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): March 21, 2023

PhenomeX Inc.
(Exact name of registrant as specified in its charter)


Delaware
 
001-39388
 
35-2415390
(State or other jurisdiction
 
(Commission File Number)
 
(IRS Employer
of incorporation)
     
Identification No.)

5858 Horton Street, Suite 320
Emeryville, CA
 
94608
(Address of principal executive offices)
 
(Zip Code)

Registrant’s telephone number, including area code: (520) 858-2855

Berkeley Lights, Inc.
(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:


Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class
 
Trading
Symbol(s)
 
Name of each exchange
on which registered
Common Stock, par value $0.00005 per share
 
BLI
 
The Nasdaq Global Select Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐



Introductory Note
 
This Current Report on Form 8-K is being filed in connection with the completion on March 21, 2023 (the “Closing Date”) of the transactions contemplated by the Agreement and Plan of Merger, dated as of December 21, 2022 (the “Merger Agreement”), by and among Berkeley Lights, Inc., a Delaware corporation (“Berkeley Lights”), Iceland Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Berkeley Lights (“Merger Sub”), and IsoPlexis Corporation, a Delaware corporation (“IsoPlexis”).  Pursuant to the Merger Agreement, on March 21, 2023, Merger Sub merged with and into IsoPlexis (the “Merger”), with IsoPlexis surviving the Merger as a wholly owned subsidiary of Berkeley Lights.  Following the effective time of the Merger (the “Effective Time”), Berkeley Lights changed its name to PhenomeX Inc. (“PhenomeX”).

Item 1.01
Entry into a Material Definitive Agreement
 
Credit Agreement with East West Bank
 
On March 21, 2023, PhenomeX entered into a Second Amended and Restated Loan and Security Agreement (the “PhenomeX Credit Agreement”) with East West Bank, a California banking corporation (“East West Bank”), as lender, and the other parties thereto, which amends and restates that certain Amended and Restated Loan and Security Agreement, dated as of June 30, 2022 (the “Existing Berkeley Lights Credit Agreement”), to (i) continue certain  existing term loan indebtedness under the Existing Berkeley Lights Credit Agreement, (ii) increase the term loan under the Existing Berkeley Lights Credit Agreement by $50 million, such that the aggregate outstanding principal amount of the term loan thereunder is  $70 million, and (iii) repay $50 million of indebtedness of IsoPlexis Corporation under that certain Credit Agreement and Guaranty, dated as of December 30, 2020 (as amended by that certain First Amendment to Credit Agreement and Guaranty, dated as of May 27, 2021, that certain Second Amendment to Credit Agreement and Guaranty, dated as of October 29, 2021, that certain Third Amendment to Credit Agreement and Guaranty, dated as of March 30, 2022, and that certain Fourth Amendment to Credit Agreement and Guaranty, dated as of December 28, 2022, the “IsoPlexis Credit Agreement”).
 
The Credit Agreement contains customary affirmative and negative covenants, including limitations on mergers, asset sales, liens, investments, and indebtedness.
 
The foregoing summary is not, and does not purport to be, a complete description of the PhenomeX Credit Agreement and is qualified in its entirety by reference to the terms therein, a copy of which is filed as Exhibit 10.1 and incorporated herein by reference.
 
Warrant Certificate
 
On March 21, 2023 and in connection with the closing of the Merger, PhenomeX, IsoPlexis and Perceptive Credit Holdings III, LP (“Perceptive”) executed a Warrant Certificate (the “Warrant Certificate”).  Under the Warrant Certificate, the outstanding warrant (the “IsoPlexis Warrant”) to purchase shares of common stock, par value $0.001, of IsoPlexis (“IsoPlexis Common Stock”), issued by IsoPlexis to Perceptive was assumed by PhenomeX and converted into a warrant (the “PhenomeX Warrant”) to purchase shares of common stock, par value $0.00005, of PhenomeX (“PhenomeX Common Stock”), on the same terms and subject to the same conditions as were applicable to the IsoPlexis Warrant as of immediately prior to the Effective Time; provided, that the PhenomeX Warrant is exercisable for 496,560 shares of PhenomeX Common Stock (i.e., a number of shares of PhenomeX Common Stock equal to the number of shares of IsoPlexis Common Stock that were subject to the IsoPlexis Warrant multiplied by the Exchange Ratio (as defined below)) and has an exercise price of $9.80 per share of PhenomeX Common Stock (i.e., the exercise price per share of IsoPlexis Common Stock that was applicable to the IsoPlexis Warrant divided by the Exchange Ratio).

The foregoing description of the Warrant Certificate does not purport to be complete and is qualified in its entirety by reference to the full text of the Warrant Certificate, a copy of which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.
 
Item 2.01.
Completion of Acquisition or Disposition of Assets.
 
The information set forth in the Introductory Note of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
 
Pursuant to the Merger Agreement, at the Effective Time, each share of IsoPlexis Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of IsoPlexis Common Stock owned (1) by IsoPlexis as treasury stock, (2) by Berkeley Lights (or PhenomeX as successor to Berkeley Lights) or Merger Sub (unless owned by Berkeley Lights (or PhenomeX as successor to Berkeley Lights) or Merger Sub in a fiduciary, representative or other capacity on behalf of other persons) or (3) by any wholly owned subsidiary of IsoPlexis or Berkeley Lights (or PhenomeX as successor to Berkeley Lights) (other than Merger Sub and unless held in a fiduciary, representative or other capacity on behalf of other persons)) was converted into the right to receive 0.6120 fully paid and nonassessable shares (the “Exchange Ratio”) of PhenomeX Common Stock (the “Merger Consideration”), together with cash in lieu of fractional shares of PhenomeX Common Stock, if any, and any unpaid dividends or other distributions.


At the Effective Time, (1) all outstanding IsoPlexis stock options (whether vested or unvested) held by continuing employees were (a) if the per-share exercise price is equal to or greater than the average closing trading price for a share of IsoPlexis Common Stock rounded to the nearest one-tenth of a cent, as reported on The Nasdaq Stock Market LLC for the five most recent trading days ending on and including the third business day prior to the Effective Time (the “Company Trading Price”), canceled for no consideration and (b) if the per-share exercise price is less than the Company Trading Price, converted into PhenomeX stock options of approximately equivalent value and generally on the same terms and conditions applicable immediately prior to the Effective Time, (2) all outstanding IsoPlexis stock options held by IsoPlexis service providers (other than continuing employees) that were (a) vested and unexercised or (b) would have vested solely as a result of the consummation of the Merger became, in each case, exercisable prior to the Effective Time and, to the extent unexercised at the Effective Time, were canceled for no consideration, and (3) all outstanding IsoPlexis restricted shares were converted into restricted shares of PhenomeX Common Stock generally on the same terms and conditions applicable immediately prior to the Effective Time.
 
Also at the Effective Time, as disclosed in Item 1.01 of this Current Report on Form 8-K, the IsoPlexis Warrant was assumed by PhenomeX and converted into the PhenomeX Warrant.
 
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
 
The Merger Agreement and the above description of the Merger Agreement have been included to provide investors with information regarding the terms of the Merger Agreement. It is not intended to provide any other factual information about PhenomeX, Berkeley Lights, IsoPlexis or their respective subsidiaries or affiliates.
 
Item 2.03.
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Credit Agreement is incorporated by reference into this Item 2.03.
 
Item 5.03.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
 
On the Closing Date, Berkeley Lights filed a Certificate of Amendment (the “Certificate of Amendment”) to its Amended and Restated Certificate of Incorporation. The Certificate of Amendment changes the Company’s name to “PhenomeX Inc.” (the “Name Change”).
 
In connection with the Name Change, the Company’s Amended and Restated Bylaws were amended and restated (the “A&R Bylaws”), effective on the Closing Date, solely to reflect the Name Change. The A&R Bylaws contain no other changes.
 
This summary is qualified by reference to the complete text of the Certificate of Amendment, attached as Exhibit 3.1 to this Current Report on Form 8-K, and the A&R Bylaws, attached as Exhibit 3.2 to this Current Report on Form 8-K.

Item 8.01
Other Events.

On March 21, 2023, PhenomeX issued a press release announcing completion of the Merger. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Item 9.01.
Financial Statements and Exhibits.
 
(a) Financial Statements of Business Acquired.
 
The audited consolidated financial statements of IsoPlexis as of and for the years ended December 31, 2022 and 2021 are incorporated by reference to Exhibit 99.2 of this Current Report on Form 8-K.


(b) Pro Forma Financial Information.
 
The pro forma financial information of PhenomeX required to be filed under Item 9.01 of Form 8-K is included in Berkeley Lights’ Current Report on Form 8-K as filed with the Securities and Exchange Commission (the “Commission”) on March 6, 2023.
 
(d) Exhibits.
 
Exhibit
No.
 
Description
   
 
Agreement and Plan of Merger, dated as of December 21, 2022, among IsoPlexis Corporation, Berkeley Lights, Inc. and Iceland Merger Sub Inc. (incorporated herein by reference to Exhibit 2.1 to Berkeley Lights’ Current Report on Form 8-K filed with the Commission on December 21, 2022).
   
 
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Berkeley Lights, Inc.
     
 
Amended and Restated Bylaws of PhenomeX Inc.
     
 
Second Amended and Restated Loan and Security Agreement, dated as of March 21, 2023, by and between East West Bank, Berkeley Lights, Inc. and IsoPlexis Corporation.
   
 
Warrant Certificate, dated as of March 21, 2023, by and between PhenomeX Inc., IsoPlexis Corporation and Perceptive Credit Holdings III, LP.
   
 
Consent of Deloitte and Touche LLP.
   
 
Press Release, dated as of March 21, 2023.
   
 
Audited consolidated financial statements of IsoPlexis Corporation as of and for the years ended December 31, 2022 and 2021 (incorporated by reference to Part II, Item 8 of IsoPlexis’ Annual Report on Form 10-K, filed with the Commission on March 2, 2023).
   
104
 
Cover Page Interactive Data File (formatted as inline XBRL document)


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: March 21, 2023
PhenomeX Inc.
     
 
By:
/s/ Scott Chaplin
   
Name: Scott Chaplin
   
Title: Chief Legal Officer




Exhibit 3.1

CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BERKELEY LIGHTS, INC.

(Pursuant to Section 242 of the General Corporation Law of the State of Delaware)
 
Berkeley Lights, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “General Corporation Law”), does hereby certify:
 
FIRST: That the name of the Corporation is Berkeley Lights, Inc., and that the Corporation was originally incorporated pursuant to the General Corporation Law on April 5, 2011.
 
SECOND: That the Board of Directors of the Corporation duly adopted resolutions proposing to amend the Amended and Restated Certificate of Incorporation of the Corporation, and declaring such amendment to be advisable and fair to, and in the best interests of, the Corporation and its stockholders, as follows:
 
NOW, THEREFORE, BE IT RESOLVED, that Article I of the Amended and Restated Certificate of Incorporation be amended to read in its entirety as follows:

The name of the corporation is PhenomeX Inc. (the “Corporation”).

*          *          *          *          *          *
 
THIRD: That this Certificate of Amendment of the Amended and Restated Certificate of Incorporation of the Corporation has been duly adopted in accordance with Section 242 of the General Corporation Law.
 
Remainder of page intentionally left blank.


IN WITNESS WHEREOF, this Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Berkeley Lights, Inc. has been executed by a duly authorized officer of the Corporation on this 21st day of March, 2023.

   
BERKELEY LIGHTS, INC.
 
