43North LLC, a New York limited liability company (hereinafter “43North”) is undertaking a business venture competition subject to the following terms and conditions (the “Competition”). Submission of an application in the Competition constitutes a legally binding agreement between the applicant and 43North according to the terms, conditions, and covenants contained herein. Purpose The purpose of the Competition is to be part of an overall program aimed at systematically generating more start-up enterprises in Western New York by (i) facilitating applied research and development and enhancing mentoring and other supports for aspiring entrepreneurs, (ii) supporting early-stage firm growth and (iii) attracting more venture funding. This Competition will award a total of up to $5 million in prizes, with $1 million per company. It will attract entrepreneurs from around the world to compete for prizes that will turn startup companies with high growth potential into funded enterprises in our region. The campaign will have three features: the Competition (described herein), an “incubator/accelerator” facility located in Western New York, and facilitation of investment in winners of the competition. Nature of Businesses The Competition focuses on applicants that are operating companies. All applicants must be seeking outside equity capital in addition to the money to be awarded in the Competition. Excluded Applicants The following businesses are not eligible for the Competition: (1) retail businesses with brick and mortar storefronts, (2) residential real property business, 3) investment vehicles that invest in the securities of other entities, (4) sports venues, (5) gaming and gambling businesses, (6) places of overnight accommodation, (7) past 43North cash-prize winners, (8) entertainment-related establishments, and (9) single-purpose entertainment or event productions (e.g. movies, albums, concerts). For this purpose, “retail business” means a business that is primarily engaged in making retail sales of goods or services to customers who personally visit such facilities to obtain goods or services. In addition, generally excluded are the following: buy-outs, roll-ups, real estate syndications, tax shelters and franchise-based outlets. Equity Investment Awards, Benefits and Conditions Award Amounts and Additional Benefits. 43North will make up to the following equity investment awards (an “Award”) to the winners of the Competition:
- five awards of $1 million in equity investment
All Award recipients will receive: (a) access to our business acceleration facility located in Western New York, (b) mentorship from experienced entrepreneurs and (c) exposure to sponsors and stakeholders. Staged Payment. Recipients will receive their equity investment in staged payments, payable as engagement metrics are met throughout 2025. Equity Interest to be issued to 43North. As a condition of the Award, Recipients must issue to 43North a purchase right (a “Warrant”) that enables 43North to purchase from the recipient a number of the most senior equity securities of recipient that is equal to 5% of the fully diluted outstanding equity of the recipient at the time the Warrant is exercised. The Warrant will remain in effect for a period of ten (10) years following the effective date of the Warrant. The closing price at the time of exercise will be the nominal amount of $100.00. For clarity, 43North would have the right to purchase a 5% interest in each recipient for a nominal closing price of $100.00 at any time during the ten (10) years following the date of the Warrant. Exercise of the Warrant by 43North is required in the event that the Awardee undertakes a “Qualified Round” as that term is defined below. 43North may assign its rights under the Warrant or any equity security issued under the Warrant to any not-for-profit entity that is substantially funded by the State of New York. Warrant Exercise; Conversion Base. The Warrant shall be exercisable for a period of ten (10) years from the date of the issuance specified above (the “Exercise Period”). During the Exercise Period, the Holder shall have the right, to be exercised at any time and from time to time and in the sole discretion of the Holder, or as required in the event of a Qualified Round, to purchase from the Company the number of Warrant Shares that is equal to the product of multiplying the Warrant Coverage Percentage, times the total capital stock or equivalent equity interest of the Company issued and outstanding on the date of exercise, computed on a fully diluted basis (the “Company Equity”), assuming, among other things, that all Company Equity that could be issued pursuant to the terms of any other stock option plan, convertible security, or any other document or agreement that could result in the issuance of additional Company Equity have been issued (the “Conversion Base”). In the event that this Warrant is exercised in connection with an equity financing of the Company, the Conversion Base shall be determined as of the time of the closing of such equity financing. Recipients shall notify 43North, in advance, of any event that may give rise to 43Noth’s right to exercise the Warrant. Mandatory Conversion If, during the term of the Warrant, an Awardee undertakes an equity financing in which the Awardee receives investments in excess of $3 million or more and the Awardee’s pre-money valuation for such equity financing is $10 million dollars or more (a “Qualified Round”), the Awardee may compel exercise of the Warrant. In the event of a Qualified Round, the Warrant will convert into the most senior class of equity security issued or to be issued in connection with the financing. For clarity, a Qualified Round only includes equity financings. Debt financing, convertible debt financing or any other form of financing where no valuation of the Awardee is ascribed as part of the investment shall not be considered a Qualified Round. Relocation Requirement. As a condition of any distribution of an Award, Awardee shall materially locate its operations in New York State by locating its Key Officers and a majority of its staff within thirty (30) miles of the New York State Power Authority’s (“NYPA”) Robert M. Moses Power Project, as