent or any of its affiliates or associates has a right to acquire beneficial ownership
at any time in the future); (C) a description of any agreement, arrangement or understanding (whether oral or in writing) with respect
to such nomination or proposal (and/or the voting of shares of any class or series of capital stock of the Corporation) between or among
any Proponent and any of its affiliates or associates, and/or any other persons (including their names) including without limitation,
any agreements, arrangements or understandings required to be disclosed pursuant to Item 5 or Item 6 of Exchange Act Schedule 13D, regardless
of whether the requirement to file a Schedule 13D is applicable; (D) a representation that the stockholder is a holder of record of shares
of the Corporation at the time of giving notice, will be entitled to vote at the meeting, and that such stockholder (or a qualified representative
thereof) intends to appear at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section
3.2(b)(1)) or to propose the business that is specified in the notice (with respect to a notice under Section 3.2(b)(2)); (E) a representation
whether any Proponent or any other participant (as defined in Item 4 of Schedule 14A under the Exchange Act) will engage in a solicitation
with respect to such nomination or proposal and, if so, the name of each participant in such solicitation and the amount of the cost
of solicitation that has been and will be borne, directly or indirectly, by each participant in such solicitation, and a representation
as to whether the Proponents intend or are part of a group which intends (x) to deliver, or make available, a proxy statement and/or
form of proxy to holders of at least the percentage of the Corporation’s voting shares required to approve or adopt the proposal
or elect the nominee, (y) to otherwise solicit proxies or votes from stockholders in support of such proposal or nomination and/or (z)
to solicit proxies in support of any proposed nominee in accordance with Rule 14a-19 promulgated under the Exchange Act; (F) to the extent
known by any Proponent, the name and address of any other stockholder supporting the proposal on the date of such stockholder’s
notice; (G) a description of all Derivative Transactions (as defined below) by each Proponent during the previous
12-month period, including the date of the transactions and the class, series and number of securities involved in, and the material
economic or voting terms of, such Derivative Transactions; (H) a certification regarding whether each Proponent has complied with all
applicable federal, state and other legal requirements in connection with such Proponent’s acquisition of shares of capital stock
or other securities of the Corporation and/or such Proponent’s acts or omissions as a stockholder or beneficial owner of the Corporation;
and (I) any other information relating to each Proponents required to be disclosed in a proxy statement or other filings required to
be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election
contest pursuant to and in accordance with Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.
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(c) A
stockholder providing the written notice required by Section 3.2(b)(1) or (2) shall update and supplement such notice in writing, if
necessary, so that the information (other than the representations required by Section 3.2(b)(4)(E)) provided or required to be provided
in such notice is true and correct in all material respects as of (i) the record date for the determination of stockholders entitled
to notice of the meeting and (ii) the date that is five Business Days (as defined below) prior to the meeting and, in the event of any
adjournment or postponement thereof, five Business Days prior to such adjourned or postponed meeting; provided, that no such update or
supplement shall cure or affect the accuracy (or inaccuracy) of any representations made by any Proponent, any of its affiliates or associates
or a nominee, or the validity (or invalidity) of any nomination or proposal that failed to comply with this Section 3.2 or is rendered
invalid as a result of any inaccuracy therein. In the case of an update and supplement pursuant to clause (i) of this Section 3.2(c),
such update and supplement must be received by the Secretary at the principal executive offices of the Corporation not later than five
Business Days after the later of the record date for the determination of stockholders entitled to notice of the meeting or the public
announcement of such record date. In the case of an update and supplement pursuant to clause (ii) of this Section 3.2(c), such update
and supplement shall be received by the Secretary at the principal executive offices of the Corporation not later than two Business Days
prior to the date for the meeting, and, in the event of any adjournment or postponement thereof, two Business Days prior to such adjourned
or postponed meeting.
(d) Notwithstanding
anything in Section 3.2(b)(3) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting
is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of
the increased Board at least 10 days before the last day a stockholder may deliver a notice of nomination in accordance with Section
3.2(b)(3), a stockholder’s notice required by this Section 3.2 and that complies with the requirements in Section 3.2(b)(1), other
than the timing requirements in Section 3.2(b)(3), shall also be considered timely, but only with respect to nominees for the new positions
created by such increase, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than
the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.
(e) To
be eligible to be a nominee for election or re-election as a director of the Corporation pursuant to a nomination under clause (iii)
of Section 3.2(a) or clause (ii) of Section 3.3(c), each Proponent must deliver (in accordance with the time periods prescribed for delivery
of notice under Sections 3.2(b) (3), 3.2(d) or 3.3(c), as applicable) to the Secretary at the principal executive offices of the Corporation
a written questionnaire with respect to the background, qualifications, stock ownership and independence of such proposed nominee and
the background of any other person or entity on whose behalf the nomination is being made (in the form provided by the Secretary within
10 days following a written request therefor by a stockholder of record) and a written representation and agreement (in the form provided
by the Secretary within 10 days following written request therefor by a stockholder of record) that such person (i) is not and will not
become a party to (A) any agreement, arrangement or understanding (whether oral or in writing) with, and has not given any commitment
or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue
or question (a “Voting Commitment”) that has not been disclosed to the Corporation in the questionnaire or (B) any Voting
Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with
such person’s fiduciary duties under applicable law; (ii) is not and will not become a party to any agreement, arrangement or understanding
(whether oral or in writing) with any person or entity other than the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director of the Corporation or a nominee that has not been
disclosed in such questionnaire; (iii) would be in compliance, if elected as a director of the Corporation, and will comply with, all
applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and
guidelines of the Corporation; and (iv) if elected as a director of the Corporation, intends to serve the entire term until the next
meeting at which such candidate would face re-election.
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(f) A
person shall not be eligible for election or re-election as a director, unless the person is nominated, in the case of an annual meeting,
in accordance with clause (ii) or (iii) of Section 3.2(a) and in accordance with the procedures set forth in Section 3.2(b), Section
3.2(c), Section 3.2(d), Section 3.2(e) and Section 3.2(f), as applicable, or in the case of a special meeting, in accordance with Section
3.3(c) and the requirements thereof. Only such business shall be conducted at any annual meeting of the stockholders of the Corporation
as shall have been brought before the meeting in accordance with Section 3.2(a) and in accordance with the procedures set forth in Section
3.2(b), Section 3.2(c) and Section 3(f), as applicable. Notwithstanding anything to the contrary in the Bylaws, unless otherwise required
by applicable law, in the event that any Proponent (i) provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act
with respect to one or more proposed nominees and (ii) subsequently (x) fails to comply with the requirements of Rule 14a-19 promulgated
under the Exchange Act (or fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such Proponent has
met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act in accordance with the next sentence) or (y) fails to inform
the Corporation that they no longer plan to solicit proxies in accordance with the requirements of Rule 14a-19 under the Exchange Act
by delivering a written notice to the Secretary at the principal executive offices of the Corporation within two (2) Business Days after
the occurrence of such change, then the nomination of each such proposed nominee shall be disregarded (and such nominee disqualified
from standing for election or re-election), notwithstanding that the nominee is included (as applicable) as a nominee in the Corporation’s
proxy statement, notice of meeting or other proxy materials for any stockholder meeting (or any supplement thereto) and notwithstanding
that proxies or votes in respect of the election of such proposed nominees may have been received by the Corporation (which proxies and
votes shall be disregarded). If any Proponent provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act, such Proponent
shall deliver to the Corporation, no later than five (5) Business Days prior to the applicable meeting, reasonable evidence that it has
met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act. Notwithstanding anything to the contrary set forth herein,
and for the avoidance of doubt, the nomination of any person whose name is included (as applicable) as a nominee in the Corporation’s
proxy statement, notice of meeting or other proxy materials for any stockholder meeting (or any supplement thereto) as a result of any
notice provided by any Proponent pursuant to Rule 14a-19(b) promulgated under the Exchange Act with respect to such proposed nominee
and whose nomination is not made by or at the direction of the Board or any authorized committee thereof shall not be deemed (for purposes
of clause (i) of Section 3.2(a) or otherwise) to have been made pursuant to the Corporation’s notice of meeting (or any supplement
thereto) and any such nominee may only be nominated by a Proponent pursuant to clause (iii) of Section 3.2(a) and, in the case of a special
meeting of stockholders, pursuant to and to the extent permitted under Section 3.3(c) of these Bylaws. Except as otherwise required by
applicable law, the chairperson of the meeting shall have the power and duty to determine whether a nomination or any business proposed
to be brought before the meeting was made, or proposed, as the case may be, in accordance with the procedures and requirements set forth
in the Bylaws (including, without limitation, compliance with Rule 14a-19 promulgated under the Exchange Act) and, if any proposed nomination
or business is not in compliance with the Bylaws, or the Proponent does not act in accordance with the representations required in this
Section 3.2, to declare that such proposal or nomination shall not be presented for stockholder action at the meeting and shall be disregarded
(and such nominee disqualified from standing for election or re-election), or that such business shall not be transacted, notwithstanding
that such proposal or nomination is set forth in (as applicable) the Corporation’s proxy statement, notice of meeting or other
proxy materials and notwithstanding that proxies or votes in respect of such nomination or such business may have been solicited or received.
Notwithstanding the foregoing provisions of this Section 3.2, unless otherwise required by applicable law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation to present a nomination or
proposed business, such nomination shall be disregarded (and such nominee disqualified from standing for election or re-election) and
such proposed business shall not be transacted, notwithstanding that such nomination or proposed business is set forth in (as applicable)
the Corporation’s proxy statement, notice of meeting or other proxy materials and notwithstanding that proxies or votes in respect
of such vote may have been solicited or received by the Corporation. For purposes of this Section 3.2, to be considered a qualified representative
of the stockholder, a person must be a duly authorized officer, manager, trustee or partner of such stockholder or must be authorized
by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as
proxy at the meeting of stockholders, writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission,
shall be provided to the Secretary at least five Business Days prior to the meeting of stockholders.
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(g) For
purposes of Sections 3.2 and 3.3, (1) “affiliates” and “associates” shall have the meanings set forth in Rule
405 under the Securities Act of 1933, as amended; (2) “Business Day” means any day other than Saturday, Sunday or a day on
which banks are closed in New York City, New York; (3) “close of business” means 6:00 p.m. local time at the principal executive
offices of the Corporation on any calendar day, whether or not the day is a Business Day; (4) “Derivative Transaction” means
any agreement, arrangement, interest or understanding entered into by, or on behalf or for the benefit of, any Proponent or any of its
affiliates or associates, whether record or beneficial: (A) the value of which is derived in whole or in part from the value of any class
or series of shares or other securities of the Corporation; (B) that otherwise provides any direct or indirect opportunity to gain or
share in any gain derived from a change in the value of securities of the Corporation; (C) the effect or intent of which is to mitigate
loss, manage risk or benefit from changes in value or price with respect to any securities of the Corporation; or (D) that provides the
right to vote or increase or decrease the voting power of, such Proponent, or any of its affiliates or associates, directly or indirectly,
with respect to any securities of the Corporation, which agreement, arrangement, interest or understanding may include, without limitation,
any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation or similar right, short position, profit
interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not
subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate interest of such Proponent
in the securities of the Corporation held by any general or limited partnership, or any limited liability company, of which such Proponent
is, directly or indirectly, a general partner or managing member; and (5) “public announcement” means disclosure in a press
release reported by the Dow Jones News Service, Associated Press, Business Wire, GlobeNewswire or comparable national news service or
in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act or by such other means reasonably designed to inform the public or security holders in general of such information, including,
without limitation, posting on the Corporation’s investor relations website.
Section
3.3 Special Meetings.
(a) Special
meetings of the stockholders of the Corporation may only be called in the manner provided in the Certificate of Incorporation. Any special
meeting of stockholders previously scheduled by the Board may be postponed, rescheduled or cancelled by the Board, or any director or
officer to whom the Board has delegated such authority, at any time before or after notice of such meeting has been given to stockholders.
(b) The
Board shall determine the date and time of such special meeting. Upon determination of the date, time and place, if any, of the meeting,
the Secretary shall cause a notice of meeting to be given to the stockholders entitled to vote, in accordance with the provisions of
Section 3.4.
(c) Only
such business (including the election of specific individuals to fill vacancies or newly created directorships on the Board) shall be
conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice
of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are
to be elected (i) by or at the direction of the Board or a duly authorized committee thereof or (ii) by any stockholder of the Corporation
who is a stockholder of record at the time of giving notice provided for in this paragraph and who is a stockholder of record at the
time of the special meeting, who is entitled to vote at the meeting and who complies with Sections 3.2(b)(1), 3.2(b)(4), 3.2(c), 3.2(e)
and 3.2(f). The number of nominees a stockholder may nominate for election at a special meeting on its own behalf (or in the case of
a stockholder giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at a
special meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such special meeting. In
the event the Corporation calls a special meeting of stockholders for the purpose of submitting a proposal to stockholders for the election
of one or more directors, any such stockholder of record entitled to vote in such election of directors may nominate a person or persons
(as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if written notice setting
forth the information required by Sections 3.2(b) (1) and 3.2(b)(4) shall be received by the Secretary at the principal executive offices
of the Corporation not earlier than the 120th day prior to such special meeting and not later than the close of business on the later
of (i) the 90th day prior to such meeting or (ii) the tenth day following the day on which the Corporation first makes a public announcement
of the date of the special meeting at which directors are to be elected. The stockholder shall also update and supplement such information
as required under Section 3.2(c). In no event shall an adjournment or a postponement of a special meeting for which notice has been given,
or the public announcement thereof has been made, commence a new time period (or extend any time period) for the giving of a stockholder’s
notice as described above.
A-3-28
(d) A
person shall not be eligible for election or re-election as a director at the special meeting unless the person is nominated either in
accordance with clause (i) or clause (ii) of Section 3.3(c). Except as otherwise required by applicable law, the chairperson of the meeting
shall have the power and duty to determine whether a nomination was made in accordance with the procedures and requirements set forth
in the Bylaws and, if any proposed nomination is not in compliance with the Bylaws (including, without limitation, compliance with Rule
14a-19 under the Exchange Act), or if the Proponent does not act in accordance with the representations required in Section 3.2, to declare
that such nomination shall not be presented for stockholder action at the meeting and shall be disregarded (and such nominee disqualified
from standing for election or re-election), notwithstanding that such nomination is set forth in (as applicable) the Corporation’s
proxy statement, notice of meeting or other proxy materials and notwithstanding that proxies or votes in respect of such nomination may
have been solicited or received. Notwithstanding the foregoing provisions of this Section 3.3, unless otherwise required by applicable
law, if the stockholder (or a qualified representative of the stockholder (meeting the requirements specified in Section 3.2(f)) does
not appear at the special meeting of stockholders of the Corporation to present a nomination, such nomination shall be disregarded (and
such nominee disqualified from standing for election or re-election), notwithstanding that the nomination is set forth (as applicable)
in the Corporation’s proxy statement, notice of meeting or other proxy materials and notwithstanding that proxies or votes in respect
of such nomination may have been solicited or received by the Corporation.
(e) Notwithstanding
the foregoing provisions of Sections 3.2 and 3.3, a stockholder must also comply with all applicable requirements of the Exchange Act
and the rules and regulations promulgated thereunder with respect to the matters set forth in Sections 3.2 and 3.3, and any failure to
comply with such requirements shall be deemed a failure to comply with Section 3.2 or 3.3, as applicable; provided, however, that, to
the fullest extent not prohibited by applicable law, any references in the Bylaws to the Exchange Act or the rules and regulations promulgated
thereunder arc not intended to and shall not limit the requirements applicable to proposals and/or nominations to be considered pursuant
to Sections 3.2(a)(iii) and 3.3(c). Nothing in the Bylaws shall be deemed to affect any rights of holders of any class or series of preferred
stock to nominate and elect directors pursuant to and to the extent provided in any applicable provision of the Certificate of Incorporation.
Section
3.4 Notice of Meetings. Except as otherwise provided by applicable law, the Certificate of Incorporation or the Bylaws, notice of
each meeting of stockholders shall be given not less than ten nor more than 60 days before the date of the meeting to each stockholder
entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of such meeting. Such notice
shall specify the date, time, and place, if any, of the meeting, the record date for determining stockholders entitled to vote at the
meeting, if such record date is different from the record date for determining stockholders entitled to notice of the meeting, and the
means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at any
such meeting, and, in the case of special meetings, the purpose or purposes of the meeting.
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Section
3.5 Quorum and Vote Required. At all meetings of stockholders, except where otherwise required by law or by the Certificate of Incorporation,
or by the Bylaws, the presence, in person, by remote communication, if applicable, or by proxy, of the holders of a majority of the voting
power of the outstanding shares of stock entitled to vote at the meeting shall constitute a quorum for the transaction of business. The
stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Unless a different or minimum vote is required by
law or by applicable stock exchange rules, or by the Certificate of Incorporation or the Bylaws, in which case such different or minimum
vote shall be the applicable vote on the matter, in all matters other than the election of directors, the affirmative vote of a majority
of the votes cast on such matter, voting affirmatively or negatively (excluding abstentions and broker non-votes) shall be the act of
the stockholders. Except as otherwise required by law, the Certificate of Incorporation or the Bylaws, directors shall be elected by
a plurality of the votes of the shares present in person, by remote communication, if applicable, or represented by proxy at the meeting
and entitled to vote in the election of directors. Where a separate vote by a class or classes or series is required, except as required
by law or by the Certificate of Incorporation or the Bylaws, the holders of one-third of the voting power of the outstanding shares of
such class or classes or series, present in person, by remote communication, if applicable, or represented by proxy, shall constitute
a quorum entitled to take action with respect to that vote on that matter. Unless a different or minimum vote is required by law or by
the Certificate of Incorporation or the Bylaws or any applicable stock exchange rules, in which case such different or minimum vote shall
be the applicable vote on the matter, the affirmative vote of the holders of a majority (or plurality, in the case of the election of
directors) of the votes cast on such matter, voting affirmatively or negatively (excluding abstentions and broker non-votes) shall be
the act of such class or classes or series.
Section
3.6 Adjournment and Notice of Adjourned Meetings. Any meeting of stockholders, whether annual or special, may be adjourned from time
to time either by the chairperson of the meeting or by the stockholders by the affirmative vote of a majority of the votes cast, voting
affirmatively or negatively (excluding abstentions and broker non-votes). When a meeting is adjourned to another time or place, if any,
(including an adjournment taken to address a technical failure to convene or continue a meeting using remote communication) notice need
not be given of the adjourned meeting if the time and place, if any, thereof and the means of remote communication, if any, by which
stockholders and proxyholders may be deemed present in person and may vote at such meeting are announced at the meeting at which the
adjournment is taken or are (i) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders
and proxy holders to participate in the meeting by means of remote communication or (ii) set forth in the notice of meeting given in
accordance with Section 3.4. At the adjourned meeting, the Corporation may transact any business that might have been transacted at the
original meeting. If the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote
is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned
meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall
give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date so
fixed for notice of such adjourned meeting.
Section
3.7 Voting Rights. For the purpose of determining those stockholders entitled to vote at any meeting of the stockholders or adjournment
thereof, except as otherwise provided by applicable law, only persons in whose names shares stand on the stock records of the Corporation
on the record date shall be entitled to vote at any meeting of stockholders. Each stockholder entitled to vote at a meeting of stockholders
may authorize another person or persons to act for such stockholder by proxy. No proxy shall be voted after three years from its date
of creation unless the proxy provides for a longer period. Voting at meetings of stockholders need not be by written ballot. Any stockholder
directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, which shall be reserved
for the exclusive use by the Board.
A-3-30
Section
3.8 List of Stockholders. The corporation shall prepare, no later than the tenth day before each meeting of stockholders, a complete
list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the address of each stockholder and
the number of shares registered in the name of each stockholder; provided, however, if the record date for determining the stockholders
entitled to vote is less than ten days before the meeting date, the list shall reflect all of the stockholders entitled to vote as of
the tenth day before the meeting date. Nothing in this Section 3.8 shall require the Corporation to include electronic mail addresses
or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting for a period of ten days ending on the day before the meeting date: (a) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during
ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make
the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only
to stockholders of the Corporation.
Section
3.9 Remote Communication; Delivery to the Corporation.
(a) If
authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and
proxyholders not physically present at a stockholder meeting may, by means of remote communication: (1) participate in a meeting of stockholders;
and (2) be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or
solely by means of remote communication, provided that (i) the Corporation shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Corporation
shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting
and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of
remote communication, a record of such vote or other action shall be maintained by the Corporation.
(b) Whenever
Section 3.2 or 3.3 requires one or more persons (including a record or beneficial owner of capital stock) to deliver a document or information
to the Corporation or any officer, employee or agent thereof (including any notice, request, questionnaire, revocation, representation
or other document or agreement), such document or information shall be in writing exclusively (and not in an electronic transmission)
and shall be delivered exclusively by hand (including, without limitation, overnight courier service) or by certified or registered mail,
return receipt requested and the Corporation shall not be required to accept delivery of any document not in such written form or so
delivered.
Section
3.10 Organization.
(a) At
every meeting of stockholders, a person designated by the Board shall act as chairperson of the meeting of stockholders. If no chairperson
of the meeting of stockholders is so designated, then the Chairperson of the Board, or if no Chairperson has been appointed, is absent
or refuses to act, the Chief Executive Officer, or if no Chief Executive Officer is then serving or the Chief Executive Officer is absent
or refuses to act, the President, or, if the President is absent or refuses to act, a chairperson of the meeting chosen by the stockholders
by the affirmative vote of a majority of the votes cast, voting affirmatively or negatively (excluding abstentions and broker non-votes),
shall act as chairperson of the meeting of stockholders. A person designated by the Board shall act as secretary of the meeting. If no
secretary of the meeting is designated, then the Secretary, or, in the Secretary’s absence, an Assistant Secretary or other officer
or other person directed to do so by the chairperson of the meeting, shall act as secretary of the meeting.
A-3-31
(b) The
Board shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate
or convenient. Subject to such rules and regulations of the Board, if any, the chairperson of the meeting shall have the right and authority
to convene and (for any or no reason) to recess and/ or adjourn the meeting, to prescribe such rules, regulations and procedures and
to do all such acts as, in the judgment of such chairperson, are necessary, appropriate or convenient for the proper conduct of the meeting,
including, without limitation, establishing an agenda or order of business for the meeting, rules and procedures for maintaining order
at the meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the Corporation
and their duly authorized and constituted proxies and such other persons as the chairperson shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants
and regulation of the opening and closing of the polls for balloting on matters that are to be voted on by ballot. The date and time
of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the
meeting. Unless and to the extent determined by the Board or the chairperson of the meeting, meetings of stockholders shall not be required
to be held in accordance with rules of parliamentary procedure.
(c) The
Corporation may and shall, if required by applicable law, in advance of any meeting of stockholders, appoint one or more inspectors to
act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the chairperson of the meeting
shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of the duties of inspector,
shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such
inspector’s ability. The inspectors shall: (1) ascertain the number of shares outstanding and the voting power of each; (2) determine
the shares represented at a meeting and the validity of proxies and ballots; (3) count all votes and ballots; (4) determine and retain
for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and (5) certify their
determination of the number of shares represented at the meeting, and their count of all votes and ballots. The inspectors may appoint
or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. In determining the validity
and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted with those
proxies, any information provided in accordance with Sections 211(e) or 212(c)(2) of the DGCL, or any information provided pursuant to
Sections 211 (a)(2)b.(i) or (iii) of the DGCL, ballots and the regular books and records of the Corporation, except that the inspectors
may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks,
brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to
cast, or more votes than the stockholder holds of record. If the inspectors consider other reliable information for the limited purpose
permitted herein, the inspectors at the time they make their certification pursuant to Section 231(b)(5) of the DGCL shall specify the
precise information considered by them including the person or persons from whom they obtained the information, when the information
was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is
accurate and reliable.
SECTION
4.
DIRECTORS
Section
4.1 Number. The authorized number of directors of the Corporation shall be fixed in accordance with the Certificate of Incorporation.
Section
4.2 Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as may be
otherwise provided by the Certificate of Incorporation or the DGCL.
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Section
4.3 Terms. The terms of directors shall be as set forth in the Certificate of Incorporation.
Section
4.4 Vacancies; Newly Created Directorships. Vacancies and newly created directorships on the Board shall be filled as set forth in
the Certificate of Incorporation, except as otherwise required by applicable law.
Section
4.5 Resignation. Any director may resign at any time by delivering such director’s notice in writing or by electronic transmission
to the Board or the Secretary. Such resignation shall take effect at the time of delivery of the notice or at any later time specified
therein. Acceptance of such resignation shall not be necessary to make it effective. When one or more directors shall resign from the
Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and
each director so chosen shall hold office for the unexpired portion of the term of the director whose place shall be vacated and until
such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation
or removal.
Section
4.6 Removal. Directors shall be removed as set forth in the Certificate of Incorporation.
Section
4.7 Meetings.
(a) Regular
Meetings. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board may be held at any time
or date and at any place, if any, within or without the State of Delaware that has been designated by the Board and publicized among
all directors, either orally or in writing, by telephone, including a voice-messaging system or other system designed to record and communicate
messages, facsimile or by electronic mail or other electronic means. No further notice shall be required for regular meetings of the
Board.
(b) Special
Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board may be held at any time
and place, if any, within or without the State of Delaware as designated and called by the Chairperson of the Board, the Chief Executive
Officer or the Board.
(c) Meetings
by Electronic Communications Equipment. Any member of the Board, or of any committee thereof, may participate in a meeting by means
of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other,
and participation in a meeting by such means shall constitute presence in person at such meeting.
(d) Notice
of Special Meetings. Notice of the time and place, if any, of all special meetings of the Board shall be given orally or in writing,
by telephone, including a voice messaging system or other system or technology designed to record and communicate messages, or by electronic
mail or other means of electronic transmission at least 24 hours before the date and time of the meeting. If notice is sent by U.S. mail,
it shall be sent by first class mail, postage prepaid, at least three days before the date of the meeting.
Section
4.8 Quorum and Voting.
(a) Except
as otherwise required by the DGCL, the Certificate of Incorporation or the Bylaws, a quorum of the Board shall consist of a majority
of the authorized number of directors fixed from time to time by the Board in accordance with the Certificate of Incorporation; provided,
however, at any meeting, whether a quorum is present or otherwise, a majority of the directors present may adjourn the meeting to another
time, without notice other than by announcement at the meeting.
(b) At
each meeting of the Board at which a quorum is present, all questions and business shall be determined by the affirmative vote of a majority
of the directors present, unless a different vote be required by applicable law, the Certificate of Incorporation or the Bylaws.
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Section
4.9 Action without Meeting. Unless otherwise restricted by the Certificate of Incorporation or the Bylaws, any action required or
permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board
or committee, as the case may be, consent thereto in writing or by electronic transmission. After an action is taken, such consent or
consents shall be filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes
are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section
4.10 Fees and Compensation. Unless otherwise restricted by the Certificate of Incorporation or the Bylaws, the Board, or any duly
authorized committee thereof, shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors
for services to the Corporation in any capacity.
Section
4.11 Committees.
(a) Committees.
The Board may, from time to time, appoint such committees as may be permitted by applicable law. Such committees appointed by the
Board shall consist of one or more members of the Board, and to the extent permitted by applicable law and provided in the resolution
of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of
the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee
shall have the power or authority in reference to (i) approving or adopting, or recommending to the stockholders, any action or matter
(other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (ii)
adopting, amending or repealing any Bylaw of the Corporation.
(b) Term.
The Board, subject to any requirements of any outstanding series of preferred stock and the provisions of subsection (a) of this
Section 4.11, may at any time increase or decrease the number of members of a committee or terminate the existence of a committee. The
membership of a committee member shall terminate on the date of such committee member’s death, such person’s resignation
from the committee or on such date that the committee member, for any reason, is no longer a member of the Board. The Board may at any
time for any reason remove any individual committee member and the Board may fill any committee vacancy created by death, resignation,
removal or increase in the number of members of the committee. The Board may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting of the committee, and, in addition, in the absence or
disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting
in the place of any such absent or disqualified member.
(c) Meetings.
Unless the Board shall otherwise provide, regular meetings of any committee appointed pursuant to this Section 4.11 shall be held
at such times and places, if any, as are determined by the Board, or by any such committee, and when notice thereof has been given to
each member of such committee, no further notice of such regular meetings need be given thereafter. Special meetings of any such committee
may be held at such place, if any, that has been determined from time to time by such committee, and may be called by any director who
is a member of such committee, upon notice to the members of such committee of the time and place, if any, of such special meeting given
in the manner provided for the giving of notice to members of the Board of the time and place, if any, of special meetings of the Board.
Unless otherwise provided by the Board in the resolutions authorizing the creation of the committee, the presence of at least a majority
of the members of the committee then serving shall be necessary to constitute a quorum unless the committee shall consist of one or two
members, in which event one member shall constitute a quorum; and all matters shall be determined by the affirmative vote of a majority
of the members present at a meeting of the committee at which a quorum is present.
Section
4.12 Duties of Chairperson of the Board. The Board shall elect from its ranks a Chairperson of the Board. The Chairperson of the
Board shall perform such other duties customarily associated with the office and shall also perform such other duties and have such other
powers, as the Board shall designate from time to time. The Chairperson of the Board, when present, shall preside at all meetings of
the Board in accordance with Section 4.13.
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Section
4.13 Organization. At every meeting of the directors, the Chairperson of the Board shall act as chairperson of the meeting. If a
Chairperson has not been appointed or is absent, the Chief Executive Officer (if a director), or, if a Chief Executive Officer is absent,
the President (if a director), or, in the absence of any such person, a chairperson of the meeting chosen by a majority of the directors
present, shall preside over the meeting. The Secretary, or in the Secretary’s absence, any Assistant Secretary or other officer,
director or other person directed to do so by the person presiding over the meeting, shall act as secretary of the meeting.
SECTION
5.
OFFICERS
Section
5.1 Officers Designated. The officers of the Corporation shall include, if and when designated by the Board, the Chief Executive
Officer, the President, the Secretary and the Treasurer. The Board may also appoint one or more Assistant Secretaries and Assistant Treasurers
and such other officers and agents with such powers and duties as it shall deem appropriate or necessary. The Board may assign such additional
titles to one or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the Corporation
at any one time unless specifically prohibited therefrom by applicable law, the Certificate of Incorporation or the Bylaws.
Section
5.2 Tenure and Duties of Officers.
(a) General.
All officers shall hold office at the pleasure of the Board and until their successors shall have been duly elected and qualified, subject
to such officer’s earlier death, resignation or removal. If the office of any officer becomes vacant for any reason, the vacancy
may be filled by the Board or by a committee thereof to which the Board has delegated such responsibility or, if so authorized by the
Board, by the Chief Executive Officer or another officer of the Corporation.
(b) Duties
of Chief Executive Officer. The Chief Executive Officer shall preside, if a director, at all meetings of the Board, unless a Chairperson
of the Board has been appointed and is present. The Chief Executive Officer shall be the chief executive officer of the Corporation and,
subject to the supervision, direction and control of the Board, shall have the general powers and duties of supervision, direction, management
and control of the business and officers of the Corporation as arc customarily associated with the position of Chief Executive Officer.
To the extent that a Chief Executive Officer has been appointed and no President has been appointed, all references in the Bylaws to
the President shall be deemed references to the Chief Executive Officer. The Chief Executive Officer shall perform other duties customarily
associated with the office and shall also perform such other duties and have such other powers, as the Board shall designate from time
to time.
(c) Duties
of President. The President shall preside, if a director, at all meetings of the Board, unless a Chairperson of the Board or Chief
Executive Officer has been appointed and is present. Unless another officer has been appointed Chief Executive Officer of the Corporation,
the President shall be the chief executive officer of the Corporation and, subject to the supervision, direction and control of the Board,
shall have the general powers and duties of supervision, direction, management and control of the business and officers of the Corporation
as are customarily associated with the position of President. The President shall perform other duties customarily associated with the
office and shall also perform such other duties and have such other powers, as the Board (or the Chief Executive Officer, if the Chief
Executive Officer and President are not the same person and the Board has delegated the designation of the President’s duties to
the Chief Executive Officer) shall designate from time to time.
(d) Duties
of Secretary and Assistant Secretary. The Secretary shall attend all meetings of the stockholders and of the Board and shall record
all acts, votes and proceedings thereof in the minute books of the Corporation. The Secretary shall give, or cause to be given, notice
in conformity with the Bylaws of all meetings of the stockholders and of all meetings of the Board and any committee thereof requiring
notice. The Secretary shall perform all other duties provided for in the Bylaws and other duties customarily associated with the office
and shall also perform such other duties and have such other powers, as the Board or the Chief Executive Officer, or if no Chief Executive
Officer is then serving, the President shall designate from time to time. The Chief Executive Officer, or if no Chief Executive Officer
is then serving, the President may direct any Assistant Secretary or other officer to assume and perform the duties of the Secretary
in the absence or disability of the Secretary, and each Assistant Secretary shall perform other duties customarily associated with the
office and shall also perform such other duties and have such other powers as the Board or the Chief Executive Officer, or if no Chief
Executive Officer is then serving, the President shall designate from time to time.
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(e) Duties
of Treasurer and Assistant Treasurer. The Treasurer shall keep or cause to be kept the books of account of the Corporation in a thorough
and proper manner and shall render statements of the financial affairs of the Corporation in such form and as often as required by the
Board, the Chief Executive Officer or the President. The Treasurer, subject to the order of the Board, shall have the custody of all
funds and securities of the Corporation. The Treasurer shall perform other duties customarily associated with the office and shall also
perform such other duties and have such other powers as the Board or the Chief Executive Officer, or if no Chief Executive Officer is
then serving, the President shall designate from time to time. The Chief Executive Officer, or if no Chief Executive Officer is then
serving, the President may direct any Assistant Treasurer or other officer to assume and perform the duties of the Treasurer in the absence
or disability of the Treasurer, and each Assistant Treasurer shall perform other duties commonly incident to the office and shall also
perform such other duties and have such other powers as the Board or the Chief Executive Officer, or if no Chief Executive Officer is
then serving, the President shall designate from time to time.
Section
5.3 Delegation of Authority. The Board may from time to time delegate the powers or duties of any officer to any other officer or
agent, notwithstanding any provision hereof.
Section
5.4 Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board, the
Chairperson of the Board, the Chief Executive Officer, the President or the Secretary. Any such resignation shall be effective when received
by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall
become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary
to make it effective. Any resignation shall be without prejudice to the rights, if any, of the Corporation under any contract with the
resigning officer.
Section
5.5 Contracts and Other Documents. The Chief Executive Officer and the Secretary, or such other officer or officers as may from time
to time be authorized by the Board or any other committee given specific authority in the premises by the Board during the intervals
between the meetings of the Board, shall have power to sign and execute on behalf of the Corporation deeds, conveyances and contracts,
and any and all other documents requiring execution by the Corporation.
Section
5.6 Removal. Any officer may be removed from office at any time, either with or without cause, by the Board, or by any duly authorized
committee thereof or any officer upon whom such power of removal may have been conferred by the Board.
SECTION
6. EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION
Section
6.1 Execution of Corporate Instruments. The Board may, in its discretion, determine the method and designate the signatory officer
or officers, or other person or persons, to execute, sign or endorse on behalf of the Corporation any corporate instrument or document,
or to sign on behalf of the Corporation the corporate name without limitation, or to enter into contracts on behalf of the Corporation,
except where otherwise provided by applicable law or the Bylaws, and such execution or signature shall be binding upon the Corporation.
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(a) All
checks and drafts drawn on banks or other depositaries on funds to the credit of the Corporation or in special accounts of the Corporation
shall be signed by such person or persons as the Board shall from time to time authorize so to do.
(b) Unless
otherwise specifically determined by the Board or otherwise required by applicable law, the execution, signing or endorsement of any
corporate instrument or document by or on behalf of the Corporation may be effected manually, by facsimile or (to the extent not prohibited
by applicable law and subject to such policies and procedures as the Corporation may have in effect from time to time) by electronic
signature.
(c) Unless
authorized or ratified by the Board or within the agency power of an officer, no officer, agent or employee shall have any power or authority
to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
Section
6.2 Voting of Securities Owned by the Corporation. All stock and other securities of or interests in other corporations or entities
owned or held by the Corporation for itself, or for other parties in any capacity, shall be voted, and all proxies and consents with
respect thereto shall be executed, by the person authorized to do so by resolution of the Board, or, in the absence of such authorization,
by the Chairperson of the Board, the Chief Executive Officer, or the President.
SECTION
7.
SHARES
OF STOCK
Section
7.1 Form and Execution of Certificates. The shares of the Corporation shall be represented by certificates, or shall be uncertificated
if so provided by resolution or resolutions of the Board. Certificates for the shares of stock of the Corporation, if any, shall be in
such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock in the Corporation represented
by certificates shall be entitled to have a certificate signed by or in the name of the Corporation by any two authorized officers of
the Corporation (including, without limitation, the Chairperson of the Board, the Chief Executive Officer, the President, the Treasurer,
any Assistant Treasurer, the Secretary and any Assistant Secretary), certifying the number, and the class or series, of shares owned
by such holder in the Corporation in certificated form. Any or all of the signatures on the certificate may be facsimiles. In case any
officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he or
she were such officer, transfer agent, or registrar at the date of issue.
Section
7.2 Lost Certificates. The Corporation may issue a new certificate or certificates or uncertificated shares in place of any certificate
or certificates theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen, or destroyed. The Corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or certificates,
or the owner’s legal representative, to give the Corporation a bond (or other adequate security) sufficient to indemnify the Corporation
against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen, or destroyed
or the issuance of such new certificate(s) or uncertificated shares.
Section
7.3 Transfers.
(a) Transfers
of record of shares of stock of the Corporation shall be made only upon its books by the holders thereof, in person or by attorney duly
authorized, and, in the case of stock represented by certificate, upon the surrender of a properly endorsed certificate or certificates
for a like number of shares.
(b) The
Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes or series
of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes or series owned
by such stockholders in any manner not prohibited by the DGCL.
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Section
7.4 Fixing Record Dates.
(a) In
order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof,
the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board, and which record date shall, subject to applicable law, not be more than 60 nor less than ten days before the date of such
meeting. If the Board so fixes a record date for determining the stockholders entitled to notice of any meeting of stockholders, such
date shall also be the record date for determining the stockholders entitled to vote at such meeting, unless the Board determines, at
the time it fixes the record date for determining the stockholders entitled to notice of such meeting, that a later date on or before
the date of the meeting shall be the record date for determining the stockholders entitled to vote at such meeting. If no record date
is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is given, or if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record
date for determining the stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for
stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determining the stockholders
entitled to vote in accordance with the provisions of this Section 7.4(a).
(b) In
order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix, in advance, a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record
date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which
the Board adopts the resolution relating to such action.
Section
7.5 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
Section
7.6 Additional Powers of the Board. In addition to, and without limiting, the powers set forth in the Bylaws, the Board shall have
power and authority to make all such rules and regulations as it shall deem expedient concerning the issue, transfer, and registration
of certificates for shares of stock of the Corporation, including the use of uncertificated shares of stock, subject to the provisions
of the DGCL, other applicable law, the Certificate of Incorporation and the Bylaws. The Board may appoint and remove transfer agents
and registrars of transfers, and may require all stock certificates to bear the signature of any such transfer agent and/ or any such
registrar of transfers.
Section
7.7 Lock-Up.
(a)
Transfer Restriction. Subject to Sections 7.7(b) and 7.7(c), during the Lock-up Period no Locked-up Holder may Transfer any Lock-up
Shares. From and after the expiration of the Lock-up Period, the Lock-up Shares shall cease to be subject to the restrictions set forth
in this Section 7.7. The restrictions on Transfer imposed by this Section 7.7 are imposed pursuant to Section 202 of the DGCL, and the
Lock-up Shares shall carry appropriate legends (or, in the case of uncertificated shares, appropriate notations in the notice contemplated
by Section 151(f) of the DGCL) indicating such restrictions.
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(b) Permitted
Transfers. Notwithstanding Section 7.7(a), a Locked-up Holder or its Permitted Transferee may Transfer Lock-up Shares during the
Lock-up Period (i) in the case of an individual, (A) by gift to an immediate family member, a charitable organization or a trust or other
entity formed for estate planning purposes for the benefit of an immediate family member, (B) by will, intestacy or the laws of descent
and distribution upon the death of such individual, or (C) pursuant to a qualified domestic relations order; (ii) in the case of a corporation,
limited liability company, partnership, trust or other entity, to any stockholder, member, partner or trust beneficiary as part of a
distribution, or to any affiliate (as defined in Rule 405 under the Securities Act of 1933, as amended) of such Locked-up Holder; (iii)
in the event of a liquidation, merger, stock exchange or other similar transaction that results in all of the Corporation’s stockholders
having the right to exchange their shares of capital stock of the Corporation for cash, securities or other property; (iv) to the Corporation
in connection with the “net” or “cashless” exercise of options or other rights to purchase shares of capital
stock of the Corporation, or in satisfaction of any tax withholding obligations upon exercise, vesting or settlement thereof; (v) pursuant
to a bona fide offer to purchase or exchange shares of Common Stock that is made to all holders of Common Stock and approved by the Board,
including any tender or exchange of Lock-up Shares into, and any Transfer pursuant to, such offer (whether made by a third-party or the
Corporation) or (vi) in a negotiated secondary transaction with the prior approval of the Board; provided, however, that, in the case
of clauses (X) (i) and (ii), such Transfer shall not involve a disposition for value; and (Y) (i), (ii) and (vi) it shall be a condition
to such Transfer that the transferee execute and deliver to the Corporation a written agreement, in form and substance reasonably satisfactory
to the Corporation, to be bound by the restrictions set forth in this Section 7.7 as a Locked-up Holder prior to such Transfer.
(c) Coordinated
Sale Process. Notwithstanding Section 7.7(a), during the Coordinated Sale Period a Locked-up Holder may sell Lock-up Shares, subject
to each of the following conditions.
(i) Coordinating
Broker. All such sales shall be effected solely through a Coordinating Broker, which shall use commercially reasonable efforts to
(A) aggregate the sell orders of participating Locked-up Holders into a common pool, (B) offer the pooled Lock-up Shares to the market,
and (C) allocate the resulting proceeds pro rata among the participating Locked-up Holders by reference to each such holder’s specified
minimum sale price (if any), such that a holder shall participate in a sale, and receive proceeds therefrom, only to the extent the price
achieved equals or exceeds any minimum price so specified by such holder.
(ii) Periodic
Sales Limitation. The number of Lock-up Shares which may be sold by a Locked-up Holder pursuant to this Section 7.7(c) during any
Measurement Period shall not exceed 25% of such Locked-up Holder’s Base Holdings (the “Periodic Sales Limitation”).
The Periodic Sales Limitation shall apply separately to each Measurement Period, and any unused portion of the Periodic Sales Limitation
for a Measurement Period shall expire on the last day thereof and shall not increase the Periodic Sales Limitation for any subsequent
Measurement Period.
For
the avoidance of doubt, no Lock-up Shares may be sold pursuant to this Section 7.7(c) during the Initial Lock-up Period.
(d) Board
Authority. The Board may (i) waive, amend, or repeal, in whole or in part, any of the restrictions set forth in this Section 7.7,
or otherwise release Lock-up Shares from this Section 7.7 prior to the expiration of the Lock-up Period, provided that any such waiver,
amendment, repeal, or release shall be applied on a pro rata or such other uniform basis determined by the Board among all Locked-up
Holders, so that no Locked-up Holder is disproportionately released (whether adversely or beneficially) relative to the other Locked-up
Holders; (ii) designate, approve, replace or remove one or more Coordinating Brokers; (iii) determine any equitable adjustment contemplated
by this Section 7.7; and (iv) interpret and administer this Section 7.7 and resolve any ambiguity herein, in each case acting in good
faith ; provided that, nothing herein shall (i) modify the fiduciary duties of directors to the Corporation and its stockholders,
(ii) alter the standard of review a court of competent jurisdiction may apply to review determinations or calculations (or any omission
with respect to the foregoing) by the Board (or a committee thereof, as applicable) for compliance with the directors’ fiduciary
duties to the Corporation and its stockholders or (iii) provide for an elimination or limitation of the personal liability of directors
to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the extent not permitted by
Section 102(b)(7) of the DGCL, as amended from time to time; provided further that, notwithstanding the foregoing, and for the avoidance
of doubt, for purposes of applying this Section 7.7(d) to any contract authorized by Section 122(18) of the DGCL, a restriction, prohibition,
or covenant in any such contract that relates to any specified action shall not be deemed contrary to this Section 7.7(d) by reason of
a provision hereof that authorizes or empowers, or exclusively authorizes or empowers, the Board to take such action.
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(e) Non-Permitted
Transfers. any transfer in violation or breach of this Section 7.7 shall be null and void, and the Corporation, and any duly appointed
transfer agent for the registration or transfer of the Corporation’s securities, shall decline to register, recognize or make any
Transfer of securities if such Transfer would constitute a violation or breach of this Section 7.7.
(f) Contractual
Arrangements. Nothing in this Section 7.7 shall modify any contractual obligations between the Corporation and any stockholder that
imposes more restrictive transfer restrictions on Lock-Up Shares, including under any lock-up agreement, support agreement or similar
instrument. If a Locked-up Holder is party to any such contractual arrangement imposing transfer restrictions on Lock-up Shares, then,
as between this Section 7.7 and such contractual arrangement, the more restrictive provision shall control with respect to such Locked-up
Holder. For the avoidance of doubt, this Section 7.7 shall not apply to any shares of Common Stock held by American Ventures LLC, Series
XIV JFB or any of its affiliates or transferees, whose transfer arrangements are governed exclusively by the Amended and Restated Support
agreement and shall apply to the Xtend Supporting Shareholders.
(g) Definitions. For purposes of this Section 7.7 only:
(i) “Amended
and Restated Support Agreement” means that certain Pubco Amended and Restated Support Agreement by and among American Ventures
LLC, Series XIV JFB, XTEND Reality Expansion Ltd. and JFB Construction Holdings dated as of July 16, 2026, as the same may be amended,
restated or supplemented from time to time.
(ii) “Base
Holdings” means, with respect to a Locked-up Holder, the aggregate number of Lock-up Shares held by such Locked-up Holder
(including Lock-up Shares underlying options, warrants, convertible securities or other equity-linked instruments held by such Locked-up
Holder) as of the expiration of the Initial Lock-up Period, subject to equitable adjustment for any stock split, reverse stock split,
stock dividend, combination, recapitalization or similar event. A Permitted Transferee’s Base Holdings shall be determined by reference
to the transferring Locked-up Holder’s Base Holdings, allocated between transferor and transferee in proportion to the Lock-up
Shares transferred, such that no Transfer to a Permitted Transferee increases the aggregate Periodic Sales Limitation applicable to the
transferor and transferee taken together.
(iii) “Closing”
and “Closing Date” have the respective meanings given to such terms in the Merger Agreement.
(iv) “Common Stock” means the common stock, par value $0.0001 per share, of the Corporation.
(v) “Coordinated
Sale Period” means the period beginning immediately upon the expiration of the Initial Lock-up Period and ending upon the
expiration of the Lock-up Period, comprising the three Measurement Periods.
(vi) “Coordinating
Broker” means any registered broker-dealer designated or approved by the Board from time to time to coordinate sales of
Lock-up Shares pursuant to Section 7.7(c), and, if more than one broker-dealer is so designated or approved, each such broker-dealer
with respect to the sales coordinated by it.
A-3-40
(vii) “Exempted
PIPE Shares” means all shares of common stock of JFB Construction Holdings issued pursuant to those certain Securities
Purchase Agreements issued by JFB Construction Holdings on February 13, 2026 to the holders identified therein.
(viii) “Exempted
SAFE Shares” means all shares of Common Stock issued at or in connection with the Closing in exchange for ordinary share
issued pursuant to the Simple Agreements for Future Equity (SAFEs) issued by Xtend Reality Expansion Ltd. on or about February 10, 2026
and February 13, 2026 to the holders identified therein, as such SAFEs were amended and restated in March 2026.
(ix) “Initial
Lock-up Period” means the period beginning on the Closing Date and ending at 11:59 p.m., New York City time, on the date
that is 180 days after the Closing Date.
(x) “Lock-up
Period” means the period beginning on the Closing Date and ending at 11:59 p.m., New York City time, on the date that is
270 days after the Closing Date.
(xi) “Lock-up
Shares” means all shares of Common Stock issued at or in connection with the Closing, including (A) shares of Common Stock
issued as consideration in the Mergers (as defined in the Merger Agreement) in respect of share capital of XTEND Reality Expansion Ltd.
(including share capital issued upon conversion of simple agreements for future equity of XTEND Reality Expansion Ltd.) or shares of
common stock of JFB Construction Holdings (including, for the avoidance of doubt, any shares of Common Stock underlying options, warrants,
convertible securities or other equity-linked instruments assumed or issued in connection with the Mergers) and excluding (w) Exempted
SAFE Shares and Exempted PIPE Shares, (x) the Public JFB Shares, (y) any shares of Common Stock held by American Ventures LLC, Series
XIV JFB or any of its affiliates or transferees, which are governed by the contractual lock-up restrictions set forth in the Amended
and Restated Support Agreement, and (z) any shares of Common Stock acquired in open market transactions not in violation or breach of
this Section 7.7 after the Closing.
(xii) “Locked-up
Holders” means the holders of Lock-up Shares, together with their Permitted Transferees holding Lock-up Shares; provided
that, for the avoidance of doubt, none of American Ventures LLC, Series XIV JFB or any of its affiliates or transferees shall be deemed
a Locked-up Holder.
(xiii) “Measurement
Period” means each of the three successive periods of 30 calendar days comprising the Coordinated Sale Period, the first
such period commencing immediately upon the expiration of the Initial Lock-up Period.
(xiv) “Merger
Agreement” means that certain Agreement and Plan of Merger, dated as of February 13, 2026, by and among JFB Construction
Holdings, the Corporation, XT Merger Sub 2, Inc. and XTEND Reality Expansion Ltd., as the same may be amended, restated or supplemented
from time to time.
(xv) “Permitted
Transferee” means any transferee receiving Lock-up Shares in a Transfer permitted by Section 7.7(b).
(xvi) “Public
JFB Shares” means the shares of Common Stock issued at or in connection with the Closing in respect of shares of common
stock of JFB Construction Holdings that, immediately prior to the Closing, (A) did not constitute “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act of 1933, as amended, and (B) were not held by any affiliate (as defined
in Rule 405 under the Securities Act of 1933, as amended) of JFB Construction Holdings, including any director or executive officer of
JFB Construction Holdings, any person party to a support agreement entered into in connection with the Merger Agreement, and any affiliate
of any of the foregoing.
(xvii) “Transfer”
means (A) to lend, offer, pledge, hypothecate, encumber, donate, assign, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose
of, directly or indirectly, any Lock-up Shares, (B) to 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 Lock-up Shares, or (C) to publicly disclose the intention to do any of
the foregoing, whether any such transaction described in clause (A), (B) or (C) is to be settled by delivery of Lock-up Shares or other
securities, in cash or otherwise.
(xviii) “Xtend
Supporting Shareholders” means the directors, officers and certain major shareholders of XTEND Reality Expansion Ltd. holding
a sufficient number of the issued and outstanding share capital of XTEND Reality Expansion Ltd. required to approve the merger agreement
and transactions contemplated thereby.
A-3-41
SECTION 8.
OTHER
SECURITIES OF THE CORPORATION
Section
8.1 Execution of Other Securities. All bonds, debentures and other corporate securities of the Corporation, other than stock certificates
(covered in Section 7.1), may be signed by the Chairperson of the Board, the Chief Executive Officer, or the President, or such other
person as may be authorized by the Board; provided, however, that where any such bond, debenture or other corporate security shall be
authenticated by the manual signature, or where permissible facsimile signature, of a trustee under an indenture pursuant to which such
bond, debenture or other corporate security shall be issued, the signatures of the persons signing and attesting the corporate seal on
such bond, debenture or other corporate security may be the imprinted facsimile of the signatures of such persons. Interest coupons appertaining
to any such bond, debenture or other corporate security, authenticated by a trustee as aforesaid, shall be signed by the Treasurer or
an Assistant Treasurer of the Corporation or such other person as may be authorized by the Board, or bear imprinted thereon the facsimile
signature of such person. In case any officer who shall have signed or attested any bond, debenture or other corporate security, or whose
facsimile signature shall appear thereon or on any such interest coupon, shall have ceased to be such officer before the bond, debenture
or other corporate security so signed or attested shall have been delivered, such bond, debenture or other corporate security nevertheless
may be adopted by the Corporation and issued and delivered as though the person who signed the same or whose facsimile signature shall
have been used thereon had not ceased to be such officer of the Corporation.
SECTION
9.
DIVIDENDS
Section
9.1 Declaration of Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of
Incorporation and applicable law, if any, may be declared by the Board. Dividends may be paid in cash, in property, or in shares of capital
stock or other securities of the Corporation, subject to the provisions of the Certificate of Incorporation and applicable law.
Section
9.2 Dividend Reserve. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends
such sum or sums as the Board from time to time, in its absolute discretion, determines proper as a reserve or reserves to meet contingencies,
or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose or purposes as
the Board shall determine to be conducive to the interests of the Corporation, and the Board may modify or abolish any such reserve in
the manner in which it was created.
SECTION
10.
FISCAL
YEAR
Section
10.1 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board and may be changed by the Board.
A-3-42
SECTION
11.
INDEMNIFICATIONS
Section
11.1 Indemnification of Directors, Executive Officers, Other Officers, Employees and Other Agents.
(a) Directors
and Executive Officers. The Corporation shall indemnify to the fullest extent permitted by the DGCL as it presently exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), any person who was or is
made or is threatened to be made a party or is otherwise involved in a Proceeding, by reason of the fact that such person is or was a
director or executive officer (for the purposes of this Section 11.1, “executive officer” has the meaning defined in Rule
3b-7 promulgated under the Exchange Act) of the Corporation, or while serving as a director or executive officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, whether the basis of such Proceeding is alleged action in an official capacity
as a director or executive officer or in any other capacity while serving as a director or executive officer, against all expense, liability
and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such person in connection therewith; provided, however, that the Corporation will not be required to indemnify
or advance expenses to any director or executive officer in connection with any Proceeding (or part thereof) initiated by such person
unless (i) the Proceeding (or part thereof) was authorized by the Board or (ii) the Proceeding (or part thereof) is initiated to enforce
rights to indemnification or advancement of expenses as provided under subsection (d) of this Section 11.1 or is a compulsory counterclaim
brought by such person.
(b) Other
Officers, Employees and Other Agents. The Corporation shall have power to indemnify and advance expenses to its other officers, employees
and other agents to the fullest extent permitted by the DGCL.
(c) Expenses.
The Corporation shall advance to any current or former director or executive officer of the Corporation, or to any person, who while
serving as a director or executive officer of the Corporation, is or was serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, prior to the final disposition
of the Proceeding, promptly following request therefor, all expenses incurred by such person in defending (or participating as a witness
in) any Proceeding referred to in Section 11.1(a), or in connection with a Proceeding brought to establish or enforce a right to indemnification
or advancement of expenses under subsection (d) of this Section 11.1, provided, however, that, if the DGCL requires, or in the case of
an advance made in a Proceeding brought to establish or enforce a right to indemnification or advancement, an advancement of expenses
incurred by a current or former director or executive officer in such director’s or executive officer’s capacity as a director
or executive officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) will be made only upon delivery to the Corporation of an undertaking, by or on behalf of such indemnitee,
to repay all amounts so advanced if it is ultimately determined by final judicial decision from which there is no further right to appeal
that such indemnitee is not entitled to be indemnified or entitled to advancement for such expenses under this Section 11.1 or otherwise.
(d) Enforcement.
Without the necessity of entering into an express contract, all rights to indemnification and advances to directors and executive
officers under this Section 11.1 will be deemed to be contractual rights and be effective to the same extent and as if provided for in
a contract between the Corporation and the director or executive officer. Any right to indemnification or advancement of expenses granted
by this Section 11.1 to a current or former director or executive officer will be enforceable by or on behalf of the person holding such
right in any court of competent jurisdiction if (i) the claim for indemnification or advancement of expenses is denied, in whole or in
part, (ii) no disposition of a claim for indemnification is made within 60 days of request therefor, or (iii) no disposition of a claim
for an advance is made within 30 days of request therefor. The claimant in such enforcement action, if successful in whole or in part,
or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, will be entitled
to be paid also the expense of prosecuting or defending the claim to the fullest extent permitted by the DGCL. In (i) any suit brought
to enforce a right to indemnification hereunder (but not in a suit brought to enforce a right to an advancement of expenses), it shall
be a defense that, and (ii) any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking,
the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable
standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its Board, independent legal counsel
or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper
in the circumstances because such person has met the applicable standard of conduct set forth in the DGCL, nor an actual determination
by the Corporation (including its Board, independent legal counsel or its stockholders) that the claimant has not met such applicable
standard of conduct, will be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct.
In any suit brought by a current or former director or executive officer to enforce a right to indemnification or to an advancement of
expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the director or executive officer is not entitled to be indemnified, or to such advancement of expenses, under
this Section 11.1 or otherwise is on the Corporation.
A-3-43
(e) Non-Exclusivity
of Rights. The rights conferred on any person by this Section 11.1 are not exclusive of any other right that such person may have
or hereafter acquire under any applicable law, provision of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity
while holding office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the fullest extent not prohibited by the DGCL.
(f) Survival
of Rights. The rights conferred on any person by this Section 11.1 will continue as to a person who has ceased to be a director or
executive officer and will inure to the benefit of the heirs, executors and administrators of such person.
(g) Insurance.
To the fullest extent permitted by the DGCL, the Corporation may purchase insurance on behalf of any person required or permitted to
be indemnified pursuant to this Section 11.1.
(h) Amendments.
Any repeal or modification of this Section 11.1 is only prospective and does not affect the rights under these Bylaws in effect at
the time of the alleged occurrence of any action or omission to act that is the cause of any Proceeding against any current or former
director or executive officer of the Corporation.
(i) Saving
Clause. If this Section 11 or any portion hereof is invalidated on any ground by any court of competent jurisdiction, then the Corporation
will nevertheless indemnify and advance expenses to each director and executive officer to the fullest extent not prohibited by any applicable
portion of this Section 11 that has not been invalidated, or by any. If this Section 11 is invalid due to the application of the indemnification
and advancement provisions of another jurisdiction, then the Corporation will indemnify and advance expenses to each director and executive
officer to the fullest extent under applicable law.
(j) Certain
Definitions. For the purposes of this Section 11, the following definitions apply: (1) The term “Proceeding” is to be
broadly construed and includes, without limitation, the investigation, preparation, prosecution, defense, settlement, arbitration and
appeal of, and the giving of testimony in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative. (2) The term “expenses” is to be broadly construed and includes, without limitation, court
costs, attorneys’ fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature
or kind incurred in connection with any proceeding. (3) The term the “Corporation” includes, in addition to the resulting
corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger that, if
its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents,
so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, stands in the same position under the provisions of this Section 11 with respect to
the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence
had continued. (4) References to “fines” include any excise taxes assessed on a person with respect to an employee benefit
plan.
A-3-44
SECTION
12.
NOTICES
Section
12.1 Notices.
(a) Notice
to Stockholders. Notice to stockholders of stockholder meetings shall be given as provided in Section 3.4. Without limiting the manner
by which notice may otherwise be given effectively to stockholders under any agreement or contract with such stockholder, and except
as otherwise required by applicable law, written notice to stockholders for purposes other than stockholder meetings may be sent by U.S.
mail or courier service, facsimile or by electronic mail or other means of electronic transmission in accordance with Section 232 of
the DGCL.
(b) Notice
to Directors. Any notice required to be given to any director may be given by the method stated in subsection (a) or as otherwise
provided in the Bylaws, with notice other than one that is delivered personally to be sent to such address or electronic mail address
as such director shall have filed in writing with the Secretary, or, in the absence of such filing, to the last known address or electronic
mail address of such director.
(c) Affidavit
of Mailing. An affidavit of notice, executed by a duly authorized and competent employee of the Corporation or its transfer agent
appointed with respect to the class of stock affected, or other agent, specifying the name and address or the names and addresses of
the stockholder or stockholders, or director or directors, to whom any such notice or notices was or were given, and the time and method
of giving the same, shall in the absence of fraud, be prima facie evidence of the facts therein contained.
(d) Methods
of Notice. It shall not be necessary that the same method of giving notice be employed in respect of all recipients of notice, but
one permissible method may be employed in respect of any one or more, and any other permissible method or methods may be employed in
respect of any other or others.
(e) Notice
to Person with Whom Communication is Unlawful. Whenever notice is required to be given, under applicable law or any provision of
the Certificate of Incorporation or Bylaws, to any person with whom communication is unlawful, the giving of such notice to such person
shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such
notice to such person. Any action or meeting that shall be taken or held without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation
is such as to require the filing of a certificate under any provision of the DGCL, the certificate shall state, if such is the fact and
if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is
unlawful.
A-3-45
(f) Notice
to Stockholders Sharing an Address. Except as otherwise prohibited under the DGCL, any notice given under the provisions of the DGCL,
the Certificate of Incorporation or the Bylaws shall be effective if given by a single written notice to stockholders who share an address
if consented to by the stockholders at that address to whom such notice is given. Such consent shall be deemed to have been given if
such stockholder fails to object in writing to the Corporation within 60 days of having been given notice by the Corporation of its intention
to send the single notice. Any consent shall be revocable by the stockholder by written notice to the Corporation.
(g) Waiver.
Whenever notice is required to be given under any provision of the DGCL, the Certificate of Incorporation or the Bylaws, a written
waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice or any waiver by electronic transmission unless so required by the Certificate of Incorporation or the
Bylaws.
SECTION
13.
AMENDMENTS
Section
13.1 Amendments. Subject to the limitations set forth in Section 11.1(h) or the Certificate of Incorporation, the Board is expressly
empowered to adopt, amend or repeal the Bylaws of the Corporation. The stockholders also shall have power to adopt, amend or repeal the
Bylaws of the Corporation; provided, however, that, in addition to any vote of the holders of any class or series of stock of the Corporation
required by applicable law or by the Certificate of Incorporation (including any certificate of designation relating to any series of
Preferred Stock (as defined in the Certificate of Incorporation)), such action by stockholders shall require the affirmative vote of
the holders of at least 66 2/3 % of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled
to vote thereon, voting together as a single class.
A-3-46
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
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- Definition
Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
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- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
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- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
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