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)
December 4, 2024
zSpace Inc.
(Exact name of registrant as specified in charter)
| Delaware |
|
001-42431 |
|
35-2284050 |
(State or other Jurisdiction of
Incorporation or Organization) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
|
55 Nicholson Lane
San Jose, California |
|
95134 |
| (Address of Principal Executive Offices) |
|
(zip code) |
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of registrant under any of the following provisions:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12(b) under the Exchange Act (17 CFR 240.14a-12(b)) |
| ¨ |
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(s) |
|
Name of each exchange on which registered |
| Common Stock, par value $0.00001 per share |
|
ZSPC |
|
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 (17 CFR §230.405) or Rule 12b-2 of the
Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging
growth company x
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.
On December 6, 2024 (the
“Closing Date”), zSpace, Inc., a Delaware corporation (the “Company”), completed its initial public offering
(the “Offering”) of its common stock, par value $0.00001 per share (the “Common Stock”) and sold an aggregate
of 1,875,000 shares of Common Stock at an initial public offering price of $5.00 per share pursuant to that certain Underwriting Agreement,
dated as of December 4, 2024 (the “Underwriting Agreement”), between the Company and Roth Capital Partners LLC, as representative
(the “Representative”) of the several underwriters named in the Underwriting Agreement. In addition, pursuant to the Underwriting
Agreement, the Company granted the Representative a 30-day option to purchase up to 281,250 additional shares of Common Stock to cover
over-allotments in connection with the Offering, which the Representative exercised the option in full on the Closing Date.
The
Common Stock was offered and sold to the public pursuant to the Company’s registration statement on Form S-1 (File No. 333-280427),
originally filed by the Company with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933,
as amended (the “Securities Act”), on June 24, 2024, as amended, which became effective on December 4, 2024 (the
“Registration Statement”). The Company received gross proceeds of approximately $10.8 million from the Offering (including
from exercise of the over-allotment), before deducting underwriting discounts and commissions of seven percent (7%) of the gross proceeds
and Offering expenses. The Company currently intends to use the net proceeds from the initial public offering of approximately $8.3 million
for growth initiatives, including funding product commitments, software development through acquisitions of applications and third-party
software developers, sales and marketing, and for working capital and general corporate purposes.
In the Registration Statement,
the Company also registered for resale by two securityholders up to 1,997,973 shares of its Common Stock. The shares registered for resale
were not purchased by the underwriters in the Offering and the Company will not receive any of the proceeds from the resale of such shares
when and if such shares are sold by the securityholders
In connection with the Offering,
the Common Stock began trading on The Nasdaq Global Market on December 5, 2024 under the symbol “ZSPC.”
The
Underwriting Agreement contains customary representations, warranties, and covenants by the Company. It also provides for customary indemnification
by each of the Company and the underwriters for losses or damages arising out of or in connection with the Offering, including for liabilities
under the Securities Act, other obligations of the parties and termination provisions. Pursuant to
the Underwriting Agreement, the Company’s controlling stockholders, executive officers and directors entered into lock-up agreements
in substantially the form included as an exhibit to the Underwriting Agreement. The lock-up agreements with three of the Company’s
controlling stockholders, Gulf Islamic Investments, LLC, dSpace Investments Limited and bSpace Investments Limited, provide for a 365-day
“lock-up” period with respect to sales of Common Stock, subject to certain exceptions. The lock-up agreements with the Company’s
directors and two holders of SAFE agreements which converted upon closing of the Offering provide for an 180-day “lock-up”
period with respect to sales of Common Stock, subject to certain exceptions. The lock-up agreements with the Company’s executive
officers and one of its controlling stockholders, Fiza Investments Limited, provide for an 180-day “lock-up” period with respect
to sales of 50% of the Common Stock owned by such holder and a 365-day “lock-up” period with respect to sales of the remainder
of the Common Stock owned by such holder, each subject to certain exceptions. The Company also agreed, subject to certain exceptions,
that the Company would not issue or enter into any agreement to issue Common Stock for a period of 180 days without the prior consent
of the Representative. The provisions of the Underwriting Agreement, including the representations and warranties contained therein,
are not for the benefit of any party other than the parties to such agreement and are not intended as a document for investors or the
public to obtain factual information about the current state of affairs of the Company.
Pursuant
to the Underwriting Agreement, the Company also agreed to issue to the Representative warrants (the “Representative’s Warrants”)
to purchase up to a total of 5% of the shares of Common Stock sold in the Offering, or 107,813 shares of Common Stock following
the exercise of the over-allotment option by the Representative. The Representative’s Warrants are exercisable at $7.50 per share
of Common Stock and have a term of five years from the effective date of the Company’s Registration Statement. The Representative’s
Warrants are not exercisable until 180 days following the commencement of sales in the Offering.
The final prospectus relating
to the Offering has been filed with the SEC and is available on the SEC’s web site at http://www.sec.gov. Copies of the final prospectus
relating to the offering may be obtained from the above-mentioned SEC website or from Roth Capital Partners, LLC, at 888 San Clemente
Drive, Suite 400, Newport Beach, CA 92660 Attn: Prospectus Department, by telephone: (800) 678-9147, or email at rothecm@roth.com.
The
foregoing summary of the terms of the Underwriting Agreement and the Representative’s Warrant do not purport to be complete and
are subject to, and qualified in their entirety by reference to, the full text of the Underwriting Agreement and the form of Representative’s
Warrant, copies of which are filed as Exhibit 1.1 and 4.1 to this report and are incorporated by reference herein.
Item 5.02 Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On the Closing Date, in connection
with the closing of the Offering, each of Dr. Joanna Morris, Abhay Pande, Angela Galardi Prince, and Jane Swift joined the Board
of Directors of the Company. Each will serve on the Board of Directors until the next annual meeting of stockholders of the Company at
which directors are elected, at which time each is expected to stand for re-election. Biographical information regarding each is set forth
below:
Dr. Joanna
Morris, age 58, is Associate Professor of Psychology and Neuroscience at Providence College in Providence, RI. She is a
former Rhodes Scholar who holds an A.B. (summa cum laude) from Dartmouth College, an M.Phil. in Theoretical Linguistics and Comparative
Philology from the University of Oxford, and a Ph.D. in Psychology from the University of Pennsylvania. From 1998 – 2007,
Dr. Morris was an Assistant Professor at Hampshire College, from 2007 – 2018, Dr. Morris was an Associate
Professor at Hampshire College and from 2018 – 2023, Dr. Morris was a Professor at Hampshire College. She has
also served as the Provosts Fellow in Cognitive Science at RISD before joining the faculty at Providence College in 2020.
Abhay
Pande, age 57, is a former Investment Banking Managing Director at Citibank, a position that he held from August 1998
until June 2023, and former private equity Managing Director at American Capital, a position that he held from July 2013 until
June 2016. He has also served as a senior advisor with the Albright Stonebridge Group and is currently Managing Director at Princeton
Capital Advisors, which provides cross-border transactions and capital advisory services for leading healthcare, energy and infrastructure
clients, a position that he has held since 2020. Mr. Pande received an MBA from the University of Chicago Booth School of Business
and a B.A. in quantitative economics from Dartmouth College.
Angela
Galardi Prince, age 42, is a former CEO, startup founder, and Credit Risk expert with a diverse background in consumer
and small business financial services, capital markets, and career and technical education. Since 2023, Ms. Prince has worked as
an independent business advisor and executive consultant with a specialty in management, operational finance, risk assessment and strategic
planning. Ms. Prince was formerly the CEO of Climb Credit, the leading provider of lending and payments services to Career and Vocational
schools in the US from 2017 to 2022. Prior to that, she was the co-founder and COO of Orchard Platform, a data and software business for
credit investment managers from 2012 to 2016. She started her career in risk management at American Express where she worked and led teams
from 2005 to 2010 and then in a similar role at Citibank from 2010 to 2012. Ms. Prince received both her BSE and MSE in engineering
from the University of Michigan.
Jane
Swift, age 59, has over fifteen years of experience in state government, holding the offices of governor, lieutenant governor,
secretary of consumer affairs and business regulation, and state senator in the State of Massachusetts. Since leaving public office, Ms. Swift
has accumulated a wealth of experience in executive leadership and governance roles including as a chief executive officer; a board chair,
member, and committee chair to public, private, and not-for-profit institutions; an adviser to entrepreneurial education companies; and
as a partner in a venture capital fund. Since 2007, she has served as a Director and as Chair of the Compensation Committee on the Suburban
Propane (NYSE: SPH) board of directors, a publicly traded propane distribution company. Ms. Swift is a National Assessment Governing
Board member and more recently, has joined the Advisory Board of the George W. Bush Institute, a non-profit organization that promotes
freedom, democracy and health for women and girls around the world. In 2022, Swift founded Cobble Hill Farm Education and Rescue Center.
Dr. Morris, Mr. Pande,
and Ms. Prince will serve on the Company’s audit committee, with Mr. Pande serving as the chair. Mr. Pande, Ms. Prince,
and Ms. Swift will serve on the Company’s compensation committee, with Ms. Swift serving as chair. Dr. Morris, Ms. Prince,
and Ms. Swift will serve on the Company’s nominating and corporate governance committee, with Ms. Prince serving as chair.
There are no arrangements
or understandings between any of Dr. Joanna Morris, Abhay Pande, Angela Galardi Prince, or Jane Swift and any other person or persons
pursuant to which Dr. Morris, Mr. Pande, Ms. Prince, or Ms. Swift were selected as a director of the Company. There
are no current or proposed transactions in which Dr. Morris, Mr. Pande, Ms. Prince, or Ms. Swift, or any member of
the immediate family of Dr. Morris, Mr. Pande, Ms. Prince, or Ms. Swift, has an interest that is required to be disclosed
under Item 404(a) of Regulation S-K promulgated by the Securities Exchange Commission.
Item 5.03 Amendments to Articles of Incorporation
or Bylaws; Change in Fiscal Year.
On December 6, 2024,
the Company filed a Second Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) with the
Secretary of State of the State of Delaware, and the Company’s Second Amended and Restated Bylaws (the “Bylaws”) became
effective on such date. The forms of the Certificate of Incorporation and Bylaws are substantially the same as the forms filed as exhibits
to the Registration Statement.
Please see the descriptions
of the Certificate of Incorporation and the Bylaws in the section titled “Description of Capital Stock” in the Company’s
Registration Statement, which descriptions are incorporated herein by reference.
The
foregoing descriptions of the Certificate of Incorporation and the Bylaws do not purport to be complete and are subject to, and qualified
in their entirety by reference to, the full text of the Certificate of Incorporation and Bylaws, copies of which are filed as Exhibits
3.1 and 3.2 to this report and are incorporated by reference herein.
Item 8.01. Other Events.
In connection with the pricing
of the Offering, the Company issued a press release on December 4, 2024, which has been filed as Exhibit 99.1 to this Current
Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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.
| Date: December 9, 2024 |
zSpace, Inc. |
| |
|
| |
By:
|
/s/
Paul Kellenberger |
| |
|
Paul Kellenberger |
| |
|
Chief Executive Officer
|
Exhibit 1.1
ZSPACE, INC.
Underwriting
Agreement
1,875,000 Shares of Common Stock
December 4, 2024
Roth Capital Partners, LLC
As the Representative of the
Several Underwriters Named on Schedule I hereto
| c/o |
Roth Capital Partners, LLC |
888 San Clemente Drive, Suite 400
Newport Beach, CA 92660
Ladies and Gentlemen:
zSpace, Inc., a Delaware
corporation (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the
underwriters named in Schedule I hereto (the “Underwriters,” or each, an “Underwriter”),
for whom Roth Capital Partners, LLC is acting as the representative (the “Representative”), an aggregate of 1,875,000
authorized but unissued shares (the “Firm Shares”) of common stock, par value $0.00001 per share (the “Common
Stock”) of the Company. The Company also proposes to sell to the Underwriters, upon the terms and conditions set forth in Section 4
hereof, up to an additional 281,250 shares of Common Stock (the “Option Shares”). The Firm Shares and the Option Shares
are hereinafter collectively referred to as the “Shares”. The Shares, the Representative’s Warrants (as defined
below) and the Representative’s Warrant Shares (as defined below) are collectively referred to as the “Securities.”
The Company and the several
Underwriters hereby confirm their agreement (this “Agreement”) as follows:
| 1. | Registration Statement and Prospectus. |
The Company has prepared and
filed with the Securities and Exchange Commission (the “Commission”) a registration statement covering the Securities
and up to 1,997,973 shares of Common Stock registered for resale by certain securityholders of the Company on Form S-1 (File No. 333-
280427) under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations (the
“Rules and Regulations”) of the Commission thereunder, and such amendments to such registration statement (including
post effective amendments) as may have been required to the date of this Agreement. Such registration statement, as amended (including
any post effective amendments), has been declared effective by the Commission. Such registration statement, including amendments thereto
(including post effective amendments thereto) at the time of effectiveness thereof (the “Effective Time”), the exhibits
and any schedules thereto at the Effective Time or thereafter during the period of effectiveness and the documents and information otherwise
deemed to be a part thereof or included therein by the Securities Act or otherwise pursuant to the Rules and Regulations at the Effective
Time or thereafter during the period of effectiveness, is herein called the “Registration Statement.” If the Company
has filed or files an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term Registration Statement shall include such Rule 462 Registration
Statement. Any preliminary prospectus included in the Registration Statement or filed with the Commission pursuant to Rule 424(a) under
the Securities Act is hereinafter called a “Preliminary Prospectus.” The Preliminary Prospectus relating to the Securities
that was included in the Registration Statement immediately prior to the pricing of the offering contemplated hereby is hereinafter called
the “Pricing Prospectus.”
The Company is filing with
the Commission pursuant to Rule 424 under the Securities Act a final prospectus covering the Securities, which includes the information
permitted to be omitted therefrom at the Effective Time by Rule 430A under the Securities Act. Such final prospectus, as so filed,
is hereinafter called the “Final Prospectus.” The Final Prospectus, the Pricing Prospectus and any preliminary prospectus
in the form in which they were included in the Registration Statement or filed with the Commission pursuant to Rule 424 under the
Securities Act is hereinafter called a “Prospectus.”
| 2. | Representations and Warranties of the Company Regarding the Offering. |
(a) The
Company represents and warrants to, and agrees with, the several Underwriters, as of the date hereof and as of the Closing Date (as defined
in Section 4(b) below) and as of each Option Closing Date (as defined in Section 4(c) below), as follows:
(i) Effectiveness.
The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration
Statement or suspending or preventing the use of any Preliminary Prospectus, the Prospectus or any “free writing prospectus”,
as defined in Rule 405 under the Rules and Regulations, has been issued by the Commission and no proceedings for that purpose
have been instituted or are, to the knowledge of the Company, threatened under the Securities Act. Any required filing of any Preliminary
Prospectus and/or the Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has been
or will be made in the manner and within the time period required by such Rule 424(b) of the Rules and Regulations. Any
material required to be filed by the Company pursuant to Rule 433(d) or Rule 163(b)(2) of the Rules and Regulations
has been or will be made in the manner and within the time period required by such Rules and Regulations. The Commission has not
notified the Company of any objection to the use of or the form of the Registration Statement or any post-effective amendment thereto.
(ii) No
Material Misstatements or Omissions. At the Effective Time, at the date hereof, at the Closing Date, and at each Option Closing Date,
if any, the Registration Statement and any post-effective amendment thereto complied or will comply in all material respects with the
requirements of the Securities Act and the Rules and Regulations and did not, does not, and will not, as the case may be, contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, not misleading. The Time of Sale Disclosure Package (as defined below) as of [●] p.m. (Eastern time) (the “Applicable
Time”) on the date hereof and at the Closing Date and on each Option Closing Date, if any, and the Final Prospectus, as amended
or supplemented, as of its date, at the time of filing pursuant to Rule 424(b) under the Securities Act and at the Closing
Date and at each Option Closing Date, if any, and any individual Written Testing-the-Waters Communication, when considered together with
the Time of Sale Disclosure Package, did not, does not and will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The representations and warranties set forth in the two immediately preceding sentences shall not apply
to statements in or omissions from the Registration Statement, the Time of Sale Disclosure Package or any Prospectus in reliance upon,
and in conformity with, written information furnished to the Company by any Underwriter specifically for use in the preparation thereof,
which written information is described in Section 7(f). The Registration Statement contains all exhibits and schedules required
to be filed by the Securities Act or the Rules and Regulations. No order preventing or suspending the effectiveness or use of the
Registration Statement or any Prospectus is in effect and no proceedings for such purpose have been instituted or are pending, or, to
the knowledge of the Company, are contemplated or threatened by the Commission. As used in this paragraph and elsewhere in this Agreement:
“Time of Sale Disclosure Package” means the Pricing Prospectus, each Issuer Free Writing Prospectus, and the description
of the transaction provided by the Underwriters included on Schedule II.
(iii) Marketing
Materials. The Company has not distributed any prospectus or other offering material in connection with the offering and sale of the
Shares other than the Time of Sale Disclosure Package and the electronic roadshow or investor presentations delivered to and approved
by the Representative for use in connection with the marketing of the offering of the Shares (the “Marketing Materials”).
(iv) Smaller
Reporting Company. From the time of the initial filing of the Registration Statement with the Commission through the date hereof,
the Company has been and is a “smaller reporting company,” as defined in Rule 12b-2 under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”).
(v) Emerging
Growth Company. The Company is an “emerging growth company,” as defined in Section 2(a) of the Securities Act
(an “Emerging Growth Company”).
(vi) Testing-the-Waters
Communications. The Company (i) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications
with the prior consent of Roth Capital with entities that are qualified institutional buyers within the meaning of Rule 144A under
the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act and (ii) has
not authorized anyone other than the Underwriters to engage in Testing-the-Waters Communications. The Company has not distributed any
Testing-the-Waters Communications that is a written communication within the meaning of Rule 405 under the Securities Act (“Written
Testing-the-Waters Communications”), other than those previously provided to the Representative and listed on Schedule III
hereto. As used in this paragraph and elsewhere in this Agreement: “Testing-the-Waters Communication” means any oral
or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act. The Company
has filed publicly on the Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”) at least 15 calendar
days prior to any “road show” (as defined in Rule 433 under the Securities Act), any confidentially submitted registration
statement and registration statement amendments relating to the offer and sale of Securities. Each Written Testing-the-Waters Communication
complied in all material respects with the Securities Act and did not, as of the Applicable Time, and at all times through the completion
of the public offer and sale of Shares will not, include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and when taken together with the
Time of Sale Disclosure Package as of the Applicable Time, did not contain any untrue statement of material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(vii) Issuer
Free Writing Prospectus. (A) The Company has provided a copy to the Underwriters of each Issuer Free Writing Prospectus (as defined
below) used in the sale of Securities. The Company has filed all Issuer Free Writing Prospectuses required to be so filed with the Commission,
and no order preventing or suspending the effectiveness or use of any Issuer Free Writing Prospectus is in effect and no proceedings for
such purpose have been instituted or are pending, or, to the knowledge of the Company, are contemplated or threatened by the Commission.
Each Issuer Free Writing Prospectus complied in all material respects with the Securities Act and did not, as of the Applicable Time,
and at all times through the completion of the public offer and sale of Shares will not, include any information that conflicted, conflicts
or will conflict with the information contained in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus
and when taken together with the Time of Sale Disclosure Package as of the Applicable Time, did not contain any untrue statement of material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. As used in this paragraph and elsewhere in this Agreement: “Issuer Free Writing Prospectus”
means any “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act, relating to the Securities
that (x) is required to be filed with the Commission by the Company, or (y) is exempt from filing pursuant to Rule 433(d)(5)(i) or
(d)(8) under the Securities Act, in each case in the form filed or required to be filed with the Commission or, if not required to
be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act.
(B) At
the time of filing of the Registration Statement and at the date hereof, the Company was not and is not an “ineligible issuer”
as defined in Rule 405 under the Securities Act or an “excluded issuer” as defined in Rule 164 under the Securities
Act.
(C) Each
Issuer Free Writing Prospectus listed on Schedule IV satisfied, as of its issue date and at all subsequent times through
the Prospectus Delivery Period, all other conditions as may be applicable to its use as set forth in Rules 164 and 433 under the
Securities Act, including any legend, record-keeping or other requirements.
(viii) Financial
Statements. The financial statements of the Company, together with the related notes and schedules, included in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus comply in all material respects with the applicable requirements of the Securities
Act and the Exchange Act, and the rules and regulations of the Commission thereunder, and fairly present the financial condition
of the Company as of the dates indicated and the results of operations and changes in cash flows for the periods therein specified in
conformity with U.S. generally accepted accounting principles (“GAAP”) consistently applied throughout the periods
involved. No other financial statements or schedules are required under the Securities Act, the Exchange Act, or the Rules and Regulations
to be included in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus.
(ix) Independent
Accountants. To the Company’s knowledge, BDO USA, P.C., which has expressed its opinion with respect to the financial statements
and schedules included in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, is an independent
registered public accounting firm with respect to the Company within the meaning of the Securities Act and the Rules and Regulations.
(x) Accounting
and Disclosure Controls. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus,
the Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined under Rules 13a-15
and 15d-15 under the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision
of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the
interactive data in eXtensible Business Reporting Language included in the Registration Statement, the Time of Sale Disclosure Package
and the Final Prospectus fairly present the information called for in all material respects and are prepared in accordance with the Commission’s
rules and guidelines applicable thereto. Since the date of the audited financial statements included in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus, there has been no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting. It is understood that this section shall not require the Company to comply with Section 404(b) of the Sarbanes-Oxley
Act of 2002, as amended (together with the rules and regulations promulgated thereunder, the “Sarbanes-Oxley Act”),
as of an earlier date than it would otherwise be required to so comply under applicable law.
Based on the evaluation of
its disclosure controls and procedures as of the most recent evaluation date, except as specifically disclosed in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus, the Company is not aware of (i) any material weakness or significant
deficiency in the design or operation of internal controls which could adversely affect the Company’s or any subsidiary’s
ability to record, process, summarize and report financial data or any material weaknesses in internal controls; or (ii) any fraud,
whether or not material, that involves management or other employees who have a role in the Company’s or its subsidiaries’
internal controls.
Except as disclosed in the
Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, the Company maintains disclosure controls and procedures
that (i) have been designed to ensure that material information relating to the Company and any subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others within those entities; (ii) provide for the
periodic evaluation of the effectiveness of such disclosure controls and procedures at the end of the periods in which the periodic reports
are required to be prepared; and (iii) are effective in all material respects to perform the functions for which they were established.
(xi) Forward-Looking
Statements. The Company had a reasonable basis for, and made in good faith, each “forward-looking statement” (within the
meaning of Section 27A of the Securities Act or Section 21E of the Exchange Act) contained in the Registration Statement, the
Time of Sale Disclosure Package, the Final Prospectus or the Marketing Materials.
(xii) Statistical
and Marketing-Related Data. All statistical or market-related data included in the Registration Statement, the Time of Sale Disclosure
Package or the Final Prospectus, or included in the Marketing Materials, are based on or derived from sources that the Company reasonably
believes to be reliable and accurate, and the Company has obtained written consent to the use of such data from such sources, to the extent
required.
(xiii) Form 8-A
Registration Statement. The Company has filed a registration statement on Form 8-A (File No. 001-42431) in respect of the
registration of the Shares under the Exchange Act with the Commission; such registration statement in the form heretofore delivered to
the Underwriters has become effective in such form; no stop order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission.
(xiv) Trading
Market. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is approved for listing on The
Nasdaq Global Market ( “Nasdaq”). There is no action pending by the Company or, to the Company’s knowledge, Nasdaq
to delist the Common Stock from Nasdaq, nor has the Company received any notification that Nasdaq is contemplating terminating such listing.
When issued, the Shares and the Representative’s Warrant Shares will be listed on Nasdaq. The Company has taken all actions it deems
reasonably necessary or advisable to take on or prior to the date of this Agreement to assure that it will be in compliance in all material
respects with all applicable corporate governance requirements set forth in the rules of Nasdaq that are then in effect and will
take all actions it deems reasonably necessary or advisable to ensure that it will be in compliance in all material respects with other
applicable corporate governance requirements set forth in Nasdaq rules not currently in effect upon and all times after the date
on which such requirements apply to the Company.
(xv) Absence
of Manipulation. The Company has not taken, directly or indirectly, any action that is designed to or that has constituted or that
would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
(xvi) Investment
Company Act. The Company is not, and after giving effect to the offering and sale of the Securities and the application of the net
proceeds thereof will not be, an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.
| 3. | Representations and Warranties Regarding the Company. |
(a) The
Company represents and warrants to and agrees with each Underwriter as of the date hereof and as of the Closing Date and as of each Option
Closing Date, as follows:
(i) Good
Standing. Each of the Company and its subsidiaries has been duly organized and is validly existing as a corporation or other entity
in good standing under the laws of its jurisdiction of incorporation. Each of the Company and its subsidiaries has the power and authority
(corporate or otherwise) to own its properties and conduct its business as currently being carried on and as described in the Registration
Statement, the Time of Sale Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation
or other entity in good standing in each jurisdiction in which it owns or leases real property or in which the conduct of its business
makes such qualification necessary, except where the failure to so qualify would not have or be reasonably likely to result in a
material adverse effect upon the business, prospects, properties, operations, condition (financial or otherwise) or results of operations
of the Company and its subsidiaries, taken as a whole, or in its ability to perform its obligations under this Agreement (“Material
Adverse Effect”).
(ii) Authorization.
The Company has the power and authority to enter into this Agreement and the Representative’s Warrants and to authorize, issue and
sell the Securities as contemplated by this Agreement and the Representative’s Warrants. This Agreement and the Representative’s
Warrants have been duly authorized by the Company, and when executed and delivered by the Company, as applicable, will constitute the
valid, legal and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except
as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of
equity.
(iii) Contracts.
The execution, delivery and performance of this Agreement and the Representative’s Warrants, by the Company and the consummation
of the transactions herein contemplated will not (A) result in a breach or violation of any of the terms and provisions of, or constitute
a default under, any law, order, rule or regulation to which the Company or any subsidiary is subject, or by which any property or
asset of the Company or any subsidiary is bound or affected, (B) conflict with, result in any violation or breach of, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time or both) (a “Default Acceleration Event”)
of, any agreement, lease, credit facility, debt, note, bond, mortgage, indenture or other instrument (the “Contracts”)
or obligation or other understanding to which the Company or any subsidiary is a party or by which any property or asset of the Company
or any subsidiary is bound or affected, except to the extent that such conflict, default, or Default Acceleration Event has been effectively
waived in full prior to the date hereof or is not reasonably likely to result in a Material Adverse Effect, or (C) result in a breach
or violation of any of the terms and provisions of, or constitute a default under, the Company’s amended and restated certificate
of incorporation and amended and restated bylaws.
(iv) No
Violations of Governing Documents. Neither the Company nor any of its subsidiaries is in violation, breach or default under its amended
and restated certificate of incorporation and amended and restated bylaws or other equivalent organizational or governing documents (including
any certificate of designation).
(v) Consents.
No consents, approvals, orders, authorizations or filings are required on the part of the Company in connection with the execution, delivery
or performance of this Agreement and the Representative’s Warrants and the issue and sale of the Securities, except (A) the
registration under the Securities Act of the Securities, which has been effected, (B) the necessary filings, notices and approvals
from Nasdaq to list the Shares and the Representative’s Warrant Shares, (C) such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign securities or Blue Sky laws and the rules of the Financial Industry Regulatory
Authority, Inc. (“FINRA”) in connection with the purchase and distribution of the Securities by the several Underwriters,
(D) such consents and approvals as have been obtained and are in full force and effect, and (E) such consents, approvals, orders,
authorizations and filings the failure of which to make or obtain is not reasonably likely to result in a Material Adverse Effect.
(vi) Capitalization.
The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final
Prospectus. All of the issued and outstanding shares of capital stock of the Company are duly authorized and validly issued, fully paid
and nonassessable, and have been issued in compliance with all applicable securities laws, and conform in all material respects to the
description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. All of the issued shares
of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable
and, except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims. Except as disclosed in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus and except for the issuances of options or restricted stock in the ordinary
course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure
Package or the Final Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants,
agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company.
The Shares, when issued and paid for as provided herein, will be duly authorized and validly issued, fully paid for and nonassessable,
will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights and will
conform to the description of the capital stock of the Company contained in the Registration Statement, the Time of Sale Disclosure Package
and the Final Prospectus. All corporate action taken for the authorization, issuance and sale of the Representative’s Warrants and
the Representative’s Warrant Shares has been duly and validly taken. The shares of Common Stock issuable upon the exercise of the
Representative’s Warrants (the “Representative’s Warrant Shares”), which, when issued, paid and delivered
upon due exercise of the Representative’s Warrants, will be duly authorized and validly issued, fully paid and nonassessable, will
be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights. The Representative’s
Warrants Shares have been reserved for issuance. The Representative’s Warrants, when issued, will conform in all material respects
to the description thereof set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus.
(vii) Taxes.
Each of the Company and its subsidiaries has (a) filed all foreign, federal, state and local tax returns (as hereinafter defined)
required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof and
(b) paid all taxes (as hereinafter defined) shown as due and payable on such returns that were filed and has paid all taxes imposed
on or assessed against the Company or such respective subsidiary. The provisions for taxes payable, if any, shown on the financial statements
included in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus are sufficient for all accrued and
unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements. No tax
audits or investigations are pending and, to the knowledge of the Company, no issues have been raised (and are currently pending) by any
taxing authority in connection with any of the returns or taxes asserted as due from the Company or its subsidiaries, and no waivers of
statutes of limitation with respect to the returns or collection of taxes have been given by or requested from the Company or its subsidiaries.
The term “taxes” means all federal, state, local, foreign, and other net income, gross income, gross receipts, sales, use,
ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind whatever, together
with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “returns” means
all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(viii) Material
Change. Since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package
or the Final Prospectus, (a) neither the Company nor any of its subsidiaries has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has
not declared or paid any dividends or made any distribution of any kind with respect to its capital stock; (c) there has not been
any change in the capital stock of the Company or any of its subsidiaries (other than a change in the number of outstanding shares of
Common Stock due to the issuance of shares upon the exercise of outstanding options, warrants or restricted stock, upon the conversion
of outstanding shares of preferred stock or other convertible securities or the issuance of restricted stock awards or restricted stock
units under the Company’s existing stock awards plan, or any new grants of equity awards under the Company’s existing stock
awards plan in the ordinary course of business), (d) there has not been any material change in the Company’s long-term or short-term
debt, (e) no material oral or written agreement or other transaction has been entered into by the Company or its subsidiaries that
is not in the ordinary course of business or that could reasonably be expected to result in a material reduction in the future earnings
of the Company, (f) no loss or damage (whether or not insured) to the property of the Company or any subsidiary has been sustained
that has or could reasonably be expected to be material to the Company and its subsidiaries taken as a whole, (g) no legal or governmental
action, suit or proceeding affecting the Company, any of its subsidiaries taken as a whole or any of their respective properties that
is material to the Company or any of its subsidiaries or that materially and adversely affects or could reasonably be expected to materially
and adversely affect the transactions contemplated by this Agreement has been instituted or threatened, and (h) there has not been
the occurrence of any Material Adverse Effect.
(ix) Absence
of Proceedings. There is not pending or, to the knowledge of the Company, threatened, any action, suit or proceeding to which the
Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject
before or by any court or governmental agency, authority or body, or any arbitrator or mediator, which, if adversely determined, is reasonably
likely to result in a Material Adverse Effect.
(x) Permits.
The Company and each of its subsidiaries holds, and is in compliance with, all franchises, grants, authorizations, licenses, permits,
easements, consents, certificates and orders (“Permits”) of any foreign, federal, state or local governmental or self-regulatory
agency, authority or body required for the conduct of its business as currently conducted as described in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus, and all such Permits are in full force and effect, in each case except where
the failure to hold, or comply with, any of them or the failure of any of them to be in full force and effect, is not reasonably likely
to result in a Material Adverse Effect or adversely affect the consummation of the transactions contemplated by this Agreement.
(xi) Good
Title. The Company and each of its subsidiaries have good and marketable title to all property (whether real or personal) described
in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus as being owned by them that are material to
the business of the Company, in each case free and clear of all liens, claims, security interests, other encumbrances or defects, except
those that are disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus and those that are
not reasonably likely to result in a Material Adverse Effect. The property held under lease by the Company and each of its subsidiaries
is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not
interfere in any material respect with the conduct of the business of the Company and each of its subsidiaries.
(xii) Intellectual
Property. The Company and each of its subsidiaries owns or possesses or has valid right to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, inventions, trade secrets
and similar rights (“Intellectual Property”) necessary for the conduct of the business of the Company or any of its
subsidiaries as currently conducted and as described in the Registration Statement, the Time of Sale Disclosure Package and the Final
Prospectus. To the Company’s knowledge, no action or use by the Company or any of its subsidiaries involves or gives rise to any
infringement of, or license or similar fees for, any Intellectual Property of others. There is no claim, action or proceeding made, brought,
or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries regarding the infringement of Intellectual
Property. The Company is not aware of any facts or circumstances which may reasonably be expected to give rise to a claim, action or proceeding
regarding the foregoing. To the Company’s knowledge, none of the technology employed by the Company or any of its subsidiaries has
been obtained or is being used by the Company or such subsidiary in violation of any contractual obligation binding on the Company or
such subsidiary, or, to the Company’s knowledge, any of the officers, directors or employees of the Company or any subsidiary, or,
to the Company’s knowledge, otherwise in violation of the rights of any persons.
(xiii) Employment
Matters. There is (A) no unfair labor practice complaint pending against the Company, or any of its subsidiaries, nor to the
Company’s knowledge, threatened against it or any of its subsidiaries, before the National Labor Relations Board, any state or local
labor relation board or any foreign labor relations board, and no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of its subsidiaries, or, to the Company’s knowledge, threatened against
it and (B) no labor disturbance by the employees of the Company or any of its subsidiaries exists or, to the Company’s knowledge,
is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of the Company or any of its
subsidiaries, principal suppliers, manufacturers, customers or contractors, that could reasonably be expected, singularly or in the aggregate,
to have a Material Adverse Effect. The Company is not aware that any key employee or significant group of employees of the Company or
any subsidiary plans to terminate employment with the Company or any such subsidiary.
(xiv) ERISA
Compliance. No “prohibited transaction” (as defined in Section 406 of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”), or Section 4975 of
the Internal Revenue Code of 1986, as amended from time to time (the “Code”)) or “accumulated funding deficiency”
(as defined in Section 302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the thirty (30)-day notice requirement under Section 4043 of ERISA has been waived) has occurred or could reasonably
be expected to occur with respect to any employee benefit plan of the Company or any of its subsidiaries which would reasonably be expected
to, singularly or in the aggregate, have a Material Adverse Effect. Each employee benefit plan of the Company or any of its subsidiaries
is in compliance in all material respects with applicable law, including ERISA and the Code (to the extent applicable). The Company and
its subsidiaries have not incurred and could not reasonably be expected to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any pension plan (as defined in ERISA). Each pension plan for which the Company or any of its subsidiaries
would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified, and, to the Company’
knowledge, nothing has occurred whether by action or by failure to act, which could, singularly or in the aggregate, cause the loss of
such qualification.
(xv) Environmental
Matters. Each of the Company and its subsidiaries are in compliance with all foreign, federal, state and local rules, laws and regulations
relating to the use, treatment, storage and disposal of hazardous or toxic substances or waste and protection of health and safety (with
respect to exposure to hazardous or toxic substances) or the environment which are applicable to their businesses, except where the failure
to comply has not had and would not reasonably be expected to have, singularly or in the aggregate, a Material Adverse Effect. There has
been no storage, generation, transportation, handling, treatment, disposal, discharge, emission, or other release of any kind of toxic
or hazardous substances or wastes by, due to, or caused by the Company or any of its subsidiaries (or, to the Company’s knowledge,
any other entity for whose acts or omissions the Company or any of its subsidiaries is or may otherwise be liable) upon any of the property
now or previously owned or leased by the Company or any of its subsidiaries, or upon any other property, in violation of any law, statute,
ordinance, rule, regulation, order, judgment, decree or permit or which would, under any law, statute, ordinance, rule (including
rule of common law), regulation, order, judgment, decree or permit, give rise to any liability, except for any violation or liability
which has not had and would not reasonably be expected to have, singularly or in the aggregate, a Material Adverse Effect; and there has
been no disposal, discharge, emission or other release of any kind onto such property or into the environment surrounding such property
of any toxic or hazardous substances or wastes with respect to which the Company or any of its subsidiaries has knowledge.
(xvi) SOX
Compliance. The Company is in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act and all
rules and regulations promulgated thereunder and will take all action it deems reasonably necessary to assure that it will be in
compliance in all material respects with other applicable provisions of the Sarbanes-Oxley Act not currently in effect at all times after
the date on which such provisions apply to the Company.
(xvii) Money
Laundering Laws. The operations of each of the Company and its subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”);
and no action, suit or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the Company, threatened. “Governmental Entity” shall be
defined as any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency (whether
foreign or domestic) having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or
operations.
(xviii) Foreign
Corrupt Practices Act. Neither the Company nor any of its subsidiaries, nor any director or officer of the Company or any subsidiary,
nor, to the knowledge of the Company, any employee, representative, agent, affiliate of the Company or any of its subsidiaries or any
other person acting on behalf of the Company or any of its subsidiaries, is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of (i) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or
other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such
term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention
of the FCPA and the Company and its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses
in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected
to continue to ensure, continued compliance therewith, (ii) OECD Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions, or (iii) any similar laws in any other jurisdiction.
(xix) Sanctions.
Neither the Company nor any of its subsidiaries nor any director or officer of the Company or any subsidiary, nor, to the knowledge of
the Company, any employee, representative, agent or affiliate of the Company or any of its subsidiaries or any other person acting on
behalf of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department; (ii) any equivalent European Union measure, including sanctions imposed against certain
states, organizations and individuals under the European Union’s Common Foreign & Security Policy; (iii) any economic
sanctions administered by Her Majesty’s Treasury; or (iv) any sanctions administered by the United Nations Security Council;
or any other relevant sanctions authority (collectively, “Sanctions”); and neither the Company nor any of its subsidiaries
will directly or indirectly use the proceeds of the offering of the Securities contemplated hereby, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities
of any person, or in any country or territory, that currently is the subject or target of Sanctions or in any other manner that will result
in a violation by any person (including any person participating in the transaction whether as an underwriter, advisor, investor or otherwise)
of Sanctions.
(xx) Source
of Funds. Neither the Company nor any of its subsidiaries have, to the Company’s knowledge, received any funds that have been
or are related to or derived from unlawful sources or terrorist or sanctioned-parties or activities, with respect to any applicable jurisdiction,
including any funds that may have been identified in connection with the enforcement action of the United Arab Emirates Securities &
Commodities Authority, Reference No. إ ت/خ/1845/2023
dated 26/06/2023.
(xxi) Insurance.
The Company and each of its subsidiaries carries, or is covered by, insurance in such amounts and covering such risks as is commercially
reasonable for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses
in similar industries.
(xxii) Books
and Records. The minute books of the Company and each of its subsidiaries from and after January 1, 2019 have been made available
to the Underwriters and counsel for the Underwriters, and such books (i) contain a complete summary of all meetings and actions of
the board of directors (including each board committee) and stockholders of the Company (or analogous governing bodies and interest holders,
as applicable), and each of its subsidiaries since January 1, 2019 through the date of the latest meeting and action, and (ii) accurately
in all material respects reflect all transactions referred to in such minutes.
(xxiii) No
Undisclosed Contracts. There is no Contract or document required by the Securities Act or by the Rules and Regulations to be
described in the Registration Statement, the Time of Sale Disclosure Package or in the Final Prospectus or to be filed as an exhibit to
the Registration Statement which is not so described or filed therein as required; and all descriptions of any such Contracts or documents
contained in the Registration Statement, the Time of Sale Disclosure Package and in the Final Prospectus are accurate and complete descriptions
of such documents in all material respects. Other than as described in the Registration Statement, the Time of Sale Disclosure Package
and the Final Prospectus, no such Contract has been suspended or terminated for convenience or default by the Company or any subsidiary
party thereto or any of the other parties thereto, and neither the Company nor any of its subsidiaries has received notice, and the Company
has no knowledge, of any such pending or threatened suspension or termination.
(xxiv) No
Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries on
the one hand, and the directors, officers, stockholders (or analogous interest holders), customers or suppliers of the Company or any
of its subsidiaries on the other hand, which is required to be described in the Registration Statement, the Time of Sale Disclosure Package
or the Final Prospectus and which is not so described.
(xxv) Insider
Transactions. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business)
or guarantees of indebtedness by the Company or any of its subsidiaries to or for the benefit of any of the officers or directors of the
Company, any of its subsidiaries or any of their respective family members, except as specifically disclosed in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus. All transactions by the Company with office holders or control persons of
the Company have been duly approved by the board of directors of the Company, or duly appointed committees or officers thereof, if and
to the extent required under applicable law.
(xxvi) No
Registration Rights. No person or entity has the right to require registration of shares of Common Stock or other securities of the
Company or any of its subsidiaries within one hundred and eighty (180) days after the date hereof because of the filing or effectiveness
of the Registration Statement or otherwise, except for persons and entities who have expressly waived such right in writing or who have
been given timely and proper written notice and have failed to exercise such right within the time or times required under the terms and
conditions of such right. Except as described in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus,
there are no persons with registration rights or similar rights to have any securities registered by the Company or any of its subsidiaries
under the Securities Act.
(xxvii) Continued
Business. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, no supplier,
customer, distributor or sales agent of the Company or any subsidiary has notified the Company or any subsidiary that it intends to discontinue
or decrease the rate of business done with the Company or any subsidiary, except where such discontinuation or decrease has not resulted
in, and could not reasonably be expected to result in, a Material Adverse Effect.
(xxviii) No
Finder’s Fee. There are no claims, payments, issuances, arrangements or understandings for services in the nature of a finder’s,
consulting or origination fee with respect to the introduction of the Company to the Underwriters or the sale of the Securities hereunder
or any other arrangements, agreements, understandings, payments or issuances with respect to the Company that may affect the Underwriters’
compensation, as determined by FINRA.
(xxix) No
Fees. The Company has not made any direct or indirect payments (in cash, securities or otherwise) to (i) any person, as a finder’s
fee, investing fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons
who provided capital to the Company, (ii) any FINRA member, or (iii) any person or entity that has any direct or indirect affiliation
or association with any FINRA member within the 12-month period prior to the date on which the Registration Statement was filed with the
Commission (“Filing Date”) or thereafter.
(xxx) Proceeds.
None of the net proceeds of the offering will be paid by the Company to any participating FINRA member or any affiliate or associate of
any participating FINRA member, except as specifically authorized herein.
(xxxi) No
FINRA Affiliations. To the Company’s knowledge, no (i) officer or director of the Company or any of its subsidiaries, (ii) owner
of ten percent (10.0%) or more of any class of the Company’s securities or (iii) owner of any amount of the Company’s
unregistered securities acquired within the one hundred and eighty day (180-day) period prior to the Filing Date, has any direct or indirect
affiliation or association with any FINRA member. The Company will advise the Representative and counsel to the Underwriters if it becomes
aware that any officer, director of the Company or any of its subsidiaries or any owner of ten percent (10.0%) or more of any class of
the Company’s securities is or becomes an affiliate or associated person of a FINRA member participating in the offering.
(xxxii) No
Financial Advisor. Other than the Underwriters, no person has the right to act as an underwriter or as a financial advisor to the
Company in connection with the transactions contemplated hereby.
(xxxiii) Certain
Statements. The statements included in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus insofar
as they purport to describe the provisions of laws and the documents referred to therein, are accurate and complete in all material respects
and fair, and the statements under the caption “Description of Capital Stock” insofar as they purport to constitute a summary
of (i) the terms of the Company’s outstanding securities, (ii) the terms of the Shares, and (iii) the terms of the
documents referred to therein, are accurate, complete and fair in all material respects.
(xxxiv) Prior
Sales of Securities. Except as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus,
the Company has not sold or issued any shares of Common Stock during the six-month period preceding the date hereof, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the Securities Act, other than shares issued pursuant to employee benefit
plans, stock option plans or other employee compensation plans or pursuant to outstanding preferred stock, options, rights or warrants
or other outstanding convertible securities.
(xxxv) IT
Systems and Data Security. The Company and its subsidiaries’ information technology assets and equipment, computers, systems,
networks, hardware, software, websites, applications and databases (collectively, “IT Systems”) are adequate for, and
operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries
as currently conducted, free and clear of all bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants except where
such bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants have not resulted in, and could not reasonably be
expected to result in, a Material Adverse Effect. The Company and its subsidiaries have implemented and maintained commercially reasonable
controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential
or regulated data (“Personal Data”)) used in connection with their businesses, and there have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the
duty to notify any other person (which notification was not made), nor any incidents under internal review or investigations relating
to the same. The Company and its subsidiaries are in material compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized
use, access, misappropriation or modification.
(xxxv) Compliance
with Laws. Except as would not, or is not reasonably likely to, have a material current or future adverse effect on the business,
prospects, financial condition, results of operations, liquidity or capital resources of the Company and its subsidiaries taken as a whole,
the Company and each of its subsidiary: (i) is and at all times has been operating and conducting its business in compliance with
all statutes, rules, regulations, ordinances, judgments, orders and decrees of all Governmental Entities applicable to the Company and
such Subsidiary (“Applicable Laws”); (ii) has not received any warning letter, untitled letter or other correspondence
or notice from any Governmental Entity alleging or asserting noncompliance with any Applicable Laws or any licenses, consents, certificates,
approvals, clearances, authorizations, permits, orders and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(iii) possesses all Authorizations and such Authorizations are valid and in full force and effect and is not in violation of any
term of any such Authorizations; (iv) has not received written notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, inquiry, arbitration or other action from any Governmental Entity or third party alleging that any operation or activity
is in violation of any Applicable Laws or Authorizations and has no knowledge that any such Governmental Entity or third party is considering
any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) has not received written notice that any
Governmental Entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and has no knowledge
that any such Governmental Entity is considering such action; and (vi) has filed, obtained, maintained or submitted all reports,
documents, forms, filings, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable
Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments were complete and correct respects on the date filed (or were corrected or supplemented by a subsequent submission).
(xxxvii) Prohibited
Activities. BDO USA, P.C. has not been engaged by the Company to perform any “prohibited activities” (as defined in Section 10A
of the Exchange Act).
(xxxviii) Off-Balance
Sheet Arrangements. There are no material off-balance sheet arrangements (as defined in Item 303 of Regulation S-K) that, individually
or in the aggregate, have or are reasonably likely to have a material current or future effect on the business, prospects, financial condition,
revenues or expenses, changes in financial condition, results of operations, liquidity, capital expenditures or capital resources of the
Company and its subsidiaries taken as a whole.
(b) Any
certificate signed by any officer of the Company and delivered to the Representative on behalf of the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
| 4. | Purchase, Sale and Delivery of Shares. |
(a) On
the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth,
the Company agrees to issue and sell the Firm Shares to the several Underwriters, and the several Underwriters agree, severally and not
jointly, to purchase the Firm Shares set forth opposite the names of the Underwriters in Schedule I hereto. The purchase price
to be paid by the Underwriters to the Company for the Firm Shares shall be $4.65 per share (which for the avoidance of doubt equals ninety-three
percent (93.0%) of the per Firm Shares public offering price)(the “Initial Price”).
(b) The
Firm Shares will be delivered by the Company to the Representative, for the respective accounts of the several Underwriters, against payment
of the purchase price therefor by wire transfer of same day funds payable to the order of the Company at the offices of Roth Capital Partners,
LLC, 888 San Clemente Drive, Suite 400, Newport Beach, CA 92660, or such other location as may be mutually acceptable, at 9:00 a.m. (Eastern
Time), on the first (or if the Firm Shares are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30
p.m. (Eastern time), the second) full business day following the date hereof, or at such other time and date as the Representative
and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, or, in the case of the Option Shares, at such date
and time set forth in the Option Notice. The time and date of delivery of the Firm Shares is referred to herein as the “Closing
Date.” On the Closing Date, the Company shall deliver the Firm Shares, which shall be registered in the name or names and shall
be in such denominations as the Representative may request on behalf of the Underwriters at least one (1) business day before the
Closing Date, to the respective accounts of the several Underwriters, which delivery shall be made through the facilities of the Depository
Trust Company’s DWAC system.
(c) The
Company hereby grants to the Underwriters the option to purchase some or all of the Option Shares and, upon the basis of the warranties
and representations and subject to the terms and conditions herein set forth, the Underwriters shall have the right, severally and not
jointly, to purchase all or any portion of the Option Shares as may be necessary to cover over-allotments made in connection with the
transactions contemplated hereby. The purchase price to be paid by the Underwriters for the Option Shares shall be the Initial Price.
This option may be exercised by the Underwriters at any time and from time to time on or before the thirtieth (30th) day following the
date hereof, by written notice to the Company (the “Option Notice”). The Option Notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised, and the date and time when the Option Shares are to be delivered (such
date and time being herein referred to as the “Option Closing Date”); provided, however, that the Option
Closing Date shall not be earlier than the Closing Date (as defined below) nor earlier than the first business day after the date on which
the option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised
unless the Company and the Representative otherwise agree. If the Underwriters elect to purchase less than all of the Option Shares, the
Company agrees to sell to each Underwriter the number of Option Shares obtained by multiplying the number of Option Shares specified in
such notice by a fraction, the numerator of which is the number of Option Shares set forth opposite the name of the Underwriter in Schedule
I hereto under the caption “Number of Option Shares to be Purchased” and the denominator of which is the total number
of Option Shares.
(d) Payment
of the purchase price for and delivery of the Option Shares shall be made on an Option Closing Date in the same manner and at the same
office as the payment for the Firm Shares as set forth in subparagraph (b) above.
(e) It
is understood that the Representative has been authorized, for its own account and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for, the Securities the Underwriters have agreed to purchase. The
Representative, individually and not as a Representative of the Underwriters, may (but shall not be obligated to) make payment for any
Securities to be purchased by any Underwriter whose funds shall not have been received by the Representative by the Closing Date or any
Option Closing Date, as the case may be, for the account of such Underwriter, but any such payment shall not relieve such Underwriter
from any of its obligations under this Agreement.
(f) On
the Closing Date and on each Option Closing Date, if any, the Company shall issue to Roth Capital (and/or its designees), a warrant (the
“Representative’s Warrants”), in form and substance acceptable to Roth Capital for the purchase of an aggregate
number of shares of Common Stock representing five percent (5%) of the Shares sold on the Closing Date and Option Closing Date, as applicable
(which, for the avoidance of doubt, shall be 93,750 shares of Common Stock on the Closing Date, assuming that the Underwriters do not
exercise the option granted in Section 4(c) to purchase some or all of the Option Shares on such date), which shall be registered
in the name or names and shall be in such denominations as Roth Capital may request at least one (1) business day before the Closing
Date or Option Closing Date, as applicable.
| 5. | Covenants of the Company. |
The Company covenants and agrees with each Underwriter
as follows:
(a) The
Company shall prepare the Final Prospectus in a form approved by the Representative and file such Final Prospectus pursuant to Rule 424(b) under
the Securities Act not later than 9:30 a.m. (Eastern time) on the second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by the Rules and Regulations.
(b) During
the period beginning on the date hereof and ending on the later of the Closing Date or such date as determined by the Representative the
Final Prospectus is no longer required by law to be delivered in connection with sales by an underwriter or dealer (the “Prospectus
Delivery Period”), prior to amending or supplementing the Registration Statement, including any Rule 462 Registration Statement,
the Time of Sale Disclosure Package or the Final Prospectus, the Company shall furnish to the Representative for review and comment a
copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which
the Representative reasonably objects.
(c) From
the date of this Agreement until the end of the Prospectus Delivery Period, the Company shall promptly advise the Representative in writing
(A) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (B) of the
time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to the Time of
Sale Disclosure Package or the Final Prospectus, (C) of the time and date that any post-effective amendment to the Registration Statement
becomes effective and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending its use or the use of the Time of Sale Disclosure Package or the Final Prospectus, or of any
proceedings to remove, suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed
for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes.
If the Commission shall enter any such stop order at any time during the Prospectus Delivery Period, the Company will use its reasonable
efforts to obtain the lifting of such order at the earliest possible moment. Additionally, the Company agrees that it shall comply with
the provisions of Rules 424(b) or 430A as applicable, under the Securities Act and will use its reasonable efforts to confirm
that any filings made by the Company under Rule 424(b) or Rule 433 were received in a timely manner by the Commission (without
reliance on Rule 424(b)(8) or 164(b) of the Securities Act).