By:
/s/ Scott Chaplin
   
Name:  Scott Chaplin
   
Title:  Chief Legal Officer
 



Exhibit 3.2

Amended and Restated Bylaws of
PhenomeX Inc.
(a Delaware corporation)


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
Advance Notice Procedures for Business Brought before a Meeting.
1
       
 
2.5
Advance Notice Procedures for Nominations of Directors.
5
       
 
2.6
Notice of Stockholders’ Meetings.
7
       
 
2.7
Quorum.
7
       
 
2.8
Adjourned Meeting; Notice.
8
       
 
2.9
Conduct of Business.
8
       
 
2.10
Voting.
9
       
 
2.11
Record Date for Stockholder Meetings and Other Purposes.
9
       
 
2.12
Proxies.
10
       
 
2.13
List of Stockholders Entitled to Vote.
10
       
 
2.14
Inspectors of Election.
10
       
 
2.15
Delivery to the Corporation.
11
       
Article III - Directors
11
   
 
3.1
Powers.
11
       
 
3.2
Number of Directors.
11
       
 
3.3
Election, Qualification and Term of Office of Directors.
12
       
 
3.4
Resignation and Vacancies.
12
       
 
3.5
Place of Meetings; Meetings by Telephone.
12
       
 
3.6
Regular Meetings.
12
       
 
3.7
Special Meetings; Notice.
13
       
 
3.8
Quorum.
13
       
 
3.9
Board Action without a Meeting.
13
       
 
3.10
Fees and Compensation of Directors.
14

-i-

Article IV - Committees
14
   
 
4.1
Committees of Directors.
14
       
 
4.2
Committee Minutes.
14
       
 
4.3
Meetings and Actions of Committees.
14
       
 
4.4
Subcommittees.
15
       
Article V - Officers
15
   
 
5.1
Officers.
15
       
 
5.2
Appointment of Officers.
15
       
 
5.3
Subordinate Officers.
15
       
 
5.4
Removal and Resignation of Officers.
15
       
 
5.5
Vacancies in Offices.
16
       
 
5.6
Representation of Shares of Other Corporations.
16
       
 
5.7
Authority and Duties of Officers.
16
       
 
5.8
Compensation.
16
       
Article VI - Records
16
   
Article VII - General Matters
17
   
 
7.1
Execution of Corporate Contracts and Instruments.
17
       
 
7.2
Stock Certificates.
17
       
 
7.3
Special Designation of Certificates.
17
       
 
7.4
Lost Certificates.
18
       
 
7.5
Shares Without Certificates.
18
       
 
7.6
Construction; Definitions.
18
       
 
7.7
Dividends.
18
       
 
7.8
Fiscal Year.
18
       
 
7.9
Seal.
18
       
 
7.10
Transfer of Stock.
19
       
 
7.11
Stock Transfer Agreements.
19
       
 
7.12
Registered Stockholders.
19
       
 
7.13
Waiver of Notice.
19
       
Article VIII - Notice by Electronic Transmission
19
   
 
8.1
Delivery of Notice; Notice by Electronic Transmission.
19

-ii-

Article IX - Indemnification
20
   
 
9.1
Indemnification of Directors and Officers.
20
       
 
9.2
Indemnification of Others.
21
       
 
9.3
Prepayment of Expenses.
21
       
 
9.4
Determination; Claim.
21
       
 
9.5
Non-Exclusivity of Rights.
21
       
 
9.6
Insurance.
22
       
 
9.7
Other Indemnification.
22
       
 
9.8
Continuation of Indemnification.
22
       
 
9.9
Amendment or Repeal; Interpretation.
22
       
Article X - Amendments
23
   
Article XI - Forum Selection
23
   
Article XII - Definitions
24

-iii-

Amended and Restated Bylaws of
PhenomeX Inc.
 
Article I - Corporate Offices
 
 
1.1
Registered Office.

The address of the registered office of PhenomeX 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 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 establish or as the business 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. 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, reschedule or cancel any previously scheduled annual meeting of stockholders.
 
 
2.3
Special Meeting.

Special meetings of the stockholders may be called only by such persons and only in such manner as set forth in the Certificate of Incorporation.
 
No business may be transacted at any special meeting of stockholders other than the business specified in the notice of such meeting. The Board may postpone, reschedule or cancel any previously scheduled special meeting of stockholders.
 

 
2.4
Advance Notice Procedures for Business 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 must be (a) specified in a notice of meeting given by or at the direction of the Board, (b) if not specified in a notice of meeting, otherwise brought before the meeting by the Board or the chairperson of the meeting, or (c) otherwise properly brought before the meeting by a stockholder present in Person who (A)(1) was a stockholder 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 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”), which proposal has been included in the proxy statement for the annual meeting. 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. The only matters that may be brought before a special meeting are the matters specified in the Corporation’s notice of meeting given by or at the direction of the Person calling the meeting pursuant to the Certificate of Incorporation and Section 2.3 of these bylaws. For purposes of this Section 2.4 and Section 2.5 of these bylaws, “present in Person” shall mean that the stockholder proposing that the business be brought before the annual or special meeting of the Corporation, or, if the proposing stockholder is not an individual, a qualified representative of such proposing stockholder, appear at such annual meeting, and a “qualified representative” of such proposing stockholder shall be, if such proposing stockholder is (x) a general or limited partnership, any general partner or Person who functions as a general partner of the general or limited partnership or who controls the general or limited partnership, (y) a corporation or a limited liability company, any officer or Person who functions as an officer of the corporation or limited liability company or any officer, director, general partner or Person who functions as an officer, director or general partner of any entity ultimately in control of the corporation or limited liability company or (z) a trust, any trustee of such trust. This Section 2.4 shall apply to any business that may be brought before an annual or special meeting of stockholders other than nominations for election to the Board at an annual meeting, which shall be governed by Section 2.5 of these bylaws. Stockholders seeking to nominate Persons for election to the Board must comply with Section 2.5 of these bylaws, and this Section 2.4 shall not be applicable to nominations for election to the Board except as expressly provided in Section 2.5 of these bylaws.
 
(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 ninety (90) days nor more than one hundred twenty (120) days prior to the one-year anniversary of the preceding year’s annual meeting; provided, however, that if the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered, or mailed and received, not later than the ninetieth (90th) day prior to such annual meeting or, if later, the tenth (10th) day following the day on which public disclosure of the date of such annual meeting was first made (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 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:
 
2

(a)          As to each Proposing Person (as defined below), (A) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the Corporation’s books and records); and (B) the number of shares of each class or series of stock 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 stock 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 (A) and (B) are referred to as “Stockholder Information”);
 
(b)          As to each Proposing Person, (A) 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 stock 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, (B) any rights to dividends on the shares of any class or series of stock of the Corporation owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the Corporation, (C) 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, (D) any other material relationship between such Proposing Person, on the one hand, and the Corporation or any affiliate of the Corporation, on the other hand, (E) 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) and (F) 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 (A) through (F) 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
 
3

(c)          As to each item of business that the stockholder proposes to bring before the annual meeting, (A) 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, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration), (C) 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 Person or entity (including their names) in connection with the proposal of such business by such stockholder and (D) 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 Section 2.4(iii) 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.
 
(iv)         For purposes of this Section 2.4, the term “Proposing Person” shall mean (a) the stockholder providing the notice of business proposed to be brought before an annual meeting, (b) 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, (c) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder in such solicitation or (d) any associate (within the meaning of Rule 12b-2 under the Exchange Act for the purposes of these bylaws) of such stockholder, beneficial owner or any other participant.
 
(v)          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 notice of the meeting and as of the date that is ten (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 (5) business days after the record date for notice of the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) 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 ten (10) business days prior to the meeting or any adjournment or postponement thereof).
 
(vi)          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.
 
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(vii)        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.
 