specified in the Terms and Conditions, or as otherwise explicitly agreed to in writing with 43North. “Key Officers” shall mean those individuals determined by 43North in its sole and absolute discretion, and generally include CEO/CTO, COO, CFO and/or Awardee’s founders. Awardee shall headquarter its business at the 43North incubator location and operate in accordance with the Target Milestones (as hereinafter defined) at such location for a period of twelve (12) consecutive months. Operation in the 43North incubator shall be evidenced by regular and routine use of incubator space dedicated to Awardee. Absence by all of the Awardee’s “Key Officers” from the 43North incubator for any period of time longer than two consecutive calendar weeks shall be considered breach of the relocation requirement unless explicitly agreed to in writing by 43North. A significant consideration in the judging will be whether an applicant is willing to commit to hiring 50% or more of its new hires in Buffalo and how long such commitment would be in effect. Eligibility and Applications To be eligible, applications must be submitted via 43North’s website at 43North.org/apply, following all protocols described on the website. All applications must be submitted in English. Review of Applications Review of applications will occur in three rounds before being invited to participate in Finals during 43North Week. 43North Week will be in October 2024 with the exact dates TBD. First Round. Applicants must fill out, complete and submit a written application, including uploaded business documentation, via the 43North website. In the first round, 43North working in collaboration with its panels of judges (the “Committee”) will select promising applications from the pool of applicants by in July 2024 with an exact date TBD. Such selections shall be made in the sole and absolute discretion of 43North working with the Committee. 43North shall be entitled to begin conducting background checks during the first round on applicants who are identified as semifinalists and may request the consent of applicants for these checks. Semifinal Round. The semifinal round will follow the first round of judging. In the semifinal round 43North, working with the Committee, will invite such applicants as it selects to engage in further conversation regarding their application, possibly including video conference pitches and interviews and provide such further information as the Committee requests. 43North shall be entitled to conduct background checks on applicants who reach this round of review and may request the consent of applicants for these checks. Competition semifinalists will be selected by 43North, in collaboration with the Committee, in its sole and absolute discretion. Due Diligence. All applicants selected for the semifinals will be subject to the due diligence of 43North. In order to progress through due diligence, applicants must commit: (a) to provide all necessary agreements and consents necessary for 43North to complete its due diligence review, (b) to personally attend the Finals ceremonies in Buffalo, New York and (c) execute a binding agreement with 43North in which, among other things, they commit to the terms and conditions of receiving an equity investment award, regardless of the amount of the award. Finals. Finalists will send two members of their leadership to attend 43North Week in Buffalo, New York. Selection of the finalists will be determined and made public the week 43North Finals Week in October 2024.
- 43North FInals Week will be held in October 2024 with the exact dates TBD.
- Up to 10 finalists will pitch before a panel of judges with an eye toward becoming one of the five teams to reach the Award Stage and receive an award investment.
- Applications can only be submitted once. An individual who submits an application on behalf of a business entity represents and warrants he or she has requisite authority to act on behalf of such entity.
- For purposes hereof, “applicants” includes individuals and business entities. There is no limit to the number of people on an applicant’s team.
- All applications must be the original work of the applicant making the submission.
- Existing businesses may propose a new business that would have operations within the WNYEDF Region.
- Partially completed applications will not be accepted. Applications for the Competition are due in June 2024 with the Final date TBD.
- Applicants risk disqualification if they or someone on their behalf communicates with principals of 43North or the Committee beyond submitting applications and providing further data or information as requested, in an attempt to influence the Competition.
- The decisions of the Committee and 43North are final, including interpretation of these Terms and Conditions.
- 43North, its members, officers, directors, agents and employees shall be held harmless by the applicant in the event of any legal action resulting from the participation by the applicant in the Competition.
- 43North takes no responsibility for agreements between applicants and third parties.
- Entry materials become the property of 43North.
- Applicants who engage in immoral, illegal or other activity that may adversely affect the image of 43North, its affiliates, or other applicants, are ineligible for the Competition.
- All applicants and award recipients must comply with these Terms and Conditions. Any violation of these Terms and Conditions will disqualify an applicant from the Competition, and result in forfeiture of any awards the applicant received in connection with the Competition.
- Applicants may not withdraw their applications after they are submitted.
- Award recipients will be required to do the following:
Provide regular monthly business reports to 43North Coordinate and attend monthly meetings with 43North staff and mentors; Provide regular monthly reports on their financial status and operations during 2025; Provide quarterly reports to 43North for a five-year period following their arrival to Western New York; Attendance by founders at: the finals and launch events for the 2025 competition, two business mentorship events every month, and two social mentorship events every month; Comply with the Relocation Requirement.