(d) (A) During
the Prospectus Delivery Period, the Company will comply with all requirements imposed upon it by the Securities Act, as now and hereafter
amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act, as now and hereafter amended,
so far as necessary to permit the continuance of sales of or dealings in the Shares as contemplated by the provisions hereof, the Time
of Sale Disclosure Package, the Registration Statement and the Final Prospectus. If during the Prospectus Delivery Period any event occurs
the result of which would cause the Final Prospectus (or if the Final Prospectus is not yet available to prospective purchasers, the Time
of Sale Disclosure Package ) to include an untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary or appropriate
in the opinion of the Company or its counsel or the Representative or counsel to the Underwriters to amend the Registration Statement
or supplement the Final Prospectus (or if the Final Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure
Package ) to comply with the Securities Act, the Company will promptly notify the Representative, allow the Representative the opportunity
to provide reasonable comments on such amendment, prospectus supplement or document, and will amend the Registration Statement or supplement
the Final Prospectus (or if the Final Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package)
or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
(B) If
at any time during the Prospectus Delivery Period there occurred or occurs an event or development the result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or any Prospectus or included
or would include, when taken together with the Time of Sale Disclosure Package, an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) The
Company shall take or cause to be taken all necessary action to qualify the Securities for sale under the securities laws of such jurisdictions
as the Representative reasonably designates and to continue such qualifications in effect so long as required for the distribution of
the Securities, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not so qualified, to execute a general consent to service of process in any state or
to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise subject.
(f) The
Company will furnish to the Underwriters and counsel to the Underwriters copies of the Registration Statement, each Prospectus, any Issuer
Free Writing Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities
as the Underwriters may from time to time reasonably request.
(g) The
Company will make generally available to its security holders as soon as practicable, but in any event not later than 15 months after
the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that
shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.
(h) The
Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will promptly pay or
cause to be paid (A) all expenses (including transfer taxes allocated to the respective transferees) incurred by the Company in connection
with the delivery to the Underwriters of the Securities (including all fees and expenses of the registrar and transfer agent of the Shares
and the registrar and transfer agent of the Representative’s Warrants (if other than the Company), and the cost of preparing and
printing stock certificates and warrant certificates), (B) all expenses and fees (including, without limitation, fees and expenses
of the Company’s counsel) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement
(including the financial statements therein and all amendments, schedules, and exhibits thereto), the Securities, the Time of Sale Disclosure
Package, any Prospectus or the Final Prospectus, and any amendment thereof or supplement thereto, (C) all reasonable filing fees
and reasonable fees and disbursements of the Underwriters’ counsel incurred in connection with the qualification of the Securities
for offering and sale by the Underwriters or by dealers under the securities or blue sky laws of the states and other jurisdictions that
the Representative shall designate, (D) the filing fees and reasonable fees and disbursements of counsel to the Underwriters incident
to any required review and approval by FINRA, of the terms of the sale of the Securities, (F) listing fees related to the Shares,
and (G) all other costs and expenses incident to the performance of its obligations hereunder that are not otherwise specifically
provided for herein. The Company will reimburse the Representative for the Underwriters’ reasonable out-of-pocket expenses, including
legal fees and disbursements, in connection with the purchase and sale of the Securities contemplated hereby up to an aggregate of $350,000
(including reasonable fees and expenses of counsel payable pursuant to clauses (C) and (D) above) (the “Cap”).
If this Agreement is terminated by the Representative in accordance with the provisions of Section 6, Section 9 or Section 10,
the Company will reimburse the Underwriters for all out-of-pocket fees, expenses and disbursements (including, but not limited to, fees
and expenses of counsel, travel expenses, postage, facsimile and telephone charges) incurred by the Underwriters in connection with their
investigation, preparing to market and marketing the Shares or in contemplation of performing their obligations hereunder (without regard
to the Cap, other than in the case of termination in accordance with the provisions of Section 10).
(i) The
Company intends to apply the net proceeds from the sale of the Securities to be sold by it hereunder for the purposes set forth in the
Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus under the heading “Use of Proceeds”.
(j) The
Company has not taken and will not take, directly or indirectly, during the Prospectus Delivery Period, any action designed to or which
might reasonably be expected to cause or result in, or that has constituted, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(k) The
Company represents and agrees that, unless it obtains the prior written consent of the Representative, and each Underwriter, severally
and not jointly, represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not
make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus; provided that the prior written
consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule IV.
Any such free writing prospectus consented to by the Company and the Representative is hereinafter to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus
as an “issuer free writing prospectus,” as defined in Rule 433, and has complied or will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and
record-keeping.
(k) The
Company hereby agrees that, without the prior written consent of the Representative, it will not, during the period ending one hundred
and eighty (180) days after the date hereof (“Lock-Up Period”), (i) offer, pledge, issue, sell, contract to sell,
purchase, contract to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock; or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; or
(iii) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock except for any registration statements on Form S-8. The restrictions
contained in the preceding sentence shall not apply to (1) the Securities to be sold hereunder, (2) the issuance of Common Stock
upon the exercise of options or warrants or the conversion of outstanding preferred stock or other outstanding convertible securities
disclosed as outstanding in the Registration Statement (excluding exhibits thereto), the Time of Sale Disclosure Package, and the Final
Prospectus, (3) the issuance of stock options not exercisable during the Lock-Up Period and the grant of restricted stock awards
or restricted stock units or shares of Common Stock pursuant to equity incentive plans described in the Registration Statement (excluding
exhibits thereto), the Time of Sale Disclosure Package, and the Final Prospectus or (4) the issuance of or entry into an agreement
to issue shares of Common Stock in connection with one or more mergers, acquisitions of securities, businesses, property or other assets,
products or technologies, joint ventures, commercial relationships or other strategic corporate transactions or alliances, provided
that (a) the recipients thereof shall execute a Lock-Up Agreement (as defined below) in the form set forth on Exhibit A
hereto prior to the issuance of such shares of Common Stock and (b) any such issuances pursuant to this clause (4), individually
or in the aggregate, shall not exceed 7.5% of the outstanding Common Stock as of the Closing Date.
(l) The
Company hereby agrees, during a period of three (3) years from the effective date of the Registration Statement, to furnish to the
Representative copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to the Representative
as soon as reasonably practicable upon availability, copies of any reports and financial statements furnished to or filed with the Commission
or any national securities exchange on which any class of securities of the Company is listed; provided, that any information or documents
available on EDGAR shall be considered furnished for purposes of this Section 5(l).
(m) Prior
to the Closing Date, the Company shall not issue any press release or other communications directly or indirectly and shall not hold any
press conference with respect to the Company or its subsidiaries, or the condition, financial or otherwise, or the earnings, business
affairs or business prospects of any of them, or the offering of the Shares, without the prior written consent of the Representative unless
in the judgment of the Company and its counsel, and after notification to the Representative, such press release or communication is required
by law or applicable rules or regulations.
(n) The
Company hereby agrees to engage and maintain, at its expense, a registrar and transfer agent for the Common Stock and a registrar and
transfer agent for the Representative’s Warrants (if other than the Company).
(o) The
Company hereby agrees to use its reasonable best efforts to obtain approval to list the Shares and the Representative’s Warrants
Shares on Nasdaq. The Company further agrees to use its reasonable best efforts to effect and maintain the listing of the Shares and its
Common Stock on Nasdaq for at least three years from the date of this Agreement.
(p) The
Company will promptly notify the Representative if it ceases to be an Emerging Growth Company or a Smaller Reporting Company at any time
prior to the later of (a) the end of the Prospectus Delivery Period and (b) the expiration of the lock-up period described in
Section 5(k) above.
(q) The
Company hereby agrees not to take, directly or indirectly, any action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any securities
of the Company to facilitate the sale or resale of the Securities.
(r) The
Company, during the Prospectus Delivery Period, will file all reports and other documents required to be filed with the Commission pursuant
to Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act and the regulations promulgated
thereunder.
| 6. | Conditions of the Underwriter’s Obligations. |
The respective obligations of each Underwriter
hereunder to purchase the Securities are subject to the accuracy, as of the date hereof and at all times through the Closing Date, and
on each Option Closing Date (as if made on the Closing Date or such Option Closing Date, as applicable), of and compliance with all representations,
warranties and agreements of the Company contained herein, the performance by the Company of its obligations hereunder and the following
additional conditions:
(a) If
filing of the Final Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Securities
Act or the Rules and Regulations, the Company shall have filed the Final Prospectus (or such amendment or supplement) or such Issuer
Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or
164(b) under the Securities Act); the Registration Statement shall remain effective; no stop order suspending the effectiveness of
the Registration Statement or any part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or
preventing the use of the Time of Sale Disclosure Package, any Prospectus or the Final Prospectus shall have been issued; no proceedings
for the issuance of such an order shall have been initiated or threatened by the Commission; any request of the Commission or the Representative
for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, any Prospectus, the Final
Prospectus or otherwise) shall have been complied with to the satisfaction of the Representative.
(b) The
Shares and the Representative’s Warrant Shares shall be approved for listing on Nasdaq, subject to official notice of issuance.
(c) FINRA
shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(d) The
Representative shall not have reasonably determined, and advised the Company, that the Registration Statement, the Time of Sale Disclosure
Package, any Prospectus or the Final Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact
which, in the reasonable opinion of the Representative, is material, or omits to state a fact which, in the reasonable opinion of the
Representative, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) On
the Closing Date and on each Option Closing Date, there shall have been furnished to the Representative, for the benefit of the Underwriters,
the opinion and negative assurance letters of Pryor Cashman LLP, counsel to the Company, each dated the Closing Date or the Option Closing
Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative.
(f) On
the Closing Date and on each Option Closing Date, there shall have been furnished to the Representative, for the benefit of the Underwriters,
the opinion and negative assurance letter of Pillsbury Winthrop Shaw Pittman LLP, counsel to the Underwriters, dated the Closing Date
or the Option Closing Date, as applicable, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative.
(g) The
Representative, for the benefit of the Underwriters, shall have received a letter of BDO USA, P.C., on the date hereof and on the Closing
Date and on each Option Closing Date, addressed to the Underwriters, confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualifications of accountants under
Rule 2-01 of Regulation S-X of the Commission, and confirming, as of the date of each such letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified financial information is given in the Registration Statement,
the Time of Sale Disclosure Package and the Final Prospectus, as of a date not prior to the date hereof or more than five days prior to
the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters required
by the Underwriters.
(h) The
Representative shall have received, simultaneously with the execution of this Agreement and on the Closing Date and each Option Closing
Date, a certificate of the chief financial officer of the Company addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representative, with respect to certain financial information related to the Company included in the Registration Statement, the
Time of Sale Disclosure Package and the Final Prospectus, as well as the Marketing Materials, and certain other information contained
in the Registration Statement, the Prospectus and the Marketing Materials.
(i) The
representations and warranties of the Company contained in this Agreement and the representations and warranties of the Company contained
in the certificates delivered pursuant to Sections 6(h) and 6(j) shall be true and correct, when made and on and as of each
Closing Date as if made on such date. The Company shall have performed all covenants and agreements and satisfied all the conditions contained
in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(j) On
the Closing Date and on each Option Closing Date, there shall have been furnished to the Representative, for the benefit of the Underwriters,
a certificate, dated the Closing Date and on each Option Closing Date and addressed to the Underwriters, signed by the chief executive
officer and the chief financial officer of the Company, in their capacity as officers of the Company, to the effect that:
(i) the
representations, warranties and agreements of the Company in this Agreement were true and correct when made and are true and correct in
all material respects as of such Closing Date (provided, that each representation and warranty that contains a materiality qualifier
shall be true and correct in all respects as of such Closing Date);
(ii) the
Company has performed all covenants and agreements and satisfied all conditions contained herein;
(iii) they
have carefully examined the Registration Statement, the Prospectus, and the Time of Sale Disclosure Package and, in their opinion (A) (1) as
of the Effective Time, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (2) as of the
date thereof or as of the date hereof, the Prospectus did not contain and does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading, and (3) as of the Applicable Time, the Time of Sale Disclosure Package did not include any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, and (B) since the Effective Time, no event has occurred
which should have been set forth in a supplement or otherwise required an amendment to the Registration Statement, the Time of Sale Disclosure
Package or the Prospectus;
(iv)
no stop order or other order (A) suspending the effectiveness of the Registration Statement, (B) suspending the qualification
of the Securities for offering or sale, or (C) suspending or preventing the use of the Time of Sale Disclosure Package, any Prospectus
or the Final Prospectus has been issued, and to the Company’s knowledge, no proceedings for that purpose have been instituted or
are pending under the Securities Act; and
(v) there
has been no occurrence of any event resulting or reasonably likely to result in a Material Adverse Effect during the period from and after
the date of this Agreement and prior to the Closing Date or on the Option Closing Date, as applicable.
(k) On
or before the date hereof, the Representative shall have received duly executed lock-up agreements (each a “Lock-Up Agreement”)
in the form set forth on Exhibit A hereto, by and between the Representative and each of the parties specified in Schedule
V.
(l) The
Company shall have furnished to the Underwriters and their counsel such additional documents, certificates and evidence as the Underwriters
or their counsel may have reasonably requested.
If any condition specified in this Section 6
shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representative by notice to
the Company at any time at or prior to the Closing Date or on or prior to the Option Closing Date, as applicable, and such termination
shall be without liability of any party to any other party, except that Section 5(h) and Sections 7 through 18, inclusive, shall
survive any such termination and remain in full force and effect.
| 7. | Indemnification and Contribution. |
(a) The
Company agrees to indemnify, defend and hold harmless each Underwriter, its affiliates, directors and officers and employees, and each
person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any losses, claims, damages or liabilities to which such party may become subject, under the Securities Act or otherwise
(including in settlement of any litigation if such settlement is effected with the written consent of the Company), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, including the information deemed to be a part of the Registration
Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A, 430B and 430C of the Rules and Regulations,
or arise out of or are based upon the omission from the Registration Statement, or alleged omission to state therein, a material fact
required to be stated therein or necessary to make the statements therein not misleading (ii) an untrue statement or alleged untrue
statement of a material fact contained in the Time of Sale Disclosure Package, any Written Testing-the-Waters Communications, any Prospectus
or the Final Prospectus, or any amendment or supplement thereto, or the Marketing Materials or in any other materials used in connection
with the offering of the Securities, or arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading, (iii) in whole or in part, any inaccuracy in or breach of the representations and warranties of the Company contained
herein, or (iv) in whole or in part, any failure of the Company to perform its obligations hereunder or under law, and will reimburse
such party for any legal or other expenses reasonably incurred by such party in connection with evaluating, investigating or defending
against such loss, claim, damage, liability or action; provided, however, that such indemnity shall not inure to
the benefit of any Underwriter (or any person controlling such Underwriter) in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Time of Sale Disclosure Package, any Written Testing-the-Waters Communications, any Prospectus
or the Final Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished
to the Company by the Underwriters specifically for use in the preparation thereof, which written information is set forth in Section 7(f).
(b) Each
Underwriter, severally and not jointly, will indemnify, defend and hold harmless the Company, its directors and each officer of the Company
who signs the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any losses, claims, damages or liabilities to which such party may become
subject, under the Securities Act or otherwise (including in settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Time of Sale
Disclosure Package, any Prospectus or the Final Prospectus, or any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, the Time of Sale Disclosure Package, any Prospectus or the Final Prospectus,
or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by such Underwriter
specifically for use in the preparation thereof, which written information is set forth in Section 7(f), and will reimburse such
party for any legal or other expenses reasonably incurred by such party in connection with evaluating, investigating, and defending against
any such loss, claim, damage, liability or action. The obligation of each Underwriter to indemnify the Company (including any controlling
person, director or officer thereof) shall be limited to the amount of the underwriting discount applicable to the Shares to be purchased
by such Underwriter hereunder actually received by such Underwriter.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the failure to notify the indemnifying party shall not relieve the indemnifying party
from any liability that it may have to any indemnified party except to the extent such indemnifying party has been materially prejudiced
by such failure. In case any such action shall be brought against any indemnified party, and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of the indemnifying party’s election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof; provided, however, that if (i) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying party, (ii) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of the indemnified party), or (iii) the indemnifying
party has not in fact employed counsel reasonably satisfactory to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, the indemnified party shall have the right to employ a single
counsel to represent it in any claim in respect of which indemnity may be sought under subsection (a) or (b) of this Section 7,
in which event the reasonable and documented fees and expenses of such separate counsel shall be borne by the indemnifying party or parties
and reimbursed to the indemnified party as incurred.
The indemnifying party under
this Section 7 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against
any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is a party or could be named and indemnity was or would be sought
hereunder by such indemnified party, unless such settlement, compromise or consent (a) includes an unconditional release of such
indemnified party from all liability for claims that are the subject matter of such action, suit or proceeding and (b) does not include
a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If
the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the
offering and sale of the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company bear to the total underwriting discount received by the Underwriters,
in each case as set forth in the table on the cover page of the Final Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Underwriters and the parties’ relevant intent, knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this subsection (d) were to be determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable considerations referred to in the first sentence of this
subsection (d). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending against any action or claim that is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount of the underwriting
discount applicable to the Shares to be purchased by such Underwriter hereunder actually received by such Underwriter. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ respective obligations to contribute
as provided in this Section 7 are several in proportion to their respective underwriting commitments and not joint.
(e) The
obligations of the Company under this Section 7 shall be in addition to any liability that the Company may otherwise have and the
benefits of such obligations shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act; and the obligations of each Underwriter under
this Section 7 shall be in addition to any liability that each Underwriter may otherwise have and the benefits of such obligations
shall extend, upon the same terms and conditions, to the Company’s directors, the officers of the Company signing the Registration
Statement and each person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act.
(f) For
purposes of this Agreement, each Underwriter severally confirms, and the Company acknowledges and agrees, that there is no information
concerning such Underwriter furnished in writing to the Company by such Underwriter specifically for preparation of or inclusion in the
Registration Statement, the Time of Sale Disclosure Package, any Prospectus or the Final Prospectus, other than the statement set forth
in the last paragraph on the cover page of the Prospectus, the marketing and legal names of each Underwriter, and the statements
set forth in the “Underwriting” section of the Registration Statement, the Time of Sale Disclosure Package, and the Final
Prospectus only insofar as such statements relate to the amount of selling concession and re-allowance, if any, or to over-allotment,
stabilization and related activities that may be undertaken by such Underwriter.
| 8. | Representations and Agreements to Survive Delivery. |
All representations, warranties,
and agreements of the Company contained herein or in certificates delivered pursuant hereto, including, but not limited to, the agreements
of the several Underwriters and the Company contained in Section 5(h) and Sections 7 through 18 hereof, shall remain operative
and in full force and effect regardless of any investigation made by or on behalf of the several Underwriters or any controlling person
thereof, or the Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the
Shares to and by the several Underwriters hereunder.
| 9. | Termination of this Agreement. |
(a) The
Representative shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at
or prior to the Closing Date or any Option Closing Date (as to the Option Shares to be purchased on such Option Closing Date only), if
in the discretion of the Representative, (i) there has occurred any material adverse change in the securities markets or any event,
act or occurrence that has materially disrupted, or in the opinion of the Representative, will in the future materially disrupt, the securities
markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as to make it, in the judgment of the Representative, inadvisable or
impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) trading in or quotation of the Company’s
Common Stock shall have been suspended by the Commission or Nasdaq or trading in securities generally on the Nasdaq Stock Market or the
New York Stock Exchange (“NYSE”) shall have been suspended, (iii) minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required, on the Nasdaq Stock Market or the NYSE, by such exchange
or by order of the Commission or any other governmental authority having jurisdiction, (iv) a banking moratorium shall have been
declared by federal or state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act
of terrorism involving the United States, any declaration by the United States of a national emergency or war, any substantial change
or development involving a prospective substantial change in United States or international political, financial or economic conditions
or any other calamity or crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity,
whether or not covered by insurance, or (vii) in the judgment of the Representative, there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure
Package or the Final Prospectus, any material adverse change in the assets, properties, condition, financial or otherwise, or in the results
of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole, whether or not arising
in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions
of Section 5(h) and Sections 7 through 18, inclusive, hereof shall at all times be effective and shall survive such termination.
(b) If
the Representative elects to terminate this Agreement as provided in this Section, the Company and the other Underwriters shall be notified
promptly by the Representative by telephone, confirmed by letter.
| 10. | Substitution of Underwriters. |
If any Underwriter or Underwriters
shall default in its or their obligations to purchase Shares hereunder on the Closing Date or any Option Closing Date and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of
the total number of Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall
be obligated severally, in proportion to their respective commitments hereunder, to purchase the Shares which such defaulting Underwriter
or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so
default and the aggregate number of Shares with respect to which such default or defaults occur is more than ten percent (10%) of the
total number of Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to
the remaining Underwriters and the Company for the purchase of such Shares by other persons are not made within forty-eight (48) hours
after such default, this Agreement shall terminate.
If the remaining Underwriters
or substituted Underwriters are required hereby or agree to take up all or part of the Shares of a defaulting Underwriter or Underwriters
on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone
such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order to permit the Company
to effect whatever changes in the Registration Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby
be made necessary, and the Company agrees to promptly file any amendments to the Registration Statement or the Final Prospectus which
may thereby be made necessary, and (ii) the respective numbers of Shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained
shall relieve any defaulting Underwriter of its liability to the Company or any other Underwriter for damages occasioned by its default
hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting
Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set
forth in Section 2 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Section 5 and the provisions
of Sections 7 through 18, inclusive, shall not terminate and shall remain in full force and effect.
As used in this Agreement,
the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10.
Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
All notices and communications
hereunder shall be in writing and mailed or delivered or by telephone or facsimile if subsequently confirmed in writing, (a) if to
the Representative, Roth Capital Partners, LLC, 888 San Clemente Drive, Newport Beach, CA 92660, Facsimile: (949) 720-7227, Attention: Equity
Capital Markets, with a copy to Pillsbury Winthrop Shaw Pittman LLP, 31 W. 52nd Street, New York, NY 10019, Attention: Jonathan J. Russo, Esq.
and Alexandra F. Calcado, Esq., Facsimile: (212) 858-1500 and (b) if to the Company, to its agent for service as such agent’s
address appears on the cover page of the Registration Statement with a copy to Pryor Cashman LLP, 7 Times Square, New York, NY 10036,
Attention: M. Ali Panjwani, Esq., Facsimile: (212) 326-0806.
| 12. | Persons Entitled to Benefit of Agreement. |
This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective successors and assigns and the controlling persons, officers
and directors referred to in Section 7. Nothing in this Agreement is intended or shall be construed to give to any other person,
firm or corporation any legal or equitable remedy or claim under or in respect of this Agreement or any provision herein contained. The
term “successors and assigns” as herein used shall not include any purchaser, as such purchaser, of any of the Shares from
any Underwriter.
| 13. | Absence of Fiduciary Relationship. |
The Company acknowledges
and agrees that: (a) each Underwriter has been retained solely to act as underwriter in connection with the sale of the Shares and
that no fiduciary, advisory or agency relationship between the Company and any Underwriter has been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether the Underwriter has advised or is advising the Company on other matters; (b) the
price and other terms of the Shares set forth in this Agreement were established by the Company following discussions and arms-length
negotiations with the Underwriters and the Company is capable of evaluating and understanding and understands and accepts the terms, risks
and conditions of the transactions contemplated by this Agreement; (c) it has been advised that the Underwriters and their affiliates
are engaged in a broad range of transactions that may involve interests that differ from those of the Company and that no Underwriter
has no obligation to disclose such interest and transactions to the Company by virtue of any fiduciary, advisory or agency relationship;
and (d) it has been advised that each Underwriter is acting, in respect of the transactions contemplated by this Agreement, solely
for the benefit of such Underwriter, and not on behalf of the Company. Additionally, the Company acknowledges and agrees that the Underwriter
has not and will not advise the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company has consulted with its own advisors concerning such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to
the Company or any other person with respect thereto, whether arising prior to or after the date hereof. Any review by the Underwriters
of the Company, the transactions contemplated hereby or other matters relating to such transactions have been and will be performed solely
for the benefit of the Underwriters and shall not be on behalf of the Company. The Company agrees that it will not claim that the Underwriters
have rendered advisory services of any nature or respect, or owe a fiduciary duty to the Company or any other person in connection with
any such transaction or the process leading thereto.
| 14. | Amendments and Waivers. |
No supplement, modification
or waiver of this Agreement shall be binding unless executed in writing by the party to be bound thereby. The failure of a party to exercise
any right or remedy shall not be deemed or constitute a waiver of such right or remedy in the future. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (regardless of whether similar), nor shall
any such waiver be deemed or constitute a continuing waiver unless otherwise expressly provided.
| 15. | Partial Unenforceability. |
The invalidity or unenforceability
of any section, paragraph, clause or provision of this Agreement shall not affect the validity or enforceability of any other section,
paragraph, clause or provision.
This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
| 17. | Submission to Jurisdiction. |
The Company irrevocably (a) submits
to the jurisdiction of the Supreme Court of the State of New York, Borough of Manhattan or the United States District Court for the Southern
District of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements
or transactions contemplated by this Agreement, the Registration Statement, the Time of Sale Disclosure Package and any Prospectus (each
a “Proceeding”), (b) agrees that all claims in respect of any Proceeding may be heard and determined in any such
court, (c) waives, to the fullest extent permitted by law, any immunity from jurisdiction of any such court or from any legal process
therein, (d) agrees not to commence any Proceeding other than in such courts, and (e) waives, to the fullest extent permitted
by law, any claim that such Proceeding is brought in an inconvenient forum. THE COMPANY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT, THE REGISTRATION STATEMENT, THE TIME OF SALE DISCLOSURE PACKAGE, ANY PROSPECTUS AND THE FINAL PROSPECTUS.
This Agreement (together
with the other agreements and documents being delivered pursuant to or in connection with this Agreement) constitutes the entire agreement
of the parties hereto with respect to the subject matter hereof and thereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter hereof. Notwithstanding anything to the contrary set forth herein, it
is understood and agreed by the parties hereto that all other terms and conditions of that certain engagement letter between the Company
and Roth Capital, dated January 4, 2024 and as amended to date, shall remain in full force and effect.
This Agreement may be executed
and delivered (including by facsimile transmission or electronic mail) in one or more counterparts and, if executed in more than one counterpart,
the executed counterparts shall each be deemed to be an original and all such counterparts shall together constitute one and the same
instrument.
[Signature Page Follows]
Please sign and return to
the Company the enclosed duplicates of this letter whereupon this letter will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
| |
Very truly yours, |
| |
|
| |
ZSPACE, INC. |
| |
|
| |
By: |
/s/ Paul Kellenberger |
| |
|
Name: Paul Kellenberger |
| |
|
Title: Chief Executive Officer |
Confirmed as of the date first above-mentioned
by the Representative of the several Underwriters:
| By: |
ROTH CAPITAL PARTNERS, LLC |
| |
By: |
/s/ Aaron M. Gurewitz |
|
| |
|
Name: Aaron M. Gurewitz |
|
| |
|
Title: President and Head of Investment Banking |
|
{Signature
Page to Underwriting Agreement}
SCHEDULE I
Underwriters
| Name | |
Number of
Firm Shares
to be Purchased | | |
Number of
Option Shares
to be Purchased | |
| Roth Capital Partners, LLC | |
| 1,031,250 | | |
| 154,688 | |
| Northland Securities, Inc. | |
| 703,125 | | |
| 105,469 | |
| Barrington Research Associates, Inc. | |
| 140,625 | | |
| 21,093 | |
SCHEDULE II
Final Term Sheet
| Issuer: |
zSpace, Inc. (the “Company”) |
| |
|
| Symbol: |
ZSPC |
| |
|
| Securities: |
1,875,000 shares of common stock, par value $0.00001 per share (the “Common Stock”), of the Company |
| |
|
| Over-allotment option: |
Up to an additional 281,250 shares of Common Stock |
| |
|
| Public offering price: |
$5.00 per share of Common Stock |
| |
|
| Underwriting discount: |
$0.35 per share of Common Stock |
| |
|
| Expected net proceeds: |
Approximately $8.7 million (or $10.0 million if the overallotment option is exercised in full)(before deducting estimated offering expenses but after deducting the underwriting discount) |
| |
|
| Trade date: |
December 5, 2024 |
| |
|
| Settlement date: |
December 6, 2024 |
SCHEDULE III
Written Testing-the-Waters Communications
Investor Presentation, dated October 15, 2024
SCHEDULE IV
Free Writing Prospectus
None.
SCHEDULE V
List of Officers, Directors and Stockholders
Executing Lock-Up Agreements
| |
1. |
dSpace Investments Limited |
| |
|
| |
2. |
bSpace Investments Limited |
| |
|
| |
3. |
Gulf Islamic Investments, LLC |
| |
|
| |
4. |
Fiza Investments Limited |
| |
|
| |
5. |
Innotron Technology Corporation Ltd. |
| |
|
| |
6. |
TimeSpeed Technology Corporation |
| |
|
| |
7. |
Paul Kellenberger |
| |
|
| |
8. |
Erick DeOliveira |
| |
|
| |
9. |
Michael Harper |
| |
|
| |
10. |
Ron Rheinheimer |
| |
|
| |
11. |
Pankaj Gupta |
| |
|
| |
12. |
Amit Jain |
| |
|
| |
13. |
Joanna Morris |
| |
|
| |
14. |
Abhay Pande |
| |
|
| |
15. |
Angela Prince |
| |
|
| |
16. |
Jane Swift |
EXHIBIT A
Form of Lock-Up Agreement
_______, 2024
Roth Capital Partners, LLC
As the Representative of the
Several Underwriters Named on Schedule I hereto
| c/o |
Roth Capital Partners, LLC |
| |
888 San Clemente Drive, Suite 400 |
| |
Newport Beach, CA 92660 |
Re: zSpace, Inc.
Registered Public Offering of Common Stock
Ladies and Gentlemen:
In order to induce Roth Capital
Partners, LLC (the “Roth Capital”) to enter into a certain underwriting agreement (the “Underwriting Agreement”)
with zSpace, Inc., a Delaware corporation (the “Company”), with respect to a registered public offering of shares
(the “Offering”) of the Company’s Common Stock, par value $0.00001 per share (“Common Stock”),
the undersigned hereby enters into this letter agreement (this “Lock-Up Agreement”) and agrees that for a period (the
“Lock-Up Period”) commencing on the date hereof and continuing through the close of trading on the date [one hundred
and eighty (180)]1[three hundred sixty-five (365)]2 days following the date of the final prospectus filed by
the Company with the Securities and Exchange Commission in connection with the Offering, the undersigned will not, without the prior written
consent of Roth Capital, directly or indirectly, (i) sell, assign, transfer, pledge, offer to sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any option for sale (including any short sale), right or warrant
to purchase, lend, establish an open “put equivalent position” (within the meaning of Rule 16a-1(h) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), or otherwise dispose of, or enter into any transaction which
is designed to or could be expected to result in the disposition of, any shares of Common Stock or securities convertible into or exercisable
or exchangeable for any equity securities of the Company (including, without limitation, shares of Common Stock or any such securities
which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations promulgated by the Securities
and Exchange Commission from time to time (such shares or securities, the “Beneficially Owned Shares”)), or publicly
announce any intention to do any of the foregoing, other than the exercise of options or warrants so long as there is no sale or disposition
of the Common Stock underlying such options or warrants during the Lock-Up Period, (ii) enter into any swap, hedge or other agreement
or arrangement that transfers in whole or in part, the economic risk of ownership of any Beneficially Owned Shares, Common Stock or securities
convertible into or exercisable or exchangeable for any equity securities of the Company, or (iii) engage in any short selling of
any Beneficially Owned Shares, Common Stock or securities convertible into or exercisable or exchangeable for any equity securities of
the Company, whether any such transaction described in clause (i), (ii) or (iii) above is to be settled by delivery of shares
of Common Stock or such other securities, in cash or otherwise. [After the date one hundred and eighty (180) days following the date of
the final prospectus filed by the Company with the Securities and Exchange Commission in connection with the Offering and continuing through
the close of trading on the date three hundred sixty-five (365) days following the date of the final prospectus filed by the Company with
the Securities and Exchange Commission in connection with the Offering, the undersigned will not, without the prior written consent of
Roth Capital, directly or indirectly effect a transaction described in clause (i), (ii) or (iii) above with regard to more than
50% of the Beneficially Owned Shares.]3
1 To be included for employees and directors of the Company
and for Kuwait Investment Authority.
2 To be included for Gulf Islamic Investments, LLC, dSpace
Investments Ltd. and bSpace Investments Ltd.
3 To be included for employees and directors of the Company
and for Kuwait Investment Authority.
In addition, notwithstanding
the foregoing, the restrictions set forth herein shall not apply to the establishment of a trading plan that complies with Rule 10b5-1
under the Exchange Act; provided, however, that the restrictions shall apply in full force to sales pursuant to the trading
plan during the Lock-Up Period. Furthermore, notwithstanding anything herein to the contrary, the restrictions will not apply to the sale
of shares of Common Stock pursuant to a trading plan that complies with Rule 10b5-1 and existing on the date of this Lock-Up Agreement.
Anything contained herein
to the contrary notwithstanding, any person to whom shares of Common Stock, securities convertible into or exercisable or exchangeable
for any equity securities of the Company or Beneficially Owned Shares are transferred from the undersigned during the Lock-Up Period shall
be bound by the terms of this Lock-Up Agreement. This Lock-Up Agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives, and assigns of the undersigned.
In addition, the undersigned
hereby waives, from the date hereof until the expiration of the Lock-Up Period, any and all rights, if any, to request or demand registration
pursuant to the Securities Act of 1933, as the same may be amended or supplemented from time to time, of any shares of Common Stock or
securities convertible into or exercisable or exchangeable for any equity securities of the Company that are registered in the name of
the undersigned or that are Beneficially Owned Shares. In order to enable the aforesaid covenants to be enforced, the undersigned hereby
consents to the placing of legends and/or stop transfer orders with the transfer agent of the Common Stock with respect to any shares
of Common Stock, securities convertible into or exercisable or exchangeable for any equity securities of the Company or Beneficially Owned
Shares.
Notwithstanding the foregoing,
and subject to the conditions below, the undersigned may transfer the Beneficially Owned Shares in the transactions listed as clauses
(i) - (vi) below without the prior written consent of Roth Capital, provided that (1) prior to each such transfer,
Roth Capital shall have received a duplicate form of this Lock-Up Agreement executed and delivered by each donee, trustee, distributee
or transferee, as the case may be, (2) no such transfer shall involve a disposition for value, (3) each such transfer (other
than transfers under clauses (ii) and (v) below) shall not be required to be reported as a reduction in beneficial ownership
in any public report, announcement or filing made or to be made with the Securities and Exchange Commission or otherwise during the Lock-Up
Period and (4) the undersigned does not otherwise voluntarily effect any public filing, announcement or report regarding any such
transfer during the Lock-Up Period: (i) as a bona fide gift or gifts; (ii) by operation of law, including pursuant to a qualified
domestic order or in connection with a divorce settlement; (iii) to the immediate family of the undersigned (for purposes of this
Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first
cousin); (iv) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned; (v) to
any beneficiary of the undersigned pursuant to a will or other testamentary document or applicable laws of descent; or (vi) to any
corporation, partnership, limited liability company or other entity all of the beneficial ownership interests of which are held by the
undersigned or the immediate family of the undersigned.
This Lock-Up Agreement shall
not apply to: (i) the transfer of Beneficially Owned Shares pursuant to a bona fide third party tender offer, merger, consolidation
or other similar transaction made to all holders of the Common Stock involving a change of control (as defined below) of the Company,
provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Beneficially
Owned Shares owned by the undersigned shall remain subject to the restrictions contained herein; (ii) transactions relating to shares
of Common Stock or other securities acquired in open market transactions after the completion of the Offering, provided that no
filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent
sales of Common Stock or other securities acquired in such open market transactions; or (iii) transfers to the Company in connection
with the exercise of options or warrants on a “cashless” or “net exercise” basis or to cover tax withholding obligations
upon the exercise of options or warrants or the vesting of restricted stock units, provided that any related filing under Section 16(a) of
the Exchange Act reporting a disposition of shares of Common Stock made in connection with such exercise shall contain a description of
the transaction and indicate that the disposition was made as part of such exercise or to cover tax withholding obligations in connection
therewith.
This Lock-Up Agreement shall
automatically terminate upon the earlier of (i) December 31, 2024, in the event that no shares of Common Stock have been sold
pursuant to the Offering by such date, (ii) the termination of the Underwriting Agreement if such agreement is terminated prior to
the Closing Date (as such term is defined in the Underwriting Agreement) in accordance with its terms, (iii) Roth Capital, on the
one hand, or the Company, on the other hand, advising the other in writing, prior to the execution of the Underwriting Agreement, that
it has determined not to proceed with the Offering, and (iv) the consummation of a change of control of the Company, meaning (a) the
consummation of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the
Company, or (b) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under such Act) of more than fifty percent
(50%) of either (i) the then outstanding shares of Common Stock of the Company; or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the election of directors.
This Lock-Up Agreement shall
be governed by, and construed in accordance with, the laws of the State of New York without regard to the principles of conflict of laws.
{Signature page follows}
This Lock-Up Agreement has
been executed as of the date first written above.
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Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ZSPACE, INC.
Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware
December 6, 2024
zSpace, Inc. (the “Corporation”),
a corporation organized and existing under the General Corporation Law of the State of Delaware (the “DGCL”), does
hereby certify as follows:
1. The
name of the Corporation is zSpace, Inc. The original Certificate of Incorporation of the Corporation was filed with the office of
the Secretary of State of the State of Delaware (the “Delaware Secretary”) on October 26, 2006. The Amended and
Restated Certificate of Incorporation of the Corporation was filed with the Delaware Secretary on December 29, 2023, and amendments
to the Amended and Restated Certificate of Incorporation were filed with the Delaware Secretary on July 12, 2024, October 25,
2024, and November 7, 2024.
2. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Section 242 and Section 245 of
the DGCL.
3. This Amended and Restated Certificate of Incorporation restates and integrates and further amends the Amended and Restated Certificate
of Incorporation of the Corporation, as heretofore amended or supplemented.
4. The
text of the Amended and Restated Certificate of Incorporation is hereby amended and restated to read in its entirety as set forth in
Exhibit A attached hereto.
[Signature page follows]
IN WITNESS WHEREOF, the Corporation
has caused this Amended and Restated Certificate of Incorporation to be duly executed by an authorized officer this 6th
day of December, 2024.
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ZSPACE, INC. |
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/s/
Paul Kellenberger |
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Name: Paul Kellenberger |
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Title: Chief Executive Officer |
[Signature Page to Amended and Restated Certificate of Incorporation]
Exhibit A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ZSPACE, INC.
ARTICLE I
The name of the corporation
is zSpace, Inc. (the “Corporation”).
ARTICLE II
The address of the Corporation’s
registered office in the State of Delaware is 160 Greentree Drive, Suite 101, City of Dover, County of Kent, 19904, and the name
of its registered agent at such address is National Registered Agents, Inc.
ARTICLE III
The purpose of the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of
Delaware (the “DGCL”) as it now exists or may hereafter be amended and supplemented.
ARTICLE IV
The Corporation is authorized
to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.”
The total number of shares of capital stock that the Corporation shall have authority to issue is 105,000,000. The total number of shares
of Common Stock that the Corporation is authorized to issue is 100,000,000, having a par value of $0.00001 per share, and the total number
of shares of Preferred Stock that the Corporation is authorized to issue is 5,000,000, having a par value of $0.00001 per share.
ARTICLE V
The designations and the
powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock
of the Corporation are as follows:
A. Common
Stock.
1. General.
The voting, dividend, liquidation and other rights and powers of the Common Stock are subject to and qualified by the rights, powers
and preferences of any series of Preferred Stock as may be designated by the Board of Directors of the Corporation (the “Board
of Directors”) and outstanding from time to time.
2. Voting. Except as otherwise provided herein or expressly required by law or this Amended and Restated Certificate of Incorporation
(including any Certificate of Designation (as defined below)), the holders of the Common Stock shall exclusively possess all voting power
with respect to the Corporation. Except as otherwise required by law or this Amended and Restated Certificate of Incorporation (including
any Certificate of Designation), the holders of shares of Common Stock shall be entitled to one vote for each such share on each matter
properly submitted to the stockholders on which the holders of the Common Stock are entitled to vote. Except as otherwise required by
law or this Amended and Restated Certificate of Incorporation (including any Certificate of Designation), at any annual or special meeting
of the stockholders of the Corporation, holders of Common Stock shall have the exclusive right to vote for the election of directors and
on all other matters properly submitted to a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by
law or this Amended and Restated Certificate of Incorporation (including any Certificate of Designation), holders of shares of any Common
Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate of Incorporation (including any Certificate
of Designation or amendment thereof) that relates solely to the rights, powers, preferences (or the qualifications, limitations or restrictions
thereof) or other terms of one or more outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock
are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Amended
and Restated Certificate of Incorporation (including any Certificate of Designation) or pursuant to the DGCL. The number of authorized
shares of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding)
by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective
of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Common
Stock or the Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holder is required pursuant
to this Amended and Restated Certificate of Incorporation (including any Certificate of Designation). Any increase in the number of securities
authorized under the Corporation’s 2024 Equity Incentive Plan, as such plan may be amended or restated from time to time, shall
require the approval of a majority of the stockholders of the Corporation.
3. Dividends.
Subject to applicable law, the rights, if any, of the holders of any outstanding series of Preferred Stock, the holders of Common Stock
shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when,
as and if declared thereon by the Board of Directors from time to time out of any assets or funds of the Corporation legally available
therefor and shall share equally on a per share basis in such dividends and distributions.
4. Liquidation,
Dissolution or Winding Up of the Corporation. Subject to applicable law, the rights, if any, of the holders of any outstanding series
of Preferred Stock, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after payment
or provision for payment of the debts and other liabilities of the Corporation, the holders of shares of Common Stock shall be entitled
to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number
of shares of Common Stock held by them.
5. Transfer
Rights. Subject to applicable law, this Amended and Restated Certificate of Incorporation (including any Certificate of Designation)
and any agreement as may be entered into from time to time amongst the stockholders, shares of Common Stock and the rights and obligations
associated therewith shall be fully transferable to any transferee.
B. Preferred
Stock.
1. Shares
of Preferred Stock may be issued from time to time in one or more series, each of such series to have such terms as stated or expressed
herein and in the resolution or resolutions providing for the creation and issuance of such series adopted by the Board of Directors
as hereinafter provided.
2. Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is expressly authorized, by adopting a resolution or resolutions providing for the issuance of the shares thereof
and by filing a certificate of designation relating thereto in accordance with the DGCL (a “Certificate of Designation”),
to provide, out of unissued shares of Preferred Stock that have not been designated as to series, for series of Preferred Stock and, with
respect to each series, to determine and fix the number of shares of such series and such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation
preferences, and to increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of
any series as shall be stated and expressed in such resolutions, all to the fullest extent now or hereafter permitted by the DGCL. Without
limiting the generality of the foregoing, the resolution or resolutions providing for the creation and issuance of any series of Preferred
Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent
permitted by law and this Amended and Restated Certificate of Incorporation (including any Certificate of Designation). Except as otherwise
required by law, holders of any series of Preferred Stock shall be entitled only to such voting rights, if any, as shall expressly be
granted thereto by this Amended and Restated Certificate of Incorporation (including any Certificate of Designation). Any shares of any
series of Preferred Stock purchased, exchanged, converted or otherwise acquired by the Corporation, in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock, without designation as to series, and may be reissued as part of any series of Preferred Stock created by resolution
or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth in this Amended and Restated
Certificate of Incorporation (including any Certificate of Designation) or in such resolution or resolutions.
3. Subject
to the rights of any holders of any outstanding series of Preferred Stock, the number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority
of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.
ARTICLE VI
For the management of the
business and for the conduct of the affairs of the Corporation it is further provided that:
A. Except
as otherwise expressly provided by the DGCL or this Amended and Restated Certificate of Incorporation, the business and affairs
of the Corporation shall be managed by or under the direction of the Board of Directors. The number of directors of the Corporation shall
be as from time to time fixed by, or in the manner provided in, the Amended and Restated Bylaws of the Corporation (as such Bylaws
may be amended from time to time, the “Bylaws”).
B. The
Board of Directors shall be divided into two classes, designated as Class I and Class II. Class I shall consist of independent
directors and Class II shall consist of non-independent directors. The initial term of office of the Class I directors shall
expire at the Corporation’s first annual meeting of stockholders following the closing of the Corporation’s initial public
offering pursuant to an effective registration statement under the Securities Act of 1933, as amended and as may be further amended from
time to time (the “Securities Act”), covering the offer and sale of Common Stock to the public (the “Initial Public
Offering Closing”) or until a director’s earlier death, resignation or removal and the initial term of office of the Class II
directors shall expire at the Corporation’s second annual meeting of stockholders following the Initial Public Offering Closing
or until a director’s earlier death, resignation or removal. No decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director. No person entitled to vote at an election for directors may cumulate votes to which
such person is entitled.
C. Subject
to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the Board of Directors
or any individual director may be removed from the Board of Directors at any time, but only for cause and only by the affirmative vote
of the holders of at least two-thirds (66 and 2/3%) of the voting power of all of the then outstanding shares of voting stock of the
Corporation entitled to vote at an election of directors. As used in this paragraph C of Article VI, the term “for cause”
shall mean (i) the director’s conviction (treating a nolo contendere plea as a conviction) of a crime involving (a) moral
turpitude, (b) a violation of federal or state securities laws, but specifically excluding any conviction based entirely on vicarious
liability or (c) any other illegal act that materially and adversely reflects upon the business, affairs or reputation of the Corporation
or on one’s ability to perform one’s duties to the Corporation; (ii) the director’s commission of any material
act of dishonesty resulting or intended to result in material personal gain or enrichment of such director at the expense of the Corporation
or any of its subsidiaries; (iii) the director’s fraud or intentional misrepresentation, including falsifying use of funds
and intentional misstatements made in financial statements, books, records or reports to stockholders or governmental agencies; (iv) the
director’s material violation of any agreement between the director and the Corporation; (v) the director’s knowingly
causing the Corporation to commit violations of applicable law (including by failure to act), (vi) willful and continued material
failure, refusal or inability to perform one’s duties to the Corporation or the willful engaging in gross misconduct materially
and demonstrably damaging to the Corporation or (vii) the director being adjudged legally incompetent by a court of competent jurisdiction.
D. Subject
to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, except as otherwise provided
by law, any vacancies on the Board of Directors resulting from death, resignation, disqualification, retirement, removal or other causes
and any newly created directorships resulting from any increase in the number of directors shall be filled exclusively by the affirmative
vote of a majority of the directors then in office, even if less than a quorum, or by a sole remaining director (other than any directors
elected by the separate vote of one or more outstanding series of Preferred Stock), and shall not be filled by the stockholders. Any
director appointed in accordance with the preceding sentence shall hold office until the expiration of the term to which such director
shall have been appointed or until his or her earlier death, resignation, retirement, disqualification, or removal.
E. Whenever
the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series
or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, removal and other features of such directorships shall be governed by the terms of this Amended and
Restated Certificate of Incorporation (including any Certificate of Designation) and the Bylaws. Notwithstanding anything to the contrary
in this Article VI, the number of directors that may be elected by the holders of any such series of Preferred Stock shall be in
addition to the number fixed pursuant to paragraph A of this Article VI, and the total number of directors constituting the whole
Board of Directors shall be automatically adjusted accordingly. Except as otherwise provided in the Certificate of Designation(s) in
respect of one or more series of Preferred Stock, whenever the holders of any series of Preferred Stock having such right to elect additional
directors are divested of such right pursuant to the provisions of such Certificate of Designation(s), the terms of office of all such
additional directors elected by the holders of such series of Preferred Stock, or elected to fill any vacancies resulting from the death,
resignation, disqualification or removal of such additional directors, shall forthwith terminate (in which case each such director thereupon
shall cease to be qualified as, and shall cease to be, a director) and the total authorized number of directors of the Corporation shall
automatically be reduced accordingly.
F. Any
increase in the number of securities authorized under the Corporation’s 2024 Equity Incentive Plan, as such plan may be amended
or restated from time to time, shall require the approval of the Board of Directors.
G. In
furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend
or repeal the Bylaws, subject to the power of the stockholders of the Corporation entitled to vote with respect thereto to adopt, amend
or repeal the Bylaws. In addition to any vote of the holders of any class or series of stock of the Corporation required by applicable
law or by this Amended and Restated Certificate of Incorporation (including any Certificate of Designation) or the Bylaws, the
adoption, amendment or repeal of the Bylaws by the stockholders of the Corporation shall require the affirmative vote of the holders
of at least two-thirds (66 and 2/3%) of the voting power of all of the then outstanding shares of voting stock of the Corporation entitled
to vote with respect thereto.
H. The
directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.
ARTICLE VII
A. Any
action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the
stockholders of the Corporation, and shall not be taken by written consent in lieu of a meeting. Notwithstanding the foregoing, any action
required or permitted to be taken by the holders of any series of Preferred Stock, voting separately as a series or separately as a class
with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly
so provided by the applicable Certificate of Designation relating to such series of Preferred Stock, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding shares of the relevant series of Preferred Stock having
not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled
to vote thereon were present and voted and shall be delivered to the Corporation in accordance with the applicable provisions of the
DGCL.
B. Subject
to the special rights of the holders of one or more series of Preferred Stock, and to the requirements of applicable law, special meetings
of the stockholders of the Corporation may be called for any purpose or purposes, at any time only by a majority of the Board of Directors,
the Chairperson of the Board of Directors, the Chief Executive Officer, the President or stockholders collectively holding more than
30% of the voting securities of the Corporation, in accordance with the Bylaws, and shall not be called by any other person or persons.
Any such special meeting so called may be postponed, rescheduled or cancelled by the Board of Directors or other person calling the meeting.
C. Advance
notice of stockholder nominations for the election of directors and of other business proposed to be brought by stockholders before any
meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws. Any business transacted at any special
meeting of stockholders shall be limited to matters relating to the purpose or purposes identified in the notice of meeting.
ARTICLE VIII
No director of the Corporation
shall have any personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL or other applicable law as the
same exists or hereafter may be amended. Any amendment, repeal or modification of this Article VIII, or the adoption of any provision
of this Amended and Restated Certificate of Incorporation inconsistent with this Article VIII, shall not adversely affect
any right or protection of a director of the Corporation with respect to any act or omission occurring prior to such amendment, repeal,
modification or adoption. If the DGCL or other applicable law is amended after approval by the stockholders of this Article VIII
to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of
the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL or other applicable law as so amended.
ARTICLE IX
A. The
Corporation shall indemnify, to the fullest extent authorized or permitted by applicable law, including Section 145 of the DGCL,
as now or hereafter in effect, any person who is made or threatened to be made a party to or is otherwise involved (as a witness or otherwise)
in any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (hereinafter,
a “proceeding”), by reason of the fact that such person is or was a director or officer of the Corporation, against expenses
(including attorneys’ fees), judgments, fines (including ERISA excise taxes or penalties) and amounts paid in settlement actually
and reasonably incurred by him or her in connection with such proceeding if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was unlawful, and such right to indemnification shall continue as to a person who has
ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and
legal representatives; provided, however, that, except for proceedings to enforce rights to indemnification, the Corporation shall not
be obligated to indemnify (or advance expenses to) any director or officer (or his or her heirs, executors or personal or legal representatives)
in connection with a proceeding (or part thereof) initiated by such person or in defending any counterclaim, cross-claim, affirmative
defense, or like claim by the Corporation in such a proceeding unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors. The right to indemnification conferred by this Article IX shall include the right to be paid by the Corporation
the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition upon receipt by the
Corporation of an undertaking by or on behalf of the director or officer receiving advancement to repay the amount advanced if it shall
ultimately be determined that such person is not entitled to be indemnified by the Corporation under this Article IX. The Corporation
may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred in this Article IX to directors and officers of the
Corporation. The rights to indemnification and to the advancement of expenses conferred in this Article IX shall not be exclusive
of any other right which any person may have or hereafter acquire under this Amended and Restated Certificate of Incorporation,
the Bylaws, any statute, agreement, vote of stockholders or disinterested directors or otherwise. Notwithstanding the foregoing provisions
of this Article IX, no indemnification nor advancement of expenses will extend to any claims made by the Corporation’s officers
and directors to cover any loss that such individuals may sustain as a result of such individuals’ agreement to pay debts and obligations
to target businesses or vendors or other entities that are owed money by the Corporation for services rendered or contracted for or products
sold to the Corporation. Any repeal or modification of this Article IX by the stockholders of the Corporation shall not adversely
affect any rights to indemnification and to the advancement of expenses of a director or officer of the Corporation (collectively, the
“Covered Persons”) existing at the time of such repeal or modification with respect to any acts or omissions occurring
prior to such repeal or modification.
B. The
Corporation hereby acknowledges that certain Covered Persons may have rights to indemnification and advancement of expenses (directly
or through insurance obtained by any such entity) provided by one or more third parties (collectively, the “Other Indemnitors”),
and which may include third parties for whom such Covered Person serves as a manager, member, officer, employee or agent. The Corporation
hereby agrees and acknowledges that notwithstanding any such rights that a Covered Person may have with respect to any Other Indemnitor(s),
(i) the Corporation is the indemnitor of first resort with respect to all Covered Persons and all obligations to indemnify and provide
advancement of expenses to Covered Persons, (ii) the Corporation shall be required to indemnify and advance the full amount of expenses
incurred by the Covered Persons, to the fullest extent required by law, the terms of this Amended and Restated Certificate of
Incorporation, the Bylaws, any agreement to which the Corporation is a party, any vote of the stockholders or the Board of Directors,
or otherwise, without regard to any rights the Covered Persons may have against the Other Indemnitors and (iii) to the fullest extent
permitted by law, the Corporation irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims for contribution,
subrogation or any other recovery of any kind in respect thereof. The Corporation further agrees that no advancement or payment by the
Other Indemnitors with respect to any claim for which the Covered Persons have sought indemnification from the Corporation shall affect
the foregoing, and the Other Indemnitors shall have a right of contribution and/or subrogation to the extent of any such advancement
or payment to all of the rights of recovery of the Covered Persons against the Corporation. These rights shall be a contract right, and
the Other Indemnitors are express third party beneficiaries of the terms of this paragraph. Notwithstanding anything to the contrary
herein, the obligations of the Corporation under this paragraph shall only apply to Covered Persons in their capacity as Covered Persons.
ARTICLE X
A. Unless
the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery (the “Chancery Court”)
of the State of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District
of Delaware or other state courts of the State of Delaware) and any appellate court thereof (the “Chosen Courts”)
shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action, suit or proceeding
brought on behalf of the Corporation, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by
any director, officer, employee, agent or stockholder of the Corporation to the Corporation or to the Corporation’s stockholders,
(iii) any action, suit or proceeding arising pursuant to any provision of the DGCL, the Bylaws or this Amended and Restated
Certificate of Incorporation (as any of the foregoing may be amended from time to time), (iv) any action, suit or proceeding as
to which the DGCL confers jurisdiction on the Chancery Court, or (v) any action, suit or proceeding asserting a claim governed by
the internal affairs doctrine, including, without limitation, any action to interpret, apply, enforce or determine the validity of this Amended and Restated Certificate of Incorporation or the Bylaws. If any action, suit or proceeding the subject matter of which
is within the scope of the immediately preceding sentence is filed in a court other than the Chosen Courts (a “Foreign Action”)
in the name of any stockholder, such stockholder shall be deemed to have notice of and consented to (a) the personal jurisdiction
of the Chosen Courts in connection with any action brought in any such court to enforce the provisions of the immediately preceding sentence
and (b) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel
in the Foreign Action as agent for such stockholder.
B. Unless
the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the federal district
courts of the United States of America shall be the sole and exclusive forum for the resolution of any complaint asserting a cause of
action arising under the Securities Act.
C. Notwithstanding
the foregoing, the provisions of paragraph A of this Article X shall not apply to suits brought to enforce any liability or duty
created by the Securities Exchange Act of 1934 or any other claim over which the federal courts of the United States have exclusive jurisdiction.
D. Any
person or entity purchasing or otherwise acquiring or holding any interest in any security of the Corporation (including, but not limited
to, shares of capital stock of the Corporation) shall be deemed to have notice of and consented to the provisions of this Article X.
Failure to enforce the provisions contained in this Article X would cause the Corporation irreparable harm, and the Corporation
shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions.
ARTICLE XI
A. Except as otherwise provided in this Amended and Restated Certificate
of Incorporation, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated
Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein
are granted subject to this reservation. Notwithstanding anything contained in this Amended and Restated Certificate of Incorporation
to the contrary, in addition to any vote required by applicable law and any affirmative vote of the holders of any particular class or
series of capital stock of the Corporation required by law or by this Amended and Restated Certificate of Incorporation or any Certificate
of Designation filed with respect to a series of Preferred Stock, the following provisions in this Amended and Restated Certificate of
Incorporation may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith
may be adopted, only by the affirmative vote of the holders of at least two thirds (66 and 2/3%) of the total voting power of all the
then outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class: Part B of Article V,
Article VI, Article VII, Article VIII, Article IX, Article X and this Article XI; provided, that if at least two-thirds (66 and 2/3%)
of the Board of Directors has approved an amendment to any of the foregoing provisions, then only the affirmative vote of a majority of
the voting power of all of the then outstanding shares of stock of the Corporation entitled to vote thereon shall be required to amend
the foregoing provisions of the Amended and Restated Certificate of Incorporation.
B. If any provision or provisions of this Amended and Restated Certificate
of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the
validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended and
Restated Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Amended and Restated Certificate
of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal
or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby and (ii) to
the fullest extent permitted by applicable law, the provisions of this Amended and Restated Certificate of Incorporation (including, without
limitation, each such portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees
and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent
permitted by law.
* * * * *
Exhibit 3.2
Second Amended and Restated Bylaws
of
zSpace, Inc.
(a Delaware corporation)
Effective December 6, 2024
Table of Contents
Page
| Article I - Corporate Offices |
1 |
| |
|
|
| |
1.1 |
Registered Office |
1 |
| |
1.2 |
Other Offices |
1 |
| |
|
|
| Article II - Meetings of Stockholders |
1 |
| |
|
|
| |
2.1 |
Place of Meetings |
1 |
| |
2.2 |
Annual Meeting |
1 |
| |
2.3 |
Special Meeting |
1 |
| |
2.4 |
Notice of Business to be Brought before a Meeting |
2 |
| |
2.5 |
Notice of Nominations for Election to the Board of Directors |
5 |
| |
2.6 |
Additional Requirements for Valid Nomination of Candidates
to Serve as Director and, if Elected, to be Seated as Directors |
7 |
| |
2.7 |
Notice of Stockholders’ Meetings |
8 |
| |
2.8 |
Quorum |
9 |
| |
2.9 |
Adjourned Meeting; Notice |
9 |
| |
2.10 |
Conduct of Business |
9 |
| |
2.11 |
Voting |
10 |
| |
2.12 |
Record Date for Stockholder Meetings and Other Purposes |
10 |
| |
2.13 |
Proxies |
11 |
| |
2.14 |
List of Stockholders Entitled to Vote |
11 |
| |
2.15 |
Inspectors of Election |
11 |
| |
2.16 |
Delivery to the Corporation |
12 |
| |
|
|
| Article III - Directors |
12 |
| |
|
|
| |
3.1 |
Powers |
12 |
| |
3.2 |
Number of Directors |
12 |
| |
3.3 |
Chairperson of the Board; Vice Chairperson of the Board; Executive
Chairman |
13 |
| |
3.4 |
Election, Qualification and Term of Office of Directors |
13 |
| |
3.5 |
Resignation and Vacancies |
13 |
| |
3.6 |
Place of Meetings; Meetings by Telephone |
13 |
| |
3.7 |
Regular Meetings |
14 |
| |
3.8 |
Special Meetings; Notice |
14 |
| |
3.9 |
Quorum |
15 |
| |
3.10 |
Board Action without a Meeting |
15 |
| |
3.11 |
Fees and Compensation of Directors |
15 |
| |
|
|
| Article IV - Committees |
15 |
| |
|
|
| |
4.1 |
Committees of Directors |
15 |
| |
4.2 |
Subcommittees. |
16 |
| |
|
|
| Article V - Officers |
16 |
| |
|
|
| |
5.1 |
Officers |
16 |
| |
5.2 |
Appointment of Officers |
16 |
| |
5.3 |
Subordinate Officers |
16 |
Table of Contents
(continued)
Page
| |
5.4 |
Removal and Resignation of Officers |
17 |
| |
5.5 |
Vacancies in Offices |
17 |
| |
5.6 |
Representation of Shares of Other Corporations |
17 |
| |
5.7 |
Chief Executive Officer |
17 |
| |
5.8 |
Other Officers |
17 |
| |
5.9 |
Compensation |
18 |
| |
|
|
| Article VI - Records |
18 |
| |
|
|
| Article VII - General Matters |
18 |
| |
|
|
| |
7.1 |
Execution of Corporate Contracts and Instruments |
18 |
| |
7.2 |
Stock Certificates |
18 |
| |
7.3 |
Special Designation of Certificates |
19 |
| |
7.4 |
Lost Certificates |
19 |
| |
7.5 |
Shares Without Certificates |
19 |
| |
7.6 |
Construction; Definitions |
19 |
| |
7.7 |
Dividends |
19 |
| |
7.8 |
Fiscal Year |
20 |
| |
7.9 |
Seal |
20 |
| |
7.10 |
Transfer of Stock |
20 |
| |
7.11 |
Stock Transfer Agreements |
20 |
| |
7.12 |
Registered Stockholders |
20 |
| |
7.13 |
Waiver of Notice |
20 |
| |
7.14 |
Lock-up |
21 |
| |
|
|
| Article VIII - Notice |
21 |
| |
|
|
| |
8.1 |
Delivery of Notice; Notice by Electronic Transmission |
21 |
| |
|
|
| Article IX - Indemnification |
22 |
| |
|
|
| |
9.1 |
Power to Indemnify in Actions, Suits or Proceedings other than
Those by or in the Right of the Corporation |
22 |
| |
9.2 |
Power to Indemnify in Actions, Suits or Proceedings by or in
the Right of the Corporation |
22 |
| |
9.3 |
Authorization of Indemnification |
23 |
| |
9.4 |
Good Faith Defined |
23 |
| |
9.5 |
Indemnification by a Court |
23 |
| |
9.6 |
Expenses Payable in Advance |
24 |
| |
9.7 |
Nonexclusivity of Indemnification and Advancement of Expenses |
24 |
| |
9.8 |
Insurance |
24 |
| |
9.9 |
Certain Definitions |
24 |
| |
9.10 |
Survival of Indemnification and Advancement of Expenses |
25 |
| |
9.11 |
Limitation on Indemnification |
25 |
| |
9.12 |
Indemnification of Employees and Agents |
25 |
| |
9.13 |
Primacy of Indemnification |
25 |
| |
|
|
| Article X - Amendments |
25 |
| |
|
|
| Article XI - Definitions |
26 |
Second Amended and Restated
Bylaws
of
zSpace, Inc.
Article I - Corporate Offices
1.1 Registered
Office.
The address of the registered
office of zSpace, Inc. (the “Corporation”) in the State of Delaware, and the name of its registered agent at
such address, shall be as set forth in the Corporation’s certificate of incorporation, as the same may be amended and/or restated
from time to time (the “Certificate of Incorporation”).
1.2 Other
Offices.
The Corporation may have
additional offices and places of business at any place or places, within or outside the State of Delaware, as the Corporation’s
board of directors (the “Board”) may from time to time determine or as the affairs of the Corporation may require.
Article II - Meetings of Stockholders
2.1 Place
of Meetings.
Meetings of stockholders
shall be held at any place within or outside the State of Delaware, designated by the Board, provided that the Board may, in its sole
discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote
communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”).
In the absence of any such designation or determination, stockholders’ meetings shall be held at the Corporation’s principal
executive office.
2.2 Annual
Meeting.
The Board shall designate
the date and time of the annual meeting. At the annual meeting, directors shall be elected and other proper business properly brought
before the meeting in accordance with Section 2.4 of these bylaws may be transacted. The Board may postpone or reschedule any previously
scheduled annual meeting of stockholders.
2.3 Special
Meeting.
Subject to the rights of
the holders of any outstanding series of the preferred stock of the Corporation and to the requirements of applicable law, special meetings
of the stockholders for any purpose or purposes may be called, postponed, rescheduled or cancelled only by (i) the Board pursuant
to a resolution adopted by a majority of the Board, (ii) the Chairperson of the Board, (iii) the Chief Executive Officer, (iv) the
President or (v) stockholders collectively holding more than 30% of the voting securities of the Corporation. Special meetings shall
be held at such place, either within or without the State of Delaware, and at such time and on such date as shall be determined by the
Board and stated in the Corporation’s notice of the meeting, provided that 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 pursuant to Section 211(a)(2) of
the DGCL.
No business may be transacted
at any special meeting of stockholders other than the business specified in the notice of such meeting.
2.4 Notice
of Business to be Brought before a Meeting.
(i) At
an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting.
To be properly brought before an annual meeting, business (other than the nominations of persons for election to the Board) must constitute
a proper matter for stockholder action and must be (a) specified in a notice of meeting given by or at the direction of the Board
or any duly authorized committee thereof, (b) if not specified in a notice of meeting, otherwise brought before the meeting by the
Board or any duly authorized committee thereof, the Executive Chairman of the Board or Chairperson of the Board or (c) otherwise
properly brought before the meeting by a stockholder present in person who (A) (1) was a record owner of shares of the Corporation
both at the time of giving the notice provided for in this Section 2.4 and at the time of the meeting, (2) is entitled to vote
at the meeting, and (3) has complied with this Section 2.4 in all applicable respects or (B) properly made such proposal
in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder
(as so amended and inclusive of such rules and regulations, the “Exchange Act”). The foregoing clause (c) shall
be the exclusive means for a stockholder to propose business to be brought before an annual meeting of the stockholders. For purposes
of this Section 2.4, “present in person” shall mean that the stockholder proposing that the business be brought
before the annual meeting of the Corporation, or a qualified representative of such proposing stockholder, appear at such annual meeting.
A “qualified representative” of such proposing stockholder shall be a duly authorized officer, manager or partner
of such stockholder or any other person authorized by a writing executed by such stockholder or an electronic transmission delivered
by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders. Stockholders
seeking to nominate persons for election to the Board must comply with Section 2.5 and Section 2.6, and this Section 2.4
shall not be applicable to nominations except as expressly provided in Section 2.5 and Section 2.6.
(ii) Without
qualification, for business to be properly brought before an annual meeting by a stockholder, the stockholder must (a) provide Timely
Notice (as defined below) thereof in writing and in proper form to the Secretary of the Corporation and (b) provide any updates
or supplements to such notice at the times and in the forms required by this Section 2.4. To be timely, a stockholder’s notice
must be delivered to, or mailed and received at, the principal executive offices of the Corporation not less than the close of business
on the 90th day nor more than the opening of business on the 120th day prior to the one-year anniversary of the
immediately preceding year’s annual meeting of the stockholders; provided, however, that if the date of the annual meeting is more
than 30 days before or more than 60 days after such anniversary date, notice by the stockholder to be timely must be so delivered, or
mailed and received, not earlier than the close of business on the 120th day before the meeting and not later than the later
of (x) the close of business on the 90th day prior to such annual meeting or(y) the close of business on the 10th
day following the day on which public disclosure of the date of such annual meeting was first made by the Corporation (such notice
within such time periods, “Timely Notice”). In no event shall any adjournment or postponement of an annual meeting
or the announcement thereof commence a new time period (or extend any time period) for the giving of Timely Notice as described above.
(iii) To
be in proper form for purposes of this Section 2.4, a stockholder’s notice to the Secretary shall set forth:
(a) As
to each Proposing Person (as defined below), (1) the name and record address of such Proposing Person (including, if applicable,
the name and address that appear on the Corporation’s books and records) and the name and address of the beneficial owner, if any,
on whose behalf the proposal is made; and (2) the class or series and number of shares of the Corporation that are, directly or
indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Person,
except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of the Corporation
as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future (the disclosures to be made pursuant
to the foregoing clauses (1) and (2) are referred to as “Stockholder Information”);
(b) As
to each Proposing Person, (1) the full notional amount of any securities that, directly or indirectly, underlie any “derivative
security” (as such term is defined in Rule 16a-1(c) under the Exchange Act) that constitutes a “call equivalent
position” (as such term is defined in Rule 16a-1(b) under the Exchange Act) (“Synthetic Equity Position”)
and that is, directly or indirectly, held or maintained by such Proposing Person with respect to any shares of any class or series of
shares of the Corporation; provided that, for the purposes of the definition of “Synthetic Equity Position,” the term “derivative
security” shall also include any security or instrument that would not otherwise constitute a “derivative security”
as a result of any feature that would make any conversion, exercise or similar right or privilege of such security or instrument becoming
determinable only at some future date or upon the happening of a future occurrence, in which case the determination of the amount of
securities into which such security or instrument would be convertible or exercisable shall be made assuming that such security or instrument
is immediately convertible or exercisable at the time of such determination; and, provided, further, that any Proposing Person satisfying
the requirements of Rule 13d-1(b)(1) under the Exchange Act (other than a Proposing Person that so satisfies Rule 13d-1(b)(1) under
the Exchange Act solely by reason of Rule 13d-1(b)(1)(ii)(E)) shall not be deemed to hold or maintain the notional amount of any
securities that underlie a Synthetic Equity Position held by such Proposing Person as a hedge with respect to a bona fide derivatives
trade or position of such Proposing Person arising in the ordinary course of such Proposing Person’s business as a derivatives
dealer, (2) any rights to dividends on the shares of any class or series of shares of the Corporation owned beneficially by such
Proposing Person that are separated or separable from the underlying shares of the Corporation, (3) any material pending or threatened
legal proceeding in which such Proposing Person is a party or material participant involving the Corporation or any of its officers or
directors, or any affiliate of the Corporation, (4) any other material relationship between such Proposing Person, on the one hand,
and the Corporation, or any of its officers or directors, or any affiliate of the Corporation, on the other hand, (5) any direct
or indirect material interest in any material contract or agreement of such Proposing Person with the Corporation or any affiliate of
the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement), (6) a
representation that such Proposing Person is a holder of record of stock of the Corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting to propose such business, (7) a representation that such Proposing Person intends
or is part of a group which intends to deliver a proxy statement or form of proxy to holders of at least the percentage of the Corporation’s
outstanding capital stock required to approve or adopt the proposal or otherwise solicit proxies from stockholders in support of such
proposal and (8) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement
or other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the
business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (the disclosures to be made
pursuant to the foregoing clauses (1) through (8) are referred to as “Disclosable Interests”); provided,
however, that Disclosable Interests shall not include any such disclosures with respect to the ordinary course business activities of
any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder
directed to prepare and submit the notice required by these bylaws on behalf of a beneficial owner; and
(c) As
to each item of business that the Proposing Person proposes to bring before the annual meeting, (1) a brief description of the business
desired to be brought before the annual meeting, the reasons for conducting such business at the annual meeting and any material interest
in such business of each Proposing Person, (2) 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 of the Corporation, the language of the
proposed amendment), and (3) a reasonably detailed description of all agreements, arrangements and understandings (x) between
or among any of the Proposing Persons or (y) between or among any Proposing Person and any other record or beneficial holder(s) or
persons(s) who have a right to acquire beneficial ownership at any time in the future of the shares of any class or series of the
Corporation or any other person or entity (including their names) in connection with the proposal of such business by such stockholder;
and (4) any other information relating to such item of business that would be required to be disclosed in a proxy statement or other
filing required to be made in connection with solicitations of proxies in support of the business proposed to be brought before the meeting
pursuant to Section 14(a) of the Exchange Act; provided, however, that the disclosures required by this paragraph (c) shall
not include any disclosures with respect to any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person
solely as a result of being the stockholder directed to prepare and submit the notice required by these bylaws on behalf of a beneficial
owner.
For purposes of this Section 2.4,
the term “Proposing Person” shall mean (i) the stockholder providing the notice of business proposed to be brought
before an annual meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business
proposed to be brought before the annual meeting is made, and (iii) any participant (as defined in paragraphs (a)(ii)-(vi) of
Instruction 3 to Item 4 of Schedule 14A) with such stockholder in such solicitation.
(iv) A
Proposing Person shall update and supplement its notice to the Corporation of its intent to propose business at an annual meeting, if
necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.4 shall be true
and correct as of the record date for stockholders entitled to vote at the meeting and as of the date that is 10 business days prior
to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received
by, the Secretary at the principal executive offices of the Corporation not later than five business days after the record date for stockholders
entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date), and not later
than eight business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable,
on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and
supplement required to be made as of 10 business days prior to the meeting or any adjournment or postponement thereof). For the avoidance
of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these bylaws shall not
limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable
deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any
proposal or to submit any new proposal, including by changing or adding matters, business or resolutions proposed to be brought before
a meeting of the stockholders.
(v) Notwithstanding
anything in these bylaws to the contrary, no business shall be conducted at an annual meeting that is not properly brought before the
meeting in accordance with this Section 2.4. The presiding officer of the meeting shall, if the facts warrant, determine that the
business was not properly brought before the meeting in accordance with this Section 2.4, and if he or she should so determine,
he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Without
limiting the foregoing, in advance of any meeting of stockholders, the Board shall also have the power to determine whether any proposed
business was made in accordance with the provisions of this Section 2.4.
(vi) This
Section 2.4 is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders other
than any proposal made in accordance with Rule 14a-8 under the Exchange Act and included in the Corporation’s proxy statement.
In addition to the requirements of this Section 2.4 with respect to any business proposed to be brought before an annual meeting,
each Proposing Person shall comply with all applicable requirements of the Exchange Act with respect to any such business. Nothing in
this Section 2.4 shall be deemed to affect the rights of stockholders to request inclusion of proposals in the Corporation’s
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(vii) For
purposes of these bylaws, “public disclosure” shall mean disclosure in a press release reported by a national news
service, in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of
the Exchange Act or by such other means as is reasonably designed to inform the public or securityholders of the Corporation in general
of such information including, without limitation, posting on the Corporation’s investor relations website.
2.5 Notice
of Nominations for Election to the Board of Directors.
(i) Subject
in all respects to the provisions of the Certificate of Incorporation, nominations of any person for election to the Board at an annual
meeting or at a special meeting (but only if the election of directors is a matter specified in the notice of meeting given by or at
the direction of the person calling such special meeting) may be made at such meeting only (x) by or at the direction of the Board,
including by any committee or persons authorized to do so by the Board or these bylaws, or (y) by a stockholder present in person
(A) who was a record owner of shares of the Corporation both at the time of giving the notice provided for in this Section 2.5
and at the time of the meeting, (B) is entitled to vote at the meeting, and (C) has complied with this Section 2.5 and
Section 2.6 as to such notice and nomination. For purposes of this Section 2.5, “present in person” shall
mean that the stockholder proposing that the business be brought before the meeting of the Corporation, or a qualified representative
of such stockholder, appear at such meeting. A “qualified representative” of such proposing stockholder shall be a
duly authorized officer, manager or partner of such stockholder or any other person authorized by a writing executed by such stockholder
or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such
person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at
the meeting of stockholders. The foregoing clause (y) shall be the exclusive means for a stockholder to make any nomination of a
person or persons for election to the Board at an annual meeting or special meeting.
(ii) Without
qualification, for a stockholder to make any nomination of a person or persons for election to the Board at an annual meeting, the stockholder
must (1) provide Timely Notice (as defined in Section 2.4) thereof in writing and in proper form to the Secretary of the Corporation,
(2) provide the information, agreements and questionnaires with respect to such stockholder and its candidate for nomination as
required to be set forth by this Section 2.5 and Section 2.7 and (3) provide any updates or supplements to such notice
at the times and in the forms required by this Section 2.5 and Section 2.6.
(a) Without
qualification, if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person
calling a special meeting in accordance with the Certificate of Incorporation, then for a stockholder to make any nomination of a person
or persons for election to the Board at a special meeting, the stockholder must (1) provide timely notice thereof in writing and
in proper form to the Secretary of the Corporation at the principal executive offices of the Corporation, (2) provide the information
with respect to such stockholder and its candidate for nomination as required by this Section 2.5 and Section 2.6 and (3) provide
any updates or supplements to such notice at the times and in the forms required by this Section 2.5. To be timely, a stockholder’s
notice for nominations to be made at a special meeting must be delivered to, or mailed and received at, the principal executive offices
of the Corporation not earlier than the close of business on the 120th day prior to such special meeting and not later than
the later of (x) close of business on the 90th day prior to such special meeting or (y) the close of business on
the 10th day following the day on which public disclosure (as defined in Section 2.4) of the date of such special meeting
was first made.
(b) In
no event shall any adjournment or postponement of an annual meeting or special meeting or the announcement thereof commence a new time
period for the giving of a stockholder’s notice as described above.
(c) In
no event may a Nominating Person provide Timely Notice with respect to a greater number of director candidates than are subject to election
by shareholders at the applicable meeting. If the Corporation shall, subsequent to such notice, increase the number of directors subject
to election at the meeting, such notice as to any additional nominees shall be due on the later of (1) the conclusion of the time
period for Timely Notice, (2) the date set forth in Section 2.5(ii)(a), or (3) the tenth day following the date of public
disclosure (as defined in Section 2.4) of such increase.
(iii) To
be in proper form for purposes of this Section 2.5, a stockholder’s notice to the Secretary shall set forth:
(a) As
to each Nominating Person (as defined below), the Stockholder Information (as defined in Section 2.4(iii)(a), except that for purposes
of this Section 2.5 the term “Nominating Person” shall be substituted for the term “Proposing Person”
in all places it appears in Section 2.4(iii)(a));
(b) As
to each Nominating Person, any Disclosable Interests (as defined in Section 2.4(iii)(b), except that for purposes of this Section 2.5
the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places
it appears in Section 2.4(iii)(b) and the disclosure with respect to the business to be brought before the meeting in Section 2.4(iii)(b) shall
be made with respect to the election of directors at the meeting); and
(c) As
to each candidate whom a Nominating Person proposes to nominate for election as a director, (1) all information with respect to
such candidate for nomination that would be required to be set forth in a stockholder’s notice pursuant to this Section 2.5
and Section 2.6 if such candidate for nomination were a Nominating Person, (2) all information relating to such candidate for
nomination that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations
of proxies for election of directors in a contested election pursuant to Section 14(a) under the Exchange Act (including such
candidate’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), (3) a
description of any direct or indirect material interest in any material contract or agreement between or among any Nominating Person,
on the one hand, and each candidate for nomination or his or her respective associates or any other participants in such solicitation,
on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation
S-K if such Nominating Person were the “registrant” for purposes of such rule and the candidate for nomination were
a director or executive officer of such registrant (the disclosures to be made pursuant to the foregoing clauses (1) through (3) are
referred to as “Nominee Information”), and (4) a completed and signed questionnaire, representation and agreement
as provided in Section 2.6(i).
For purposes of this Section 2.5,
the term “Nominating Person” shall mean (i) the stockholder providing the notice of the nomination proposed to
be made at the meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the nomination
proposed to be made at the meeting is made, and (iii) any other participant in such solicitation.
(iv) A
stockholder providing notice of any nomination proposed to be made at a meeting shall further update and supplement such notice, if necessary,
so that the information provided or required to be provided in such notice pursuant to this Section 2.5 shall be true and correct
as of the record date for stockholders entitled to vote at the meeting and as of the date that is 10 business days prior to the meeting
or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary
at the principal executive offices of the Corporation not later than five business days after the record date for stockholders entitled
to vote at the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight
business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable,
on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and
supplement required to be made as of 10 business days prior to the meeting or any adjournment or postponement thereof). For the avoidance
of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of these bylaws shall not
limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder, extend any applicable
deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder to amend or update any
nomination or to submit any new nomination.
(v) In
addition to the requirements of this Section 2.5 with respect to any nomination proposed to be made at a meeting, each Nominating
Person shall comply with all applicable requirements of the Exchange Act with respect to any such nominations.
2.6 Additional
Requirements for Valid Nomination of Candidates to Serve as Director and, if Elected, to be Seated as Directors.
(i) To
be eligible to be a candidate for election as a director of the Corporation at an annual or special meeting, a candidate must be nominated
in the manner prescribed in Section 2.5 and the candidate for nomination, whether nominated by the Board or by a stockholder of
record, must have previously delivered (in accordance with the time period prescribed for delivery in a notice to such candidate given
by or on behalf of the Board) to the Secretary at the principal executive offices of the Corporation (a) a completed written questionnaire
(in a form provided by the Corporation) with respect to the background, qualifications, stock ownership and independence of such proposed
nominee, and such additional information with respect to such proposed nominee as would be required to be provided by the Corporation
pursuant to Schedule 14A if such proposed nominee were a participant in the solicitation of proxies by the Corporation in connection
with such annual or special meeting and (b) a written representation and agreement (in form provided by the Corporation) that such
candidate for nomination (A) is not and, if elected as a director during his or her term of office, will not become a party to (1) any
agreement, arrangement or understanding with, and has not given and will not give any commitment or assurance to, any person or entity
as to how such proposed nominee, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting
Commitment”) or (2) any Voting Commitment that could limit or interfere with such proposed nominee’s ability to
comply, if elected as a director of the Corporation, with such proposed nominee’s fiduciary duties under applicable law, (B) is
not, and will not become a party to, any agreement, arrangement or understanding with any person or entity other than the Corporation
with respect to any direct or indirect compensation or reimbursement for service as a director that has not been disclosed therein or
to the Corporation, (C) if elected as a director of the Corporation, will comply with all applicable corporate governance, conflict
of interest, confidentiality, stock ownership and trading and other policies and guidelines of the Corporation applicable to directors
and in effect during such person’s term in office as a director (and, if requested by any candidate for nomination, the Secretary
of the Corporation shall provide to such candidate for nomination all such policies and guidelines then in effect), (D) if elected
as director of the Corporation, intends to serve the entire term until the next meeting at which such candidate would face re-election
and (E) consents to being named as a nominee in the Corporation’s proxy statement pursuant to Rule 14a-4(d) under
the Exchange Act and any associated proxy card of the Corporation and agrees to serve if elected as a director.
(ii) The
Board may also require any proposed candidate for nomination as a Director to furnish such other information as may reasonably be requested
by the Board in writing prior to the meeting of stockholders at which such candidate’s nomination is to be acted upon in order
for the Board to determine the eligibility of such candidate for nomination to be an independent director of the Corporation in accordance
with the Corporation’s Corporate Governance Guidelines.
(iii) A
candidate for nomination as a director shall further update and supplement the materials delivered pursuant to this Section 2.6,
if necessary, so that the information provided or required to be provided pursuant to this Section 2.6 shall be true and correct
as of the record date for stockholders entitled to vote at the meeting and as of the date that is 10 business days prior to the meeting
or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary
at the principal executive offices of the Corporation (or any other office specified by the Corporation in any public announcement) not
later than five business days after the record date for stockholders entitled to vote at the meeting (in the case of the update and supplement
required to be made as of such record date), and not later than eight business days prior to the date for the meeting or, if practicable,
any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting
has been adjourned or postponed) (in the case of the update and supplement required to be made as of 10 business days prior to the meeting
or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this
paragraph or any other Section of these bylaws shall not limit the Corporation’s rights with respect to any deficiencies in
any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has
previously submitted notice hereunder to amend or update any proposal or to submit any new proposal, including by changing or adding
nominees, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
(iv) No
candidate shall be eligible for nomination as a director of the Corporation unless such candidate for nomination and the Nominating Person
seeking to place such candidate’s name in nomination has complied with Section 2.5 and this Section 2.6, as applicable.
The presiding officer at the meeting shall, if the facts warrant, determine that a nomination was not properly made in accordance with
Section 2.5 and this Section 2.6, and if he or she should so determine, he or she shall so declare such determination to the
meeting, the defective nomination shall be disregarded and any ballots cast for the candidate in question (but in the case of any form
of ballot listing other qualified nominees, only the ballots cast for the nominee in question) shall be void and of no force or effect.
(v) Notwithstanding
anything in these bylaws to the contrary, no candidate for nomination shall be eligible to be seated as a director of the Corporation
unless nominated and elected in accordance with Section 2.5 and this Section 2.6.
2.7 Notice
of Stockholders’ Meetings.
Unless otherwise provided
by law, the Certificate of Incorporation or these bylaws, the notice of any meeting of stockholders shall be sent or otherwise given
in accordance with Section 8.1 of these bylaws not less than 10 nor more than 60 days before the date of the meeting to each stockholder
entitled to vote at such meeting. The notice shall specify the place, if any, date and time of the meeting, the means of remote communication,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called.
2.8 Quorum.
Unless otherwise provided
by law, the Certificate of Incorporation or these bylaws, the holders of a majority in voting power of the stock issued and outstanding
and entitled to vote, present in person, or by remote communication, if applicable, or represented by proxy, shall constitute a quorum
for the transaction of business at all meetings of the stockholders. A quorum, once established at a meeting, shall not be broken by
the withdrawal of enough votes to leave less than a quorum. If, however, a quorum is not present or represented at any meeting of the
stockholders, then either (i) the person presiding over the meeting or (ii) a majority in voting power of the stockholders
entitled to vote at the meeting, present in person, or by remote communication, if applicable, or represented by proxy, shall have power
to recess the meeting or adjourn the meeting from time to time in the manner provided in Section 2.9 of these bylaws until a quorum
is present or represented. At any recessed or adjourned meeting at which a quorum is present or represented, any business may be transacted
that might have been transacted at the meeting as originally noticed.
2.9 Adjourned
Meeting; Notice.
When a meeting is adjourned
to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time, place,
if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present
in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At any adjourned meeting,
the Corporation may transact any business which 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 meeting as of the record date so fixed for notice of such adjourned meeting.
2.10 Conduct
of Business.
The date and time of the
opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting
by the person presiding over the meeting. The Board may adopt by resolution such rules and regulations for the conduct of the meeting
of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the
Board, the person presiding over any meeting of stockholders 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 (which need not be in writing) and to do all
such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations
or procedures, whether adopted by the Board or prescribed by the person presiding over the meeting, may include, without limitation,
the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for
maintaining order at the meeting and the safety of those present (including, without limitation, rules and procedures for removal
of disruptive persons from the meeting); (iii) limitations on attendance at or participation in the meeting to stockholders entitled
to vote at the meeting, their duly authorized and constituted proxies or such other persons as the person presiding over the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations
on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making
any other determinations that may be appropriate to the conduct of the meeting (including, without limitation, determinations with respect
to the administration and/or interpretation of any of the rules, regulations or procedures of the meeting, whether adopted by the Board
or prescribed by the person presiding over the meeting), shall, if the facts warrant, determine and declare to the meeting that a matter
of business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall
so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered.
Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of stockholders shall not be required
to be held in accordance with the rules of parliamentary procedure.
2.11 Voting.
Except as may be otherwise
provided in the Certificate of Incorporation or the DGCL, each stockholder shall be entitled to one vote for each share of capital stock
held by such stockholder.
Except as otherwise provided
in the Certificate of Incorporation, at all duly called or convened meetings of stockholders at which a quorum is present, for the election
of directors, a plurality of the votes cast shall be sufficient to elect a director. Except as otherwise provided in the Certificate
of Incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the Corporation, or applicable law
or pursuant to any regulation applicable to the Corporation or its securities, each other matter presented to the stockholders at a duly
called or convened meeting at which a quorum is present shall be decided by the affirmative vote of the holders of a majority in voting
power of the votes cast (excluding abstentions and broker non-votes) on such matter.
2.12 Record
Date for Stockholder Meetings and Other Purposes.
In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, 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, unless otherwise required by law, not be more than 60 days nor less than 10 days before the date
of such meeting. If the Board so fixes a date, 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 such record date, that a later date on or before the date of the meeting
shall be the date for making such determination. 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 the close of business on the day immediately preceding the day
on which notice is first given, or, if notice is waived, at the close of business on the day immediately 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 determination of 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 determination of stockholders entitled to vote in accordance herewith at the adjourned
meeting.
In order that the Corporation
may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange of capital stock, or for the purposes of any other lawful
action, 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, 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
thereto.
2.13 Proxies.
Each stockholder entitled
to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy authorized by an instrument
in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy
shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. The revocability of a proxy
that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A proxy may be in
the form of an electronic transmission that sets forth or is submitted with information from which it can be determined that the transmission
was authorized by the stockholder.
2.14 List
of Stockholders Entitled to Vote.
The Corporation shall prepare,
at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided,
however, that if the record date for determining the stockholders entitled to vote is less than 10 days before the date of the meeting,
the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The Corporation shall
not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting for a period of at least 10 days prior to the meeting: (i) 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 (ii) during ordinary business hours, at the Corporation’s principal executive office. 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. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is
present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of
any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting. Such list shall presumptively determine the identity of the stockholders
entitled to vote at the meeting and the number of shares held by each of them. Except as otherwise provided by law, the stock ledger
shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.14
or to vote in person or by proxy at any meeting of stockholders.
2.15 Inspectors
of Election.
Before any meeting of stockholders,
the Board may, and shall if required by law, appoint an inspector or inspectors of election to act at the meeting or its adjournment
and make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails
to act. If any person appointed as inspector or any alternate fails to appear or fails or refuses to act, then the person presiding over
the meeting shall appoint a person to fill that vacancy.
Such inspectors shall:
(i) determine
the number of shares outstanding and the voting power of each, the number of shares represented at the meeting and the validity of any
proxies and ballots;
(ii) count
all votes or ballots;
(iii) count
and tabulate all votes;
(iv) determine
and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspector(s); and
(v) certify
its or their determination of the number of shares represented at the meeting and its or their count of all votes and ballots.
Each inspector, before entering
upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspection with strict
impartiality and according to the best of such inspector’s ability. Any report or certificate made by the inspectors of election
is prima facie evidence of the facts stated therein. The inspectors of election may appoint such persons to assist them in performing
their duties as they determine. If there is more than one inspector, the report of a majority shall be the report of the inspectors.
2.16 Delivery
to the Corporation.
Whenever this Article II
requires one or more persons (including a record or beneficial owner of 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. For the avoidance
of doubt, the Corporation expressly opts out of Section 116 of the DGCL with respect to the delivery of information and documents
to the Corporation required by this Article II.
Article III - Directors
3.1 Powers.
Except as otherwise provided
by the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction
of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these bylaws required to be exercised or done by the stockholders.
3.2 Number
of Directors.
Subject to the Certificate
of Incorporation, the total number of directors constituting the Board shall initially be seven directors and shall be determined from
time to time by resolution adopted by at least a majority of the Board. No reduction of the authorized number of directors shall have
the effect of removing any director before that director’s term of office expires. Subject to the provisions set forth herein,
stockholders representing more than 35% of the voting securities of the Corporation shall be entitled to nominate two (2) persons
for election to the Board and stockholders representing 35% or less of the voting securities of the Corporation but more than 25% of
the voting securities of the Corporation shall be entitled to nominate one (1) person for election to the Board.
3.3 Chairperson
of the Board; Vice Chairperson of the Board; Executive Chairman.
The Board may appoint, in
its discretion, from its members a Chairperson of the Board and a Vice Chairperson of the Board, neither of whom need be an employee
or officer of the Corporation. The Board may appoint, in its discretion, from its members an Executive Chairman who shall not be an employee
or officer of the Corporation. If the Board appoints a Chairperson of the Board, such Chairperson shall perform such duties and possess
such powers as are assigned by the Board. If the Board appoints an Executive Chairman, the Executive Chairman shall be delegated the
primary responsibility for overseeing and advising the senior management of the Corporation and shall perform such other duties and possess
such powers as are assigned by the Board; provided that notwithstanding anything to the contrary herein, the Executive Chairman shall
not have charge over the non-delegable duties of the Board. If the Board appoints a Vice Chairperson of the Board, such Vice Chairperson
shall perform such duties and possess such powers as are assigned by the Board. Unless otherwise provided by the Board, the Chairman
of the Board or, in the Chairman’s absence, the Vice Chairman of the Board, if any, shall preside at all meetings of the Board.
3.4 Election,
Qualification and Term of Office of Directors.
Except as provided in Section 3.5
of these bylaws, and subject to the Certificate of Incorporation, each director, including a director elected to fill a vacancy or newly
created directorship, shall hold office until the expiration of the term of the class, if any, for which elected and until such director’s
successor is elected and qualified or until such director’s earlier death, resignation, disqualification, retirement or removal
in accordance with the Certificate of Incorporation and applicable law. Directors need not be stockholders. The Certificate of Incorporation
or these bylaws may prescribe qualifications for directors.
3.5 Resignation
and Vacancies.
Any director may resign at
any time upon notice given in writing or by electronic transmission to the Corporation. The resignation shall take effect at the time
specified therein or upon the happening of an event specified therein, and if no time or event is specified, at the time of its receipt.
When one or more directors so resigns and the resignation is effective at a future date or upon the happening of an event to occur on
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 as provided in Section 3.4.
Unless otherwise provided
in the Certificate of Incorporation or these bylaws, vacancies resulting from the death, resignation, disqualification, retirement or
removal of any director, and newly created directorships resulting from any increase in the authorized number of directors shall be filled
only by a majority of the directors then in office, even if less than a quorum, or by a sole remaining director.
3.6 Place
of Meetings; Meetings by Telephone.
The Board may hold meetings,
both regular and special, either within or outside the State of Delaware.
Unless otherwise restricted
by the Certificate of Incorporation or these bylaws, members of the Board, or any committee designated by the Board, may participate
in a meeting of the Board, or any committee, by means of conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation in a meeting pursuant to these bylaws shall constitute
presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting was not lawfully called or convened
3.7 Regular
Meetings.
Regularly scheduled, periodic
meetings of the Board may be held within or outside the State of Delaware and at such time and at such place as which 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 means of electronic transmission. No further
notice shall be required for regular meetings of the Board.
3.8 Special
Meetings; Notice.
Special meetings of the Board
for any purpose or purposes may be called at any time by the Chairperson of the Board, the Executive Chairman of the Board, the Chief
Executive Officer, a President, or the Secretary.
Notice of the time and place
of special meetings shall be:
(i) delivered
personally by hand, by courier or by telephone;
(ii) sent
by United States first-class mail, postage prepaid;
(iii) sent
by facsimile or electronic mail;
(iv) sent
by other means of electronic transmission; or
(v) sent
by a nationally recognized overnight delivery service,
directed to each director at that director’s
address, telephone number, facsimile number or electronic mail address, or other address for electronic transmission, as the case may
be, as shown on the Corporation’s records.
If the notice is (i) delivered
personally by hand, by courier or by telephone, (ii) sent by facsimile or electronic mail, or (iii) sent by other means of
electronic transmission, it shall be delivered or sent at least 24 hours before the time of the holding of the meeting. If the notice
is sent by a nationally recognized overnight delivery service, at least two days before the time of the holding of the meeting. If the
notice is sent by U.S. mail, it shall be deposited in the U.S. mail at least five days before the time of the holding of the meeting.
Except as may be otherwise expressly provided by applicable law, the Certificate of Incorporation, or these bylaws, the notice or the
waiver of notice need not specify the place of the meeting (if the meeting is to be held at the Corporation’s principal executive
office) nor the purpose of the meeting.
Any and all business that
may be transacted at a regular meeting of the Board may be transacted at a special meeting. A special meeting may be held at any time
without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 7.13.
3.9 Quorum.
At all meetings of the Board,
unless otherwise provided by the Certificate of Incorporation, a majority of the total number of directors shall constitute a quorum
for the transaction of business. The vote of a majority of the directors present at any meeting at which a quorum is present shall be
the act of the Board, except as may be otherwise specifically provided by statute, the Certificate of Incorporation or these bylaws.
If a quorum is not present at any meeting of the Board, then the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is present.
3.10 Board
Action without a Meeting.
Unless otherwise restricted
by the Certificate of Incorporation or these 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, the consent or consents relating thereto shall be filed with the minutes
of the proceedings of the Board, or the committee thereof, in the same paper or electronic form as the minutes are maintained. Such action
by written consent or consent by electronic transmission shall have the same force and effect as a unanimous vote of the Board.
3.11 Fees
and Compensation of Directors.
Unless otherwise restricted
by the Certificate of Incorporation or these bylaws, the Board shall have the authority to fix the compensation, including fees and reimbursement
of expenses, of directors for services to the Corporation in any capacity, subject to any applicable limit set forth in the Corporation’s
equity compensation plan as in effect from time to time.
Article IV - Committees
4.1 Committees
of Directors.
The Board may designate one
or more committees, each committee to consist of one or more of the directors of the Corporation and shall have the power at any time
to fill vacancies in, to change the membership of, or to dissolve any such 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. In the absence
or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting
in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board or
in these bylaws, 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. However, no such committee
shall have the power or authority to (i) approve or adopt, or recommend 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) adopt, amend
or repeal any bylaw of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when
required by the resolution designating such committee. Meetings and Actions of Committees.
Meetings and actions of committees
shall be governed by, and held and taken in accordance with, the provisions of:
(i) Section 3.6
(Place of Meetings; Meetings by Telephone);
(ii) Section 3.7
(Regular Meetings);
(iii) Section 3.8
(Special Meetings; Notice);
(iv) Section 3.10
(Board Action without a Meeting); and
(v) Section 7.13
(Waiver of Notice),
with such changes in the context of those bylaws
as are necessary to substitute the committee and its members for the Board and its members. However:
(i) the
time of regular meetings of committees may be determined either by resolution of the Board or by resolution of the committee;
(ii) special
meetings of committees may also be called by resolution of the Board or the chairperson of the applicable committee; and
(iii) the
Board may adopt rules for the governance of any committee to override the provisions that would otherwise apply to the committee
pursuant to this Section 4.2, provided that such rules do not violate the provisions of the Certificate of Incorporation or
applicable law.
4.2 Subcommittees.
Unless otherwise provided
in the Certificate of Incorporation, these bylaws, the resolutions of the Board designating the committee or the charter of such committee
adopted by the Board, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee,
and delegate to a subcommittee any or all of the powers and authority of the committee.
Article V - Officers
5.1 Officers.
The officers of the Corporation
shall include a Chief Executive Officer, one or more Presidents and a Secretary. The Corporation may also have, at the discretion of
the Board, a Chief Financial Officer, a Treasurer, one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant
Treasurers, one or more Assistant Secretaries, and any such other officers as may be appointed in accordance with the provisions of these
bylaws. Any number of offices may be held by the same person. No officer need be a stockholder or director of the Corporation.
5.2 Appointment
of Officers.
The Board shall appoint the
officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 of these
bylaws.
5.3 Subordinate
Officers.
The Board may appoint, or
empower the Chief Executive Officer or, in the absence of a Chief Executive Officer, a President, to appoint, such other officers and
agents as the business of the Corporation may require. Each of such officers and agents shall hold office for such period, have such
authority, and perform such duties as are provided in these bylaws or as the Board may from time to time determine.
5.4 Removal
and Resignation of Officers.
Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board or, except
in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board.
Any officer may resign at
any time by giving written notice to the Corporation. Any resignation shall take effect at the date of the receipt of that notice or
at any later time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any
contract to which the officer is a party.
5.5 Vacancies
in Offices.
Any vacancy occurring in
any office of the Corporation shall be filled as provided in Section 5.2 or Section 5.3, as applicable.
5.6 Representation
of Shares of Other Corporations.
The Chairperson of the Board,
the Chief Executive Officer or a President of this Corporation, or any other person authorized by the Board, the Chief Executive Officer
or a President, is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares
or voting securities of any other corporation or other person standing in the name of this Corporation. The authority granted herein
may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed
by such person having the authority.
5.7 Chief
Executive Officer.
The Chief Executive Officer
shall, subject to the provisions of these bylaws, any employment agreement, any employee plan and the control of the Board, have general
supervision, direction and control over the business of the Corporation and over its officers, employees and agents and shall have full
authority to execute all documents and take all actions that the Corporation may legally take. The Chief Executive Officer shall perform
all duties incident to the office of the Chief Executive Officer, and any other duties as may be from time to time assigned to the Chief
Executive Officer by the Board, in each case subject to the control of the Board.
5.8 Other
Officers.
All officers of the Corporation
shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be provided
herein or designated from time to time by the Board and, to the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board.
5.9 Compensation.
The compensation of the officers
of the Corporation for their services as such shall be fixed from time to time by or at the direction of the Board. An officer of the
Corporation shall not be prevented from receiving compensation by reason of the fact that he or she is also a director of the Corporation.
Article VI - Records
A stock ledger consisting
of one or more records in which the names of all of the Corporation’s stockholders of record, the address and number of shares
registered in the name of each such stockholder, and all issuances and transfers of stock of the Corporation shall be recorded in accordance
with Section 224 of the DGCL and shall be administered by or on behalf of the Corporation. Any records administered by or on behalf
of the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept
on, or by means of, or be in the form of, any information storage device, or method, or one or more electronic networks or databases
(including one or more distributed electronic networks or databases), provided that the records so kept can be converted into clearly
legible paper form within a reasonable time and, with respect to the stock ledger, that the records so kept (i) can be used to prepare
the list of stockholders specified in Sections 219 and 220 of the DGCL, (ii) record the information specified in Sections 156, 159,
217(a) and 218 of the DGCL, and (iii) record transfers of stock as governed by Article 8 of the Uniform Commercial Code
as adopted in the State of Delaware.
Article VII - General Matters
7.1 Execution
of Corporate Contracts and Instruments.
The Board, except as otherwise
provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances.
7.2 Stock
Certificates.
The
shares of the Corporation shall be represented by certificates, provided that the Board by resolution may provide that some or all of
the shares of any class or series of stock of the Corporation shall be uncertificated. Certificates
for the shares of stock, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law.
Every holder of stock represented by a certificate shall be entitled to have a certificate signed by, or
in the name of the Corporation by, any two officers authorized to sign stock certificates representing the number of shares registered
in certificate form. The Executive Chairman, Chairperson or Vice Chairperson of the Board, Chief Executive Officer, a President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Corporation shall be specifically authorized to sign
stock certificates. Any or all of the signatures on the certificate may be a facsimile or other electronic means. In case any officer,
transfer agent or registrar who has signed or whose facsimile or other electronic signature has been placed upon a certificate has ceased
to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the date of issue.
The Corporation may issue
the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon
the face or back of each stock certificate issued to represent any such partly paid shares, or upon the books and records of the Corporation
in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon
shall be stated. Upon the declaration of any dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid
shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
7.3 Special
Designation of Certificates.
If the Corporation is authorized
to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences and the
relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or on the back of the certificate
that the Corporation shall issue to represent such class or series of stock (or, in the case of uncertificated shares, set forth in a
notice provided pursuant to Section 151 of the DGCL); provided, however, that except as otherwise provided in Section 202 of
the DGCL, in lieu of the foregoing requirements, there may be set forth on the face of back of the certificate that the Corporation shall
issue to represent such class or series of stock (or, in the case of any uncertificated shares, included in the aforementioned notice)
a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences
and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights.
7.4 Lost
Certificates.
Except as provided in this
Section 7.4, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered
to the Corporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificated shares in the
place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the
owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient
to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate
or the issuance of such new certificate or uncertificated shares.
7.5 Shares
Without Certificates
The Corporation may adopt
a system of issuance, recordation and transfer of its shares of stock by electronic or other means not involving the issuance of certificates,
provided the use of such system by the Corporation is permitted in accordance with applicable law.
7.6 Construction;
Definitions.
Unless the context requires
otherwise, the general provisions, rules of construction and definitions in the DGCL shall govern the construction of these bylaws.
Without limiting the generality of this provision, the singular number includes the plural and the plural number includes the singular.
7.7 Dividends.
The Board, subject to any
restrictions contained in either (i) the DGCL or (ii) the Certificate of Incorporation, may declare and pay dividends upon
the shares of its capital stock. Dividends may be paid in cash, in property or in shares of the Corporation’s capital stock.
The Board may set apart,
out of any of the funds of the Corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any
such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation,
and meeting contingencies.
7.8 Fiscal
Year.
The fiscal year of the Corporation
shall be the calendar year unless otherwise fixed by resolution of the Board, and may be changed by the Board.
7.9 Seal.
The Corporation may adopt
a corporate seal, which shall be adopted and which may be altered by the Board. The Corporation may use the corporate seal by causing
it or a facsimile or other electronic version thereof to be impressed or affixed or in any other manner reproduced.
7.10 Transfer
of Stock.
Shares of stock of the Corporation
shall be transferred on the books of the Corporation only by the holder of record thereof or by such holder’s attorney duly authorized
in writing, upon surrender to the Corporation of the certificate or certificates representing such shares endorsed by the appropriate
person or persons (or by delivery of duly executed instructions with respect to uncertificated shares), with such evidence of the authenticity
of such endorsement or execution, transfer, authorization and other matters as the Corporation may reasonably require, and accompanied
by all necessary stock transfer stamps. No transfer of stock shall be valid as against the Corporation for any purpose until it shall
have been entered in the stock records of the Corporation by an entry showing the names of the persons from and to whom it was transferred.
7.11 Stock
Transfer Agreements.
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 owned by such stockholders in any manner not
prohibited by the DGCL or other applicable law.
7.12 Registered
Stockholders.
The Corporation:
(i) 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
(ii) shall
not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether
or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
7.13 Waiver
of Notice.
Whenever notice is required
to be given under any provision of the DGCL, the Certificate of Incorporation or these 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 of the
event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or convened. All such waivers shall be kept with the books
of the Corporation. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders
need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the Certificate of Incorporation
or these bylaws.
7.14 Compliance
with the DGCL.
In the event any provision
hereof conflicts with the DGCL or any other applicable law, such provision shall be deemed modified, consistent with the aforementioned
intent, to the extent necessary to resolve such conflict.
Article VIII - Notice
8.1 Delivery
of Notice; Notice by Electronic Transmission.
Without limiting the manner
by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provisions
of the DGCL, the Certificate of Incorporation, or these bylaws may be given in writing directed to the stockholder’s mailing address
(or by electronic transmission directed to the stockholder’s electronic mail address, as applicable) as it appears on the records
of the Corporation and shall be given (1) if mailed, when the notice is deposited in the U.S. mail, postage prepaid, (2) if
delivered by courier service, the earlier of when the notice is received or left at such stockholder’s address or (3) if given
by electronic mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the Corporation
in writing or by electronic transmission of an objection to receiving notice by electronic mail. A notice by electronic mail must include
a prominent legend that the communication is an important notice regarding the Corporation.
Without limiting the manner
by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision
of the DGCL, the Certificate of Incorporation or these bylaws shall be effective if given by a form of electronic transmission consented
to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice or electronic
transmission to the Corporation. Notwithstanding the provisions of this paragraph, the Corporation may give a notice by electronic mail
in accordance with the first paragraph of this section without obtaining the consent required by this paragraph.
Any notice given pursuant
to the preceding paragraph shall be deemed given:
(i) if
by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;
(ii) if
by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and
(iii) if
by any other form of electronic transmission, when directed to the stockholder.
Notwithstanding
the foregoing, a notice may not be given by an electronic transmission (including electronic mail)
from and after the time that (1) the Corporation is unable to deliver by such electronic transmission two consecutive notices given
by the Corporation and (2) such inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the
transfer agent, or other person responsible for the giving of notice, provided, however, the inadvertent failure to discover such inability
shall not invalidate any meeting or other action.
An affidavit of the Secretary
or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given shall, in the absence
of fraud, be prima facie evidence of the facts stated therein.
Article IX
- Indemnification
9.1 Power
to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation.
Subject to Section 9.3
and Section 9.11, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to or is
otherwise involved (as a witness or otherwise) in any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that such person
is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the
Corporation as a director, officer, employee or agent of another enterprise, against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding
if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that such person’s conduct was unlawful.
9.2 Power
to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation.
Subject to Section 9.3
and Section 9.11, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to or is
otherwise involved (as a witness or otherwise) in any threatened, pending or completed action or suit by or in the right of the Corporation
to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or is or
was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another
enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court
of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity
by the Corporation for such expenses which the Court of Chancery or such other court shall deem proper.
9.3 Authorization
of Indemnification.
Any indemnification under
this Article IX (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination
that indemnification of the present or former director or officer is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 9.1 or Section 9.2, as the case may be. Such determination shall be made, with respect
to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated
by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors
so direct, by independent legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with
respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation.
To the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith,
without the necessity of authorization in the specific case.
9.4 Good
Faith Defined.
For purposes of any determination
under Section 9.3, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in
or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable
cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or another enterprise
in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Corporation or another enterprise. The provisions of this Section 9.4 shall not be deemed
to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct
set forth in Section 9.1 or 9.2, as the case may be.
9.5 Indemnification
by a Court.
Notwithstanding any contrary
determination in the specific case under Section 9.3, and notwithstanding the absence of any determination thereunder, any director
or officer may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware
for indemnification to the extent otherwise permissible under Section 9.1 or 9.2; provided, that if no determination has been made
pursuant to Section 9.3, no such application shall be permitted unless and until thirty (30) days shall have elapsed from the date
such director or officer shall have notified the Corporation in writing requesting such determination. The basis of such indemnification
by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because
such person has met the applicable standard of conduct set forth in Section 9.1 or Section 9.2, as the case may be. Neither
a contrary determination in the specific case under Section 9.3 nor the absence of any determination thereunder shall be a defense
to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard
of conduct. Notice of any application for indemnification pursuant to this Article IX shall be given to the Corporation promptly
upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.
9.6 Expenses
Payable in Advance.
Subject to Section 9.11,
expenses (including without limitation attorneys’ fees) incurred by a current or former director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding to which such person is a party or is threatened to be made a party
or otherwise involved as a witness or otherwise by reason of the fact that such person is or was a director or officer of the Corporation
or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee
or agent of another enterprise, shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such current or former director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article IX.
9.7 Nonexclusivity
of Indemnification and Advancement of Expenses.
The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article IX shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, these bylaws, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action
on another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in
Section 9.1 or 9.2 shall be made to the fullest extent permitted by law. The provisions of this Article IX shall not be deemed
to preclude the indemnification of any person who is not specified in Section 9.1 or Section 9.2 but whom the Corporation has
the power or obligation to indemnify under the provisions of the DGCL, or otherwise.
9.8 Insurance.
The Corporation may purchase
and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer
of the Corporation 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 against any liability asserted against such person and incurred by such
person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power
or the obligation to indemnify such person against such liability under the provisions of this Article IX.
9.9 Certain
Definitions.
For purposes of this Article IX,
references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had
power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent
corporation, or is or was a director or officer of such constituent corporation 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,
shall stand in the same position under the provisions of this Article IX 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. The term “another
enterprise” as used in this Article IX shall mean any other corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee
or agent. For purposes of this Article IX, references to “fines” shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any
service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director
or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article IX.
9.10 Survival
of Indemnification and Advancement of Expenses.
The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article IX shall, unless otherwise provided when authorized or ratified, continue
as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of
such a person.
9.11 Limitation
on Indemnification.
Notwithstanding anything
contained in this Article IX to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed
by Section 9.5) or advancement of expenses (which shall be governed by Section 9.6), the Corporation shall not be obligated
to indemnify any current or former director or officer (or his or her heirs, executors or personal or legal representatives) or advance
expenses in connection with a proceeding (or part thereof) initiated by such person or in defending any counterclaim, cross-claim, affirmative
defense, or like claim by the Corporation in such proceeding unless such proceeding (or part thereof) was authorized or consented to
by the Board of the Corporation.
9.12 Indemnification
of Employees and Agents.
The Corporation may, to the
extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to employees and
agents of the Corporation similar to those conferred in this Article IX to directors and officers of the Corporation.
9.13 Primacy
of Indemnification.
Notwithstanding that a director
or officer (or, to the extent authorized pursuant to Section 9.12 from time to time, an employee or agent) of the Corporation (collectively,
the “Covered Persons”) may have certain rights to indemnification, advancement of expenses and/or insurance provided
by other persons (collectively, the “Other Indemnitors”), with respect to the rights to indemnification, advancement
of expenses and/or insurance set forth herein, the Corporation: (i) shall be the indemnitor of first resort (i.e., its obligations
to Covered Persons are primary and any obligation of the Other Indemnitors to advance expenses or to provide indemnification for the
same expenses or liabilities incurred by Covered Persons are secondary); and (ii) shall be required to advance the full amount of
expenses incurred by Covered Persons and shall be liable for the full amount of all liabilities, without regard to any rights Covered
Persons may have against any of the Other Indemnitors. No advancement or payment by the Other Indemnitors on behalf of Covered Persons
with respect to any claim for which Covered Persons have sought indemnification from the Corporation shall affect the immediately preceding
sentence, and the Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment
to all of the rights of recovery of Covered Persons against the Corporation. Notwithstanding anything to the contrary herein, the obligations
of the Corporation under this Section 9.13 shall only apply to Covered Persons in their capacity as Covered Persons.
Article X
- Amendments
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 such action by stockholders shall require, in addition to any other vote required
by the Certificate of Incorporation or applicable law, the affirmative vote of the holders of at least two-thirds of the voting power
of all the then-outstanding shares of voting stock of the Corporation with the power to vote, voting together as a single class.
Article XI - Definitions
As used in these bylaws,
unless the context otherwise requires, the following terms shall have the following meanings:
An “electronic transmission”
means any form of communication, not directly involving the physical transmission of paper, including the use of, or participation in,
one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record
that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
An “electronic mail”
means an electronic transmission directed to a unique electronic mail address (which electronic mail shall be deemed to include any files
attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer
or agent of the Corporation who is available to assist with accessing such files and information).
An “electronic mail
address” means a destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox (commonly
referred to as the “local part” of the address) and a reference to an internet domain (commonly referred to as the “domain
part” of the address), whether or not displayed, to which electronic mail can be sent or delivered.
The term “person”
means any individual, general partnership, limited partnership, limited liability company, corporation, trust, business trust, joint
stock company, joint venture, unincorporated association, cooperative or association or any other legal entity or organization of whatever
nature, and shall include any successor (by merger or otherwise) of such entity.
* * * * *
Adopted as of: December 6, 2024
Last amended as of: N/A
Exhibit 4.1
THE HOLDER OF THIS WARRANT BY ITS ACCEPTANCE
HEREOF, AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS WARRANT EXCEPT AS HEREIN PROVIDED AND THE HOLDER OF THIS WARRANT AGREES
THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING THE LATER
OF THE DATE THAT THE REGISTRATION STATEMENT (AS DEFINED BELOW) IS DECLARED EFFECTIVE BY THE SECURITIES AND EXCHANGE COMMISSION OR THE
COMMENCEMENT OF SALES OF THE OFFERING TO WHICH THIS WARRANT RELATES TO ANYONE OTHER THAN (I) AN UNDERWRITER OR A SELECTED DEALER
IN CONNECTION WITH THE OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF ANY SUCH UNDERWRITER OR SELECTED DEALER.
THIS PURCHASE WARRANT IS NOT EXERCISABLE PRIOR
TO {_____}, 202{5}1. VOID AFTER 11:59 P.M., EASTERN TIME, ON THE EXPIRATION DATE.
zSpace, INC.
Warrant
To Purchase Common Stock
Warrant No.: {__}
Number of Shares of Common Stock: {____}2
Date of Issuance: {____}, 20243 (“Issuance
Date”)
zSpace, Inc., a Delaware
corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Roth Capital Partners, LLC, the registered holder hereof
or its permitted assigns (the “Holder”), is entitled, upon the terms and subject to the conditions set forth below,
to purchase from the Company, at the Exercise Price (as defined below) then in effect, at any time or times on or after {____}, 202{5}4
(the “Initial Exercisability Date”), but not after 11:59 p.m., Eastern time, on the Expiration Date (as defined below),
up to {____} ({_________})5 fully paid non-assessable shares of Common Stock (as defined below), subject to adjustment as
provided herein (the “Warrant Shares”). Except as otherwise defined herein, capitalized terms in this Warrant to Purchase
Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, this “Warrant”),
shall have the meanings set forth in Section 16. This Warrant is one of the Representative’s Warrants issued pursuant to (i) that
certain Underwriting Agreement, dated as of [______], 2024, by and among the Company, Roth Capital Partners, LLC and Craig-Hallum Capital
Group LLC, as representatives of the underwriters named therein (the “Representatives”) (the “Underwriting
Agreement”), (ii) the Company’s Registration Statement on Form S-1 (File number 333-280427) (the “Registration
Statement”) and (iii) the Company’s prospectus dated [______], 2024 relating to the offering (the “Offering”)
of the securities referenced therein (the “Securities”).
1 Date that is 180 days from the Closing Date or the Option
Closing Date, as applicable.
2 Aggregate of 5.0% of the Firm Shares or Option Shares,
as applicable.
3 The Closing Date or the Option Closing Date, as applicable.
4 Date that is 180 days from the Closing Date or the Option
Closing Date, as applicable.
5 Aggregate of 5.0% of the Firm Shares or Option Shares,
as applicable.
1. EXERCISE
OF WARRANT.
(a) Mechanics
of Exercise. Upon the terms and subject to the conditions hereof (including, without limitation, the limitations set forth in Section 1(f)),
this Warrant may be exercised by the Holder at any time or times on or after the Initial Exercisability Date and prior to the Expiration
Date (as defined below), in whole or in part, by delivery (whether via facsimile, electronic mail or otherwise) of a written notice, in
the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election
to exercise this Warrant. Within one (1) Trading Day following the delivery of the Exercise Notice, the Holder shall make payment
to the Company of an amount equal to the Exercise Price in effect on the date of such exercise multiplied by the number of Warrant Shares
as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in cash by wire transfer of immediately
available funds (a “Cash Exercise”) or by notifying the Company that this Warrant is being exercised pursuant to a
Cashless Exercise (as defined in Section 1(d)). The Holder shall not be required to surrender this Warrant in order to effect an
exercise hereunder (until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in
full), nor shall any ink-original signature or medallion guarantee (or other type of guarantee or notarization) with respect to any Exercise
Notice be required. Execution and delivery of the Exercise Notice with respect to less than all of the Warrant Shares shall have the same
effect as cancellation of the this Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant
Shares and the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of
the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant
to the Company for cancellation within a reasonable time after such exercise, but in any event within five (5) Trading Days of the
date on which the final Notice of Exercise is delivered to the Company. On or before the first (1st) Trading Day following
the date on which the Holder has delivered the applicable Exercise Notice, the Company shall transmit by facsimile or electronic mail
an acknowledgment of confirmation of receipt of the Exercise Notice, in the form attached to the Exercise Notice, to the Holder and the
Company’s transfer agent (the “Transfer Agent”). So long as the Holder delivers the Aggregate Exercise Price
(or notice of a Cashless Exercise, if applicable) on or prior to the first (1st) Trading Day following the date on which the
Exercise Notice has been delivered to the Company, then on or prior to the earlier of (i) the first (1st) Trading Day
and (ii) the number of Trading Days comprising the Standard Settlement Period, in each case following the date on which the Exercise
Notice has been delivered to the Company, or, if the Holder does not deliver the Aggregate Exercise Price (or notice of a Cashless Exercise,
if applicable) on or prior to the first (1st) Trading Day following the date on which the Exercise Notice has been delivered
to the Company, then on or prior to the first (1st) Trading Day following the date on which the Aggregate Exercise Price (or
notice of a Cashless Exercise, if applicable) is delivered (such earlier date, or if later, the earliest day on which the Company is required
to deliver Warrant Shares pursuant to this Section 1(a), the “Share Delivery Date”), the Company shall (X) provided
that the Transfer Agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer
Program (the “FAST Program”), and as long as the certificates therefor are not required by this Warrant to bear a legend
regarding restriction on transferability, upon the request of the Holder, credit such aggregate number of Warrant Shares to which the
Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account with DTC through its Deposit
/ Withdrawal At Custodian system, or (Y) if the Transfer Agent is not participating in the FAST Program or if the certificates are
required by this Warrant to bear a legend regarding restriction on transferability, issue and dispatch by overnight courier to the address
as specified in the Exercise Notice, a certificate, registered in the Company’s share register in the name of the Holder or its
designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise. The Company shall be responsible
for all fees and expenses of the Transfer Agent and all fees and expenses with respect to the issuance of Warrant Shares via DTC, if any,
including without limitation for same day processing. Upon delivery of the Exercise Notice, the Holder shall be deemed for all corporate
purposes to have become the holder of record and beneficial owner of the Warrant Shares with respect to which this Warrant has been exercised
(including for purposes of Section 6 hereof), irrespective of the date such Warrant Shares are credited to the Holder’s DTC
account or the date of delivery of the certificates evidencing such Warrant Shares, as the case may be. If this Warrant is physically
delivered to the Company in connection with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented
by this Warrant submitted for exercise is greater than the number of Warrant Shares being acquired upon an exercise, then the Company
shall as soon as practicable and in no event later than three (3) Trading Days after any exercise and at its own expense, issue and
deliver to the Holder (or its designee) a new Warrant (in accordance with Section 7(d) of this Warrant) representing the right
to purchase the number of Warrant Shares issuable immediately prior to such exercise under this Warrant, less the number of Warrant Shares
with respect to which this Warrant has been and/or is exercised. No fractional Warrant Shares are to be issued upon the exercise of this
Warrant, but rather the number of Warrant Shares to be issued shall be rounded to the nearest whole number. The Company shall pay any
and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer
Agent) which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant. The Company’s
obligations to issue and deliver Warrant Shares in accordance with the terms and subject to the conditions hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof,
the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination; provided, however, that the Company shall not be required to deliver Warrant Shares with respect
to an exercise prior to the Holder’s delivery of the Aggregate Exercise Price (or notice of a Cashless Exercise, if applicable)
with respect to such exercise; and provided further, that the Company shall not be required to pay any tax which may be payable
in respect of any transfer involved in the registration of any certificates for Warrant Shares or Warrants in a name other than that of
the Holder or an affiliate thereof. The Holder shall be responsible for all other tax liability that may arise as a result of holding
or transferring this Warrant or receiving Warrant Shares upon exercise hereof.
(b) Exercise
Price. For purposes of this Warrant, “Exercise Price” means $[●]6
per share, subject to adjustment as provided herein.
(c) Company’s
Failure to Timely Deliver Securities. If the Company fails for any reason to deliver to the Holder a certificate for the number of
Warrant Shares to which the Holder is entitled and register such Warrant Shares on the Company’s share register or to credit the
Holder’s balance account with DTC for such number of Warrant Shares to which the Holder is entitled upon the Holder’s exercise
of this Warrant, subject to a Notice of Exercise by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated
damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the
date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such
liquidated damages begin to accrue) for each Trading Day after such Share Delivery Date until such Warrant Shares are delivered or Holder
rescinds such exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit
to the Holder the Warrant Shares in accordance with the provisions of Section 1(a) above pursuant to an exercise on or before
the Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise)
or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of
the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay
in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions,
if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant
Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which
the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion
of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed
rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with
its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000
to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase
obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000.
The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request
of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available
to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect
to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms
hereof. The Company’s current transfer agent participates in the FAST Program. In the event that the Company changes transfer agents
while this Warrant is outstanding, the Company shall use commercially reasonable efforts to select a transfer agent that participates
in the FAST Program. While this Warrant is outstanding, the Company shall request its transfer agent to participate in the FAST Program
with respect to this Warrant.
(d) Cashless
Exercise. Notwithstanding anything contained herein to the contrary, the Holder may, in its sole discretion, exercise this Warrant
in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment
of the Aggregate Exercise Price, elect instead to receive upon such exercise the “Net Number” of shares of Common Stock determined
according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) - (A
x C)
B
6 Note to Draft: 150% of the public offering price.
For purposes of the foregoing formula:
| A= | the total number of shares with respect to which this Warrant is then being exercised. |
| B= | the average of the Closing Sale Prices of the shares of Common Stock (as reported by Bloomberg) for five
consecutive Trading Days ending on the date immediately preceding the Exercise Date. |
| C= | the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise. |
If
Warrant Shares are issued in such a cashless exercise, the Company acknowledges and agrees that in accordance with Section 3(a)(9) of
the Securities Act of 1933, as amended, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised,
and the holding period of the Warrants being exercised may be tacked on to the holding period of the Warrant Shares. The Company agrees
not to take any position contrary to this Section 1(d). Except as expressly set forth
in Section 4 herein, nothing in this Warrant shall require the Company to effect cash settlement of this Warrant.
(e) Disputes.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares, the Company
shall promptly issue to the Holder the number of Warrant Shares that are not disputed and resolve such dispute in accordance with Section 11.
(f) Beneficial
Ownership. Notwithstanding anything to the contrary contained herein, the Holder shall not be entitled to receive shares of Common
Stock upon exercise this Warrant to the extent that after giving effect to such exercise, the Holder together with the other Attribution
Parties collectively would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the number of shares of
Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number
of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common
Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon exercise of this Warrant
with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which would
be issuable upon (A) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the Holder or any of the
other Attribution Parties and (B) exercise or conversion of the unexercised or unconverted portion of any other securities of the
Company (including, without limitation, any convertible notes or convertible preferred stock or warrants, including the other Warrants)
beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation
contained in this Section 1(f). For purposes of this Section 1(f), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), it being acknowledged
by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of
the 1934 Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the
limitation contained in this Section 1(f) applies, the determination of whether this Warrant is exercisable (in relation to
other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the Company shall have no obligation to verify or confirm the accuracy of such determination.
For purposes of this Warrant, in determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise
of this Warrant without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected
in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q and Current Reports on
Form 8-K or other public filing with the Securities and Exchange Commission (the “SEC”), as the case may be, (y) a
more recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent setting forth
the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives
an Exercise Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding
Share Number, the Company shall (i) notify the Holder in writing of the number of shares of Common Stock then outstanding and, to
the extent that such Exercise Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 1(f),
to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Warrant Shares to be purchased pursuant to
such Exercise Notice (the number of shares by which such purchase is reduced, the “Reduction Shares”) and (ii) as
soon as reasonably practicable, the Company shall return to the Holder any exercise price paid by the Holder for the Reduction Shares.
For any reason at any time, upon the written request of the Holder, the Company shall within two (2) Business Days confirm orally
and in writing or by electronic mail to such Holder the number of shares of Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company,
including this Warrant, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number
was reported. In the event that the issuance of Common Stock to the Holder upon exercise of this Warrant results in the Holder and the
other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding
shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which the Holder’s
and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”)
shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess
Shares. As soon as reasonably practicable after the issuance of the Excess Shares has been deemed null and void, the Company shall return
to the Holder the exercise price paid by the Holder for the Excess Shares. Upon delivery of a written notice to the Company, the Holder
may from time to time increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such
notice; provided that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st)
day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other
Attribution Parties and not to any other holder of Warrants that is not an Attribution Party of the Holder. For purposes of clarity, the
shares of Common Stock issuable pursuant to the terms of this Warrant in excess of the Maximum Percentage shall not be deemed to be beneficially
owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No
prior inability to exercise this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions of this
paragraph with respect to any subsequent determination of exercisability. The provisions of this paragraph shall not be construed and
implemented in a manner otherwise than in strict conformity with the terms of this Section 1(f) to the extent necessary to correct
this paragraph or any portion of this paragraph which may be defective or inconsistent with the intended beneficial ownership limitation
contained in this Section 1(f) or to make changes or supplements necessary or desirable to properly give effect to such limitation.
The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Warrant.
(g) Required
Reserve Amount. So long as this Warrant remains outstanding, the Company shall at all times keep reserved for issuance under this
Warrant a number of shares of Common Stock at least equal to 100% of the maximum number of shares of Common Stock as shall be necessary
to satisfy the Company’s obligation to issue shares of Common Stock under the Warrants then outstanding (without regard to any limitations
on exercise) (the “Required Reserve Amount”); provided that at no time shall the number of shares
of Common Stock reserved pursuant to this Section 1(g) be reduced other than in connection with any exercise of Warrants or
such other event covered by Section 2 below. The Required Reserve Amount (including, without limitation, each increase in the number
of shares so reserved) shall be allocated pro rata among the holders of the Warrants based on the number of shares of Common Stock issuable
upon exercise of Warrants held by each holder thereof on the Issuance Date (without regard to any limitations on exercise) (the “Authorized
Share Allocation”). In the event that a holder shall sell or otherwise transfer any of such holder’s Warrants, each transferee
shall be allocated a pro rata portion of such holder’s Authorized Share Allocation. Any shares of Common Stock reserved and allocated
to any Person which ceases to hold any Warrants shall be allocated to the remaining holders of Warrants, pro rata based on the number
of shares of Common Stock issuable upon exercise of the Warrants then held by such holders thereof (without regard to any limitations
on exercise).
(h) Insufficient
Authorized Shares. If at any time while this Warrant remains outstanding the Company does not have a sufficient number of authorized
and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance the Required Reserve Amount (an “Authorized
Share Failure”), then the Company shall promptly take all action reasonably necessary to increase the Company’s authorized
shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for this Warrant then outstanding.
Without limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share
Failure, but in no event later than ninety (90) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting
of its stockholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting,
the Company shall provide each stockholder with a proxy statement and shall use its reasonable best efforts to solicit its stockholders’
approval of such increase in authorized shares of Common Stock and to cause its board of directors to recommend to the stockholders that
they approve such proposal. Notwithstanding the foregoing, if any such time of an Authorized Share Failure, the Company is able to obtain
the written consent of a majority of the shares of its issued and outstanding shares of Common Stock to approve the increase in the number
of authorized shares of Common Stock, the Company may satisfy this obligation by obtaining such consent and submitting for filing with
the SEC an Information Statement on Schedule 14C.
(i) Warrant
Redemption. The Company may not call or redeem any portion of this Warrant without the prior written consent of the Holder.
2. ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price and the number of Warrant Shares shall be adjusted from time to
time as follows:
(a) Adjustment
upon Subdivision or Combination of Common Stock. If the Company at any time on or after the Issuance Date subdivides (by any stock
split, stock dividend, recapitalization, reorganization, scheme, arrangement or otherwise) one or more classes of its outstanding shares
of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision will be proportionately
reduced and the number of Warrant Shares will be proportionately increased. If the Company at any time on or after the Issuance Date combines
(by combination, reverse stock split, recapitalization, reorganization, scheme or otherwise) one or more classes of its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price in effect immediately prior to such combination will be proportionately
increased and the number of Warrant Shares will be proportionately decreased. Any adjustment under this Section 2(a) shall become
effective at the close of business on the date the subdivision or combination becomes effective.
(b) Voluntary
Adjustment by Company. The Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount
and for any period of time deemed appropriate by the Board of Directors of the Company.
(c) Purchase
Rights. In addition to any adjustments pursuant to those described in paragraphs (a) and (b) of this Section 2 above,
if at any time prior to the Expiration Date the Company grants, issues or sells any Options, Convertible Securities or rights to purchase
stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock (the “Purchase Rights”),
then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the
Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant
(without regard to any limitations on the exercise of this Warrant) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are
to be determined for the grant, issue or sale of such Purchase Rights.
(d) Other
Events. If any event occurs of the type contemplated by the provisions of this Section 2 but not expressly provided for by such
provisions (including, without limitation, the granting of stock appreciation rights or phantom stock rights), then the Company’s
Board of Directors will make an appropriate adjustment in the Exercise Price and the number of Warrant Shares so as to protect the rights
of the Holder; provided that no such adjustment pursuant to this Section 2(d) will increase the Exercise Price or decrease the
number of Warrant Shares as otherwise determined pursuant to this Section 2.
3. RIGHTS
UPON DISTRIBUTION OF ASSETS. If the Company, at any time while this Warrant is outstanding, shall distribute to all holders of Common
Stock (and not to the Holders) evidences of its indebtedness or assets (including cash and cash dividends) or rights or warrants to subscribe
for or purchase any security (including, without limitation, any distribution of cash, stock or other securities, property or options
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction), then in
each such case the Exercise Price shall be adjusted by multiplying the Exercise Price in effect immediately prior to the record date fixed
for determination of stockholders entitled to receive such distribution by a fraction of which the denominator shall be the Weighted Average
Price determined as of the record date mentioned above, and of which the numerator shall be such Weighted Average Price on such record
date less the then per share fair market value at such record date of the portion of such assets or evidence of indebtedness so distributed
applicable to one outstanding share of Common Stock as determined by the Board of Directors in good faith. In either case, the adjustments
shall be described in a statement provided to the Holder of the portion of assets or evidences of indebtedness so distributed or such
subscription rights applicable to one share of Common Stock. Such adjustment shall be made whenever any such distribution is made to the
holders of Common Stock and shall become effective immediately after the record date mentioned above.
4. FUNDAMENTAL
TRANSACTIONS. The Company shall not enter into or be party to a Fundamental Transaction unless the Successor Entity assumes in writing
(unless the Company is the Successor Entity) all of the obligations of the Company under this Warrant in accordance with the provisions
of this Section 4 pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the
Holder prior to such Fundamental Transaction, including agreements to deliver to the Holder in exchange for this Warrant a security of
the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant, including, without
limitation, which is exercisable for a corresponding number of shares of capital stock equivalent to the shares of Common Stock acquirable
and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental
Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account
the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock,
such adjustments to the number of shares of capital stock and such exercise price being for the purpose of protecting the economic value
of this Warrant immediately prior to the consummation of such Fundamental Transaction). Notwithstanding the foregoing, in the event of
an all-cash sale of the Company, at the Company’s option, the Company or the Successor Entity shall have the right to purchase
this Warrant from the Holder by paying to the Holder on the effective date of the Fundamental Transaction, cash in an amount equal to
the Black-Scholes Value of the remaining unexercised portion of this Warrant on the date of such Fundamental Transaction. Except in the
case of the purchase of this Warrant pursuant to the terms of the immediately preceding sentence, upon the consummation of each Fundamental
Transaction, the Successor Entity shall succeed to, and be substituted for the Company (so that from and after the date of the applicable
Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. Notwithstanding
the foregoing, and without limiting Section 1(f) hereof, the Holder may elect, at its sole option, by delivery of a signed
written notice to the Company to waive this Section 4 to permit the Fundamental Transaction without the assumption of this Warrant.
In addition to and not in substitution for any other rights hereunder, prior to the consummation of each Fundamental Transaction pursuant
to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or in exchange for shares
of Common Stock (a “Corporate Event”), the Company shall make appropriate provision to ensure that the Holder will
thereafter have the right to receive upon an exercise of this Warrant at any time after the consummation of the applicable Fundamental
Transaction but prior to the Expiration Date, in lieu of the shares of the Common Stock (or other securities, cash, assets or other property
(except such items still issuable under Sections 3 and 4 above, which shall continue to be receivable thereafter)) issuable upon the
exercise of the Warrant prior to such Fundamental Transaction, such shares of stock, securities, cash, assets or any other property whatsoever
(including warrants or other purchase or subscription rights) which the Holder would have been entitled to receive upon the happening
of the applicable Fundamental Transaction had this Warrant been exercised immediately prior to the applicable Fundamental Transaction
(without regard to any limitations on the exercise of this Warrant). The provision made pursuant to the preceding sentence shall be in
a form and substance reasonably satisfactory to the Holder. The provisions of this Section 4 shall apply similarly and equally
to successive Fundamental Transactions and Corporate Events.
5. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation or bylaws, or through
any reorganization, transfer of assets, consolidation, merger, scheme, arrangement, dissolution, issuance or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times
in good faith carry out all of the provisions of this Warrant and take all action as may be required to protect the rights of the Holder
and consistent with effectuating the purposes of this Warrant. Without limiting the generality of the foregoing, the Company (i) shall
not increase the par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in
effect, (ii) shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock, not subject to preemptive rights of any shareholder, upon the exercise of this Warrant,
and (iii) shall, so long as any of the Warrants are outstanding, take all action necessary to reserve and keep available out of
its authorized and unissued shares of Common Stock, solely for the purpose of effecting the exercise of the Warrants, the number of shares
of Common Stock as shall from time to time be necessary to effect the exercise of the Warrants then outstanding (without regard to any
limitations on exercise).
6. WARRANT
HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely in such Person’s capacity
as a holder of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of capital stock of the Company
for any purpose, nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in such Person’s capacity
as the Holder of this Warrant, any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any
corporate action (whether any reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise),
receive notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant
Shares which such Person is then entitled to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant
shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise)
or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company. Notwithstanding
this Section 6, the Company shall provide the Holder with copies of the same notices and other information given to the stockholders
of the Company generally, contemporaneously with the giving thereof to the stockholders; provided that the failure to deliver such notice
or any defect therein or in the delivery thereof shall not affect the validity of any corporate action required to be specified in such
notice.
7. REISSUANCE
OF WARRANTS.
(a) Transfer
of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company and deliver a completed and
executed form or assignment, substantially in the form of the Assignment Form attached hereto as Exhibit B, whereupon
the Company will forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered
as the Holder may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less
than the total number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d))
to the Holder representing the right to purchase the number of Warrant Shares not being transferred. The acceptance of the new Warrant
by the transferee thereof shall be deemed the acceptance by such transferee of all of the rights and obligations in respect of the new
Warrant that the Holder has in respect of this Warrant.
(b) Lost,
Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the
Company in customary form (but without the obligation to post a bond) and, in the case of mutilation, upon surrender and cancellation
of this Warrant, the Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 7(d)) representing
the right to purchase the Warrant Shares then underlying this Warrant.
(c) Exchangeable
for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company,
for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of
Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant
Shares as is designated by the Holder at the time of such surrender.
(d) Issuance
of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall
be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the
Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c),
the Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock underlying the other new Warrants
issued in connection with such issuance, do not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have
an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same
rights and conditions as this Warrant.
8. NOTICES.
Whenever notice is required to be given under this Warrant, including, without limitation, an Exercise Notice, unless otherwise provided
herein, such notice shall be given in writing, (i) if delivered (a) from within the domestic United States, by first-class
registered or certified airmail, or nationally recognized overnight express courier, postage prepaid, electronic mail or by facsimile
or (b) from outside the United States, by International Federal Express, electronic mail or facsimile, and (ii) will be deemed
given (A) if delivered by first-class registered or certified mail domestic, three (3) Business Days after so mailed, (B) if
delivered by nationally recognized overnight carrier, one (1) Business Day after so mailed, (C) if delivered by International
Federal Express, two (2) Business Days after so mailed, (D) at the time of transmission, if delivered by electronic mail
to the email address specified in this Section 8 prior to 5:00 p.m. (New York time) on a Trading Day, (E) the next
Trading Day after the date of transmission, if delivered by electronic mail to the email address specified in this Section 8 on
a day that is not a Trading Day or later than 5:00 p.m. (New York time) on any Trading Day and (F) if delivered by facsimile,
upon electronic confirmation of delivery of such facsimile, and will be delivered and addressed as follows:
(i) if
to the Company, to:
zSpace, Inc.
65 Nicholson Lane
San Jose, California 95134
Attention: Paul Kellenberger
Tel: (408) 498-4050
Fax: [_____]
with a copy to:
Pryor Cashman LLP
7 Times Square
New York, NY 10036
Attention: M. Ali Panjwani, Esq.
Tel: (212) 421-4100
Fax: (212) 326-0806
(ii) if
to the Holder, at such address or other contact information delivered by the Holder to Company or as is on the books and records of the
Company.
with a copy to:
Pillsbury Winthrop Shaw Pittman LLP
31 West 52nd Street
New York, New York 10019
Attn: Jonathan J. Russo, Esq.
Alexandra F. Calcado, Esq.
Tel: (212) 858-1000
Fax: (212) 858-1500
The Company shall provide the Holder with prompt
written notice of all actions taken pursuant to this Warrant, including in reasonable detail a description of such action and the reason
therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder (i) immediately upon
any adjustment of the Exercise Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at
least fifteen (15) days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend
or distribution upon the shares of Common Stock, (B) with respect to any grants, issuances or sales of any Options, Convertible Securities
or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock or (C) for
determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation; provided in each
case that such information shall be made known to the public prior to or in conjunction with such notice being provided to the Holder;
provided, further, that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity
of the corporate action required to be specified in such notice. It is expressly understood and agreed that the time of exercise specified
by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.
9. AMENDMENT
AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant may be amended or waived and the Company may take
any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the
prior written consent of the Holders of Warrants to purchase a majority of the Warrant Shares sold pursuant to the Registration Statement.
10. GOVERNING
LAW; JURISDICTION; JURY TRIAL. This Warrant shall be governed by and construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the
State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York.
The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York,
Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is improper. The Company hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof to the Company at the address set forth
in Section 8(i) above or such other address as the Company subsequently delivers to the Holder and agrees that such service
shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder
from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations
to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling
in favor of the Holder. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing
party in such action, suit or proceeding shall be promptly reimbursed by the other party for their reasonable attorneys’ fees and
other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. THE COMPANY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.
11. DISPUTE
RESOLUTION. In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the Warrant Shares,
the Company shall submit the disputed determinations or arithmetic calculations via facsimile or electronic mail within two (2) Business
Days of receipt of the Exercise Notice or other event giving rise to such dispute, as the case may be, to the Holder. If the Holder and
the Company are unable to agree upon such determination or calculation of the Exercise Price or the Warrant Shares within three (3) Business
Days of such disputed determination or arithmetic calculation being submitted to the Holder, then the Company shall, within two (2) Business
Days submit via facsimile or electronic mail (a) the disputed determination of the Exercise Price to an independent, reputable
investment bank selected by the Company in good faith by its Board of Directors and approved by the Holder or (b) the disputed
arithmetic calculation of the Warrant Shares to the an independent, nationally-recognized outside accountant that is not the Company’s
current independent auditor, selected by the Company in good faith by the Board of Directors. The Company shall cause at its expense
the investment bank or the accountant, as the case may be, to perform the determinations or calculations and notify the Company and the
Holder of the results no later than ten (10) Business Days from the time it receives the disputed determinations or calculations.
The prevailing party (which, for purposes of this Warrant, is the party whose determinations or calculations is closest to those of the
investment bank or the accountant, as the case may be) in any dispute resolved pursuant to this Section 11 shall be entitled to
the full amount of all reasonable expenses, including all costs and fees paid or incurred in good faith, in relation to the resolution
of such dispute. Such investment bank’s or accountant’s determination or calculation, as the case may be, shall be binding
upon all parties absent demonstrable error.
12. REMEDIES,
OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative and in addition to all
other remedies available under this Warrant, at law or in equity (including a decree of specific performance and/or other injunctive
relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure by the Company to comply with
the terms of this Warrant. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such
breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to seek an injunction restraining
any breach, without the necessity of showing economic loss and without any bond or other security being required.
13. TRANSFER.
The registered Holder of this Warrant agrees by his, her or its acceptance hereof, that such Holder will not: (a) sell, transfer,
assign, pledge or hypothecate this Warrant for a period of one hundred eighty (180) days following the later of the date that the Registration
Statement is declared effective by the SEC or the commencement of sales of the Offering (the later of such dates, the “Transferability
Date”) to anyone other than: (i) an underwriter or a selected dealer participating in the Offering, or (ii) a bona
fide officer or partner of any such underwriter or selected dealer, in each case in accordance with FINRA Conduct Rule 5110(e)(1),
or (b) cause this Warrant or the securities issuable hereunder to be the subject of any hedging, short sale, derivative, put or
call transaction that would result in the effective economic disposition of this Warrant or the securities hereunder, except as provided
for in FINRA Rule 5110(e)(2). On and after the Transferability Date, transfers to others may be made subject to compliance with
or exemptions from applicable securities laws. In order to make any permitted assignment, the Holder must deliver to the Company the
Assignment Form attached hereto as Exhibit B duly executed and completed, together with this Warrant. The Company
shall within three (3) Business Days transfer this Warrant on the books of the Company and shall execute and deliver a new Warrant
or Warrants of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number of shares
of Common Stock purchasable hereunder or such portion of such number as shall be contemplated by any such assignment in accordance with
Section 7 hereunder. In addition, notwithstanding the other terms of this Warrant or any agreement between the Company and the
Holder, the Holder agrees that, consistent with FINRA Rule 5110(g)(8): (i) this Warrant may not be exercised more than five
(5) years from the Issuance Date; (ii) this Warrant may not have anti-dilution terms that allow the Holder and related persons
to receive more shares or to exercise at a lower price than originally agreed upon at the time of the public offering, when the public
shareholders have not been proportionally affected by a stock split, stock dividend, or other similar event; and (iii) this Warrant
may not have anti-dilution terms that allow the Holder and related persons to receive or accrue cash dividends prior to the exercise
or conversion of this Warrant.
14. SEVERABILITY;
CONSTRUCTION; HEADINGS. If any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable
by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended
to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall
not affect the validity of the remaining provisions of this Warrant so long as this Warrant as so modified continues to express, without
material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties
or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes
as close as possible to that of the prohibited, invalid or unenforceable provision(s). This Warrant shall be deemed to be jointly drafted
by the Company and the Holder and shall not be construed against any Person as the drafter hereof. The headings of this Warrant are for
convenience of reference and shall not form part of, or affect the interpretation of, this Warrant.
15. DISCLOSURE.
Upon receipt or delivery by the Company of any notice in accordance with the terms of this Warrant, unless the Company has in good faith
determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its
subsidiaries, the Company shall contemporaneously with any such receipt or delivery publicly disclose such material, nonpublic information
on a Current Report on Form 8-K or otherwise. In the event that the Company believes that a notice contains material, nonpublic
information relating to the Company or its subsidiaries, the Company so shall indicate to such Holder contemporaneously with delivery
of such notice, and in the absence of any such indication, the Holder shall be allowed to presume that all matters relating to such notice
do not constitute material, nonpublic information relating to the Company or its subsidiaries.
16. CERTAIN
DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:
(a) “Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended.
(b) “Attribution
Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder
funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the Holder’s
investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing,
(iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any
other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated with the Holder’s and
the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to
subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.
(c) “Black-Scholes
Value” means the value of this Warrant calculated using the Black-Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg determined as of the day immediately following the public announcement of the applicable Fundamental Transaction,
or, if the Fundamental Transaction is not publicly announced, the date the Fundamental Transaction is consummated, for pricing purposes
and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of
this Warrant as of such date of request, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained
from the HVT function on Bloomberg as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction,
or, if the Fundamental Transaction is not publicly announced, the date the Fundamental Transaction is consummated, (iii) the underlying
price per share used in such calculation shall be the greater of (x) the highest Weighted Average Price of the Common Stock during
the period beginning on the Trading Day prior to the execution of definitive documentation relating to the applicable Fundamental Transaction
and ending on (A) the Trading Day immediately following the public announcement of such Fundamental Transaction, if the applicable
Fundamental Transaction is publicly announced or (B) the Trading Day immediately following the consummation of the applicable Fundamental
Transaction if the applicable Fundamental Transaction is not publicly announced and (y) the sum of the price per share being offered
in cash, if any, plus the value of any non-cash consideration, if any, being offered in the Fundamental Transaction, (iv) a zero
cost of borrow and (v) a 365 day annualization factor.
(d) “Bloomberg”
means Bloomberg Financial Markets.
(e) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law or executive order to remain closed; provided, however, for clarification, commercial banks shall not be deemed to
be authorized or required by law or executive order to close due to “stay at home”, “shelter-in-place”, “non-essential
employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental
entity so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in such location generally
are open for use by customers on such day.
(f) “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and
last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market
begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price, as the case may
be, then the last bid price or the last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported
by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing
bid price or last trade price, respectively, of such security on the principal securities exchange or trading market where such security
is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively,
of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no
closing bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the
ask prices, respectively, of any market makers for such security as reported in the OTC Link or “pink sheets” by OTC Markets
Group Inc. (formerly Pink OTC Markets Inc.). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on
a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale Price, as the case may be, of such security
on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable
to agree upon the fair market value of such security, then such dispute shall be resolved pursuant to Section 11. All such determinations
to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification or other similar transaction during
the applicable calculation period.
(g) “Common
Stock” means (i) the Company’s Common Stock, par value $0.00001 per share, and (ii) any capital stock into which
such Common Stock shall have been changed or any capital stock resulting from a reclassification of such Common Stock.
(h) “Convertible
Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable
for shares of Common Stock.
(i) “Eligible
Market” means The Nasdaq Capital Market, the NYSE American LLC, The Nasdaq Global Select Market, The Nasdaq Global Market or
The New York Stock Exchange, Inc.
(j) “Expiration
Date” means the five-year anniversary of the effective date of the Registration Statement for the offering, or, if such date
falls on a day other than a Trading Day or on which trading does not take place on the Principal Market, or, if the Principal Market is
not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common
Stock are then traded (a “Holiday”), the next date that is not a Holiday.
(k) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation)
another Subject Entity (but excluding a merger effected solely for the purpose of changing the jurisdiction of incorporation of the Company),
or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company
or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities,
or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its shares of Common
Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders
of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated
as if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party
to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject
Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become
collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares of Common
Stock, or (iv) consummate a stock purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually
or in the aggregate, acquire, either (x) at least 50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding
shares of Common Stock calculated as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated
with any Subject Entity making or party to, such stock purchase agreement or other business combination were not outstanding; or (z) such
number of shares of Common Stock such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3
under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its
shares of Common Stock, (B) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the
“beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition,
purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation,
business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification
or otherwise in any manner whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and
outstanding shares of Common Stock, (y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding
shares of Common Stock not held by all such Subject Entities as of the Issuance Date calculated as if any shares of Common Stock held
by all such Subject Entities were not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued
and outstanding shares of Common Stock or other equity securities of the Company sufficient to allow such Subject Entities to effect a
statutory short form merger or other transaction requiring other stockholders of the Company to surrender their Common Stock without approval
of the stockholders of the Company or (C) directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one
or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent,
or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this
definition which may be defective or inconsistent with the intended treatment of such instrument or transaction.
(l) “Group”
means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.
(m) “Options”
means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
(n) “Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person, including such entity whose
common stock or equivalent equity security is quoted or listed on an Eligible Market (or, if so elected by the Holder, any other market,
exchange or quotation system), or, if there is more than one such Person or such entity, the Person or such entity designated by the Holder
or in the absence of such designation, such Person or entity with the largest public market capitalization as of the date of consummation
of the Fundamental Transaction.
(o) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity and a government or any department or agency thereof.
(p) “Principal
Market” means The Nasdaq Capital Market.
(q) “Standard
Settlement Period” means the standard settlement period, expressed in a number of Trading Days, for the Company’s
primary trading market or quotation system with respect to the Common Stock that is in effect on the date of delivery of an applicable
Exercise Notice.
(r) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(s) “Successor
Entity” means one or more Person or Persons (or, if so elected by the Holder, the Company or Parent Entity) formed by, resulting
from or surviving any Fundamental Transaction or one or more Person or Persons (or, if so elected by the Holder, the Company or the Parent
Entity) with which such Fundamental Transaction shall have been entered into.
(t) “Trading
Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal
trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then
traded.
(u) “Weighted
Average Price” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal
Market during the period beginning at 9:30:01 a.m., New York time (or such other time as the Principal Market publicly announces is the
official open of trading), and ending at 4:00:00 p.m., New York time (or such other time as the Principal Market publicly announces is
the official close of trading), as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for
such security during the period beginning at 9:30:01 a.m., New York time (or such other time as such market publicly announces is the
official open of trading), and ending at 4:00:00 p.m., New York time (or such other time as such market publicly announces is the official
close of trading), as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg
for such hours, the average of the highest Closing Bid Price and the lowest closing ask price of any of the market makers for such security
as reported in the OTC Link or “pink sheets” by OTC Markets Group Inc. (formerly Pink OTC Markets Inc.). If the Weighted Average
Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Weighted Average Price of such security
on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable
to agree upon the fair market value of such security, then such dispute shall be resolved pursuant to Section 11 but with the term
“Weighted Average Price” being substituted for the term “Exercise Price.” All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination, reclassification or other similar transaction during the applicable calculation
period.
[Signature Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Warrant to Purchase Common Stock to be duly executed as of the Issuance Date
set out above.
ZSPACE, INC.
EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE
THIS
WARRANT TO PURCHASE COMMON STOCK
zSPACE, INC.
The undersigned holder hereby
exercises the right to purchase _________________ shares of Common Stock (“Warrant Shares”) of zSpace, Inc., a
Delaware corporation (the “Company”), evidenced by the attached Warrant to Purchase Common Stock (the “Warrant”).
Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
1. Form of Exercise Price.
The Holder intends that payment of the Exercise Price shall be made as:
____________ a “Cash Exercise” with
respect to _________________ Warrant Shares; and/or
____________ a “Cashless Exercise”
with respect to _______________ Warrant Shares.
2. Payment of Exercise Price.
In the event that the holder has elected a Cash Exercise with respect to some or all of the Warrant Shares to be issued pursuant hereto,
the holder shall pay the Aggregate Exercise Price in the sum of $___________________ to the Company in accordance with the terms of the
Warrant.
3.
Delivery of Warrant Shares. The Company shall deliver to the holder __________ Warrant Shares in accordance with the terms of the Warrant
and, after delivery of such Warrant Shares Warrant
shares remain subject to the Warrant.
Date: _______________ __, ______
________________________________
Name of Registered Holder
ACKNOWLEDGMENT
The
Company hereby acknowledges this Exercise Notice and hereby directs [__________]7
to issue the above indicated number of shares of Common Stock on or prior to the applicable Share Delivery Date.
ZSPACE, INC.
7 Name of transfer agent.
EXHIBIT B
ASSIGNMENT FORM
ZSPACE, INC.
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
(Please Print)
(Please Print)
Dated: _______________ __, ______
NOTE: The signature to this Assignment Form must
correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers
of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the
foregoing Warrant.
Exhibit 99.1
zSpace Announces Pricing of $9.4 Million Initial
Public Offering
San
Jose, CA, December 4, 2024 – zSpace, Inc. (“ZSPC” or the “Company”) today
announced the pricing of its firm commitment initial public offering of an aggregate of 1,875,000 shares of its Common Stock (the “Offering”)
at $5.00 per share.
The gross proceeds to ZSPC from the Offering,
before deducting underwriting discounts and commissions and estimated offering expenses payable by ZSPC, is expected to be approximately
$9.4 million without the exercise of the underwriters’ over-allotment option.
The shares are expected to begin trading on the
Nasdaq Global Market under the ticker symbol “ZSPC” at the open of the market on December 5, 2024. The Offering is expected
to close on December 6, 2024, subject to customary closing conditions.
In connection with the Offering, the Company has
granted the underwriters a 30-day option to purchase up to an additional 281,250 shares of its Common Stock at the initial public offering
price, less underwriting discounts and commissions.
Roth Capital Partners, LLC and Northland Securities, Inc.
are acting as joint book-running managers for the offering and Barrington Research Associates, Inc. is acting as co-manager. Pryor
Cashman LLP is acting as legal counsel to the Company, and Pillsbury Winthrop Shaw Pittman is acting as legal counsel to the underwriters
for the Offering.
The Company has also registered for resale by
two securityholders up to 1,997,973 shares of its Common Stock. The shares registered for resale will not be purchased by the underwriters
in the Offering and the Company will not receive any of the proceeds from the resale of such shares when and if such shares are sold by
the securityholders.
The
Offering is being conducted pursuant to the Company’s Registration Statement on Form S-1 (File No. 333-280427) initially
filed with the U.S. Securities and Exchange Commission (“SEC”) on June 24, 2024, as amended, and subsequently
declared effective by the SEC on December 4, 2024. The Offering is being made only by means of a preliminary prospectus. Before
you invest, you should read the preliminary prospectus and other documents the Company has filed or will file with the SEC for more information
about the Company and the Offering. You may get these documents for free by visiting EDGAR on the SEC Website at www.sec.gov.
Alternatively, electronic copies of the preliminary prospectus relating to the Offering may be obtained from Roth Capital Partners, LLC,
888 San Clemente Drive, Suite 400, Newport Beach, CA 92660 Attn: Prospectus Department, by phone: (800) 678-9147, or email at rothecm@roth.com.
In addition, a copy of the final prospectus, when available, relating to the Offering may be obtained via the SEC’s website at
www.sec.gov.
This press release has been prepared for informational
purposes only and shall not constitute an offer to sell or the solicitation of an offer to buy any securities, and no sale of these securities
may be made in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state or other jurisdiction.
About zSpace, Inc.
zSpace, Inc.
(NASDAQ: ZSPC) delivers innovative augmented and virtual reality (AR/VR) experiences for STEM, CTE, and career readiness programs. Used
by over 3,500 public school districts, technical centers, community colleges, and universities, zSpace allows students and teachers to
experience learning in the classroom that may otherwise be dangerous, impossible, counterproductive, or expensive using traditional techniques.
Headquartered in San Jose, California, zSpace holds over 70 patents and our hands-on “learning by doing” solutions have been
shown to enhance the learning process and drive higher student test scores, as evidenced by a study on the utility of 3D virtual reality
technologies for student knowledge gains published in the Journal of Computer Assisted Learning in 2021. For more information, please
visit www.zspace.com.
FORWARD-LOOKING STATEMENTS
Certain
statements contained in this press release about future expectations, plans and prospects, as well as any other statements regarding matters
that are not historical facts, may constitute “forward-looking statements” These statements include, but are not limited to,
statements relating to the expected trading commencement and closing dates. The words “anticipate,” “believe,”
“continue,” “could,” “estimate,” “expect,” “intend,”
“may,” “plan,” “potential,” “predict,” “project,” “should,” “target,”
“will,” “would” and similar expressions are intended to identify forward-looking statements, although not all
forward-looking statements contain these identifying words. Actual results may differ materially from those indicated by such forward-looking
statements as a result of various important factors, including: the uncertainties related to market conditions and the completion of the
public offering on the anticipated terms or at all, and other factors discussed in the “Risk Factors” section of the preliminary
prospectus filed with the SEC. For these reasons, among others, investors are cautioned not to place undue reliance upon any forward-looking
statements in this press release. Any forward-looking statements contained in this press release speak only as of the date hereof, and
zSpace, Inc. specifically disclaims any obligation to update any forward-looking statement, whether as a result of new information,
future events or otherwise, except as required by law.
Contacts
zSpace Investor Relations:
Cody Slach, Alex Thompson
Gateway Group, Inc.
1-949-574-3860
ZSPC@gateway-grp.com
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