(viii)       For purposes of these bylaws, “public disclosure” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
 
 
2.5
Advance Notice Procedures for Nominations of Directors.

(i)           Nominations of any Person for election to the Board at an annual meeting may be made at such meeting only (a) 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 (b) by a stockholder present in Person (as defined in Section 2.4) (1) who was a beneficial 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, (2) is entitled to vote at the meeting and (3) has complied with this Section 2.5 as to such notice and nomination. The foregoing clause (b) shall be the exclusive means for a stockholder to make any nomination of a Person or Persons for election to the Board at any annual meeting of stockholders.
 
(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 (a) provide Timely Notice (as defined in Section 2.4(ii) of these bylaws) thereof in writing and in proper form to the Secretary of the Corporation, (b) 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 (c) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.5. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above.
 
(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) of these bylaws) 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)(c) shall be made with respect to nomination of each Person for election as a director at the meeting); and
 
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(c)          As to each candidate whom a Nominating Person proposes to nominate for election as a director, (A) 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 if such candidate for nomination were a Nominating Person, (B) 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), (C) 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 (A) through (C) are referred to as “Nominee Information”), and (D) a completed and signed questionnaire, representation and agreement as provided in Section 2.5(vi).
 
(iv)         For purposes of this Section 2.5, the term “Nominating Person” shall mean (a) the stockholder providing the notice of the nomination proposed to be made at the meeting, (b) 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, (c) any other participant in such solicitation and (d) any associate of such stockholder or beneficial owner or any other participant in such solicitation.
 
(v)          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 notice of the meeting and as of the date that is ten (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 (5) business days after the record date for notice of the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) 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 ten (10) business days prior to the meeting or any adjournment or postponement thereof).
 
(vi)         To be eligible to be a candidate for election as a director of the Corporation at an annual meeting, a candidate must be nominated in the manner prescribed in this 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 the form provided by the Corporation) with respect to the background, qualifications, stock ownership and independence of such candidate for nomination and (b) a written representation and agreement (in the form provided by the Corporation) that such candidate for nomination (A) 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 of the Corporation that has not been disclosed therein and (B) 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 all 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).
 
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(vii)        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.
 
(viii)       In addition to the requirements of this Section 2.5 with respect to any nomination proposed to be made at a meeting, each Proposing Person shall comply with all applicable requirements of the Exchange Act with respect to any such nominations.
 
(ix)         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 this Section 2.5, as applicable. The presiding officer at the meeting shall, if the facts warrant, determine that a nomination was not properly made in accordance with this Section 2.5, 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 case for the nominee in question) shall be void and of no force or effect.
 
(x)          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 this Section 2.5.
 
 
2.6
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 ten (10) nor more than sixty (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.
 
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2.7
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 2.8 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.
 
 
2.8
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 thirty (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.
 
 
2.9
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.
 
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2.10
Voting.

Except as may be otherwise provided in the Certificate of Incorporation, these bylaws or the DGCL, each stockholder shall be entitled to one (1) vote for each share of capital stock held by such stockholder.
 
Except as otherwise provided by 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 by 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.
 
 
2.11
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 sixty (60) days nor less than ten (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 next day preceding the day on which notice is first given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for 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.
 
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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 sixty (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.
 
 
2.12
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 (3) 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 which sets forth or is submitted with information from which it can be determined that the transmission was authorized by the stockholder.
 
 
2.13
List of Stockholders Entitled to Vote.

The Corporation shall prepare, at least ten (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 ten (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 ten (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 2.13 or to vote in person or by proxy at any meeting of stockholders.
 
 
2.14
Inspectors of Election.

Before any meeting of stockholders, the Corporation shall appoint an inspector or inspectors of election to act at the meeting or its adjournment and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If 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.
 
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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.
 
 
2.15
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.
 
 
3.2
Number of Directors.

Subject to the Certificate of Incorporation, the total number of directors constituting the Board shall be determined from time to time by resolution 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.
 
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3.3
Election, Qualification and Term of Office of Directors.

Except as provided in Section 3.4 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 or removal. Directors need not be stockholders. The Certificate of Incorporation or these bylaws may prescribe qualifications for directors.
 
 
3.4
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 3.3.
 
Unless otherwise provided in the Certificate of Incorporation or these bylaws, vacancies resulting from the death, resignation, disqualification 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, although less than a quorum, or by a sole remaining director.
 
 
3.5
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 this bylaw shall constitute presence in person at the meeting.
 
 
3.6
Regular Meetings.

Regular 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, telegraph or telex, or by electronic mail or other means of electronic transmission. No further notice shall be required for regular meetings of the Board.
 
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3.7
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 Chief Executive Officer, the President, the Secretary or a majority of the total number of directors constituting the Board.
 
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; or

 
(iv)
sent by other means of electronic transmission,

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 twenty-four (24) hours 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 four (4) days before the time of the holding of the meeting. The 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.
 
 
3.8
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.
 
 
3.9
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.
 
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3.10
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.
 
Article IV - Committees
 
 
4.1
Committees of Directors.

The Board may designate one (1) or more committees, each committee to consist, of one (1) or more of the directors of the Corporation. The Board may designate one (1) 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; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the Corporation.
 
 
4.2
Committee Minutes.

Each committee shall keep regular minutes of its meetings and report the same to the Board when required.
 
 
4.3
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 3.5 (place of meetings; meetings by telephone);

 
(ii)
Section 3.6 (regular meetings);

 
(iii)
Section 3.7 (special meetings; notice);

 
(iv)
Section 3.9 (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;
 
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(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 4.3, provided that such rules do not violate the provisions of the Certificate of Incorporation or applicable law.
 
 
4.4
Subcommittees.

Unless otherwise provided in the Certificate of Incorporation, these bylaws or the resolutions of the Board designating the committee, a committee may create one (1) or more subcommittees, each subcommittee to consist of one (1) 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 President and a Secretary. The Corporation may also have, at the discretion of the Board, a Chairperson of the Board, a Vice Chairperson of the Board, a Chief Executive Officer, a Chief Financial Officer, a Treasurer, one (1) or more Vice Presidents, one (1) or more Assistant Vice Presidents, one (1) or more Assistant Treasurers, one (1) 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, the 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.
 
15

 
5.5
Vacancies in Offices.

Any vacancy occurring in any office of the Corporation shall be filled by the Board or as provided in Section 5.2.
 
 
5.6
Representation of Shares of Other Corporations.

The Chairperson of the Board, the Chief Executive Officer, or the President of this Corporation, or any other person authorized by the Board, the Chief Executive Officer or the 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
Authority and Duties of 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.
 
 
5.8
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 are recorded in accordance with Section 224 of the DGCL 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.
 
16

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 Chairperson or Vice Chairperson of the Board, Chief Executive Officer, the President, Vice 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. In case any officer, transfer agent or registrar who has signed or whose facsimile 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.
 
17

 
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 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 thereof to be impressed or affixed or in any other manner reproduced.
 
18

 
7.10
Transfer of Stock.

Shares of the Corporation shall be transferable in the manner prescribed by law and in these bylaws. 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.
 
 
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. 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.
 
19

Article VIII - Notice by Electronic Transmission
 
 
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 from and after the time that (1) the Corporation is unable to deliver by such electronic transmission two (2) 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.
 
20

Article IX - Indemnification
 
 
9.1
Indemnification of Directors and Officers.

The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended, any director or officer of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while serving as 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 corporation or of a partnership (a “covered person”), joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred by such person in connection with any such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 9.4, the Corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized in the specific case by the Board.
 
 
9.2
Indemnification of Others.

The Corporation shall have the power to indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any employee or agent of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any Proceeding by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person in connection with any such Proceeding.
 
 
9.3
Prepayment of Expenses.

The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by any covered person, and may pay the expenses incurred by any employee or agent of the Corporation, in defending any Proceeding in advance of its final disposition; provided, however, that such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article IX or otherwise.
 
 
9.4
Determination; Claim.

If a claim for indemnification (following the final disposition of such Proceeding) under this Article IX is not paid in full within sixty (60) days, or a claim for advancement of expenses under this Article IX is not paid in full within thirty (30) days, after a written claim therefor has been received by the Corporation the claimant may thereafter (but not before) file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
 
21

 
9.5
Non-Exclusivity of Rights.

The rights conferred on any person by this Article IX shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
 
 
9.6
Insurance.

The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of the DGCL.
 
 
9.7
Other Indemnification.

The Corporation’s obligation, if any, to indemnify or advance expenses to any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
 
 
9.8
Continuation of Indemnification.

The rights to indemnification and to prepayment of expenses provided by, or granted pursuant to, this Article IX shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.
 
 
9.9
Amendment or Repeal; Interpretation.

The provisions of this Article IX shall constitute a contract between the Corporation, on the one hand, and, on the other hand, each individual who serves or has served as a director or officer of the Corporation (whether before or after the adoption of these bylaws), in consideration of such person’s performance of such services, and pursuant to this Article IX the Corporation intends to be legally bound to each such current or former director or officer of the Corporation. With respect to current and former directors and officers of the Corporation, the rights conferred under this Article IX are present contractual rights and such rights are fully vested, and shall be deemed to have vested fully, immediately upon adoption of theses bylaws. With respect to any directors or officers of the Corporation who commence service following adoption of these bylaws, the rights conferred under this provision shall be present contractual rights and such rights shall fully vest, and be deemed to have vested fully, immediately upon such director or officer commencing service as a director or officer of the Corporation. Any repeal or modification of the foregoing provisions of this Article IX shall not adversely affect any right or protection (i) hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification or (ii) under any agreement providing for indemnification or advancement of expenses to an officer or director of the Corporation in effect prior to the time of such repeal or modification.
 
22

Any reference to an officer of the Corporation in this Article IX shall be deemed to refer exclusively to the Chief Executive Officer, President, and Secretary, or other officer of the Corporation appointed by (x) the Board pursuant to Article V of these bylaws or (y) an officer to whom the Board has delegated the power to appoint officers pursuant to Article V of these bylaws, and any reference to an officer of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be deemed to refer exclusively to an officer appointed by the board of directors (or equivalent governing body) of such other entity pursuant to the certificate of incorporation and bylaws (or equivalent organizational documents) of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The fact that any person who is or was an employee of the Corporation or an employee of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise has been given or has used the title of “Vice President” or any other title that could be construed to suggest or imply that such person is or may be an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall not result in such person being constituted as, or being deemed to be, an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise for purposes of this Article IX.
 
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 other 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 generally in an election of directors, voting together as a single class.
 
Article XI - Forum Selection
 
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) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or stockholder of the Corporation to the Corporation or to the Corporation’s stockholders, (iii) any action arising pursuant to any provision of the DGCL or the Certificate of Incorporation or these bylaws (as either may be amended from time to time) or (iv) any action asserting a claim against the Corporation governed by the internal affairs doctrine. If any action the subject matter of which is within the scope of the preceding sentence is filed in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (a) the Personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce the 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.
 
23

Unless the Corporation consents in writing to the selection of an alternate forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. Any person or entity purchasing or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to this Article XI. Notwithstanding the foregoing, the provisions of this Article XI shall not apply to suits brought to enforce any liability or duty created by the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts of the United States have exclusive jurisdiction.
 
Article XII - 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.
 

24

Exhibit 10.1

SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
 
dated as of March 21, 2023
 
among
 
PHENOMEX INC.,
 
as Borrower,
 
ISOPLEXIS CORPORATION,
 
as a Guarantor,
 
and
 
EAST WEST BANK,
 
as Bank
 

TABLE OF CONTENTS
 
1.
DEFINITIONS