- Awardees will be invited to relocate to WNYEDF Region and allowed to work in the 43North incubator/accelerator as early possible, however early relocation in November or December of 2024 does not impact the relocation requirement for the entirety of 2025.
- Applicants shall not publicly disparage 43North, its officers or directors, members of the Committee or public officials or agencies of the State of New York who play a role in the operation of 43North.
- There is no limit to the number of applications for which an individual person may be a part, except that no individual person can be part of more than one applicant team that receives an Award.
- Applicants who have received investment from professional venture capital investors are advised to review the terms and conditions of the Warrant with their preferred shareholders prior to submitting an application.
Applicant Representations and Covenants By submitting an application, applicants represent and warrant that:
- The information in the application is and will be true and accurate.
- Where an applicant’s business exists in any form other than a limited liability corporation (“LLC”) or C-corporation (“C-Corp”), the applicant will take the necessary steps to convert their business to a C-Corp or LLC by January 1, 2025 should their application win an investment award.
- The ideas contained in the application will not infringe upon the rights, including privacy and intellectual property rights, of any third party.
- The applicant has a reasonable basis for holding the intellectual property that forms the basis or is integral to the applicant’s business or the proposed business submitted in the Competition.
- The applicant has and will have the right and authority to submit the content in its application to 43North.
- The applicant will obtain permission or a license, as appropriate, for any third party materials, information or other intellectual property contained in its application.
- The applicant will comply with all applicable laws and regulations in connection with its activities relating to the Competition.
- The applicant will not attempt to hold 43North responsible or liable for any third party violation of its intellectual property rights as a result of participation in the Competition.
- The applicant must disclose if any member, officer, director, employee or shareholder of the applicant has a business or close family (parent, sibling, spouse, partner or significant other) relationship with any officer, member, director or senior management person of 43 North LLC, 43North BPC Inc., 43North Foundation Inc., Empire State Development Corporation or the New York Power Authority. 43North reserves the right, in its sole discretion, to disqualify an applicant in the event of a conflict of interest.
- No applicant shall seek the assistance of any member, officer, director, employee or shareholder of 43North.
- The applicant consents to 43North performing a background check with respect to the applicant and its principals.
- The applicant has no reason to believe it will be prohibited or otherwise unable to comply with the requirements of an Awardee, including relocation to the WNYEDF Region and issuance of the 5% Warrant.
- Neither the applicant, nor any of its directors, officers, members or shareholders is subject to any of the “Bad Actor” disqualification events described in Rule 506 promulgated under the Securities Act of 1933, as amended.
- 43North, its members, officers, directors, employees, and agents shall be held harmless by the applicant in the event of any legal action resulting from the participation by the applicant in the Competition.
Other Factors 43North does not discriminate against any applicant on the basis of race, color, creed, ethnicity, gender, disability, age, sexual orientation, gender expression, military status or marital status. 43North reserves the right to modify these Terms and Conditions in its sole discretion. In the event of a modification, all applicants will be notified. 43North will give weight in the judging to applicants who commit to hiring in Buffalo or Western New York. Non-U.S. Applicants Domestic and Non-United States applicants are encouraged to apply. Non-United States applicants are responsible for obtaining any necessary visas and related immigration papers to attend final events of the Competition in Buffalo, New York and to satisfy the appearance requirements and the Relocation Requirements should they receive an Award. 43North may provide assistance with respect to United States visa requirements but cannot render legal advice to applicants and award recipients. Waiver and Severability 43North may waive any term or condition herein at its sole discretion. Such waiver will not be deemed a waiver of any other term or condition, whether similar or different. If any term or condition herein is invalid or unenforceable, that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its invalidity or unenforceability, and the other provisions will remain in full force and effect. Governing Law These terms and conditions shall be governed and construed in accordance with the laws of the United States of America and the State of New York, without regard to conflicts of law provisions. Exclusive venue for any litigation arising from the Competition or these Terms and Conditions shall be the State or Federal courts located in Erie County, New York. EXHIBIT B Target Milestones Provide a detailed timetable outlining quarterly milestones for 2024, more expansive than the layout below. The payment schedule will be addressed after award amounts are determined and in conjunction with details outlined in this plan. Billboard Target Milestone for 2024: Q1 Milestones: Q1 Disbursement: 10 Actions of January: 10 Actions of February: 10 Actions of March: Q2 Milestones: Q2 Disbursement: 10 Actions of April: 10 Actions of May: 10 Actions of June: Q3 Milestones: Q3 Disbursement: 10 Actions of July: 10 Actions of August: 10 Actions of September: Q4 Milestones Q4 Disbursement: 10 Actions of October: 10 Actions of November: 10 Actions of December: 10% of Award Withheld for Disbursement December 2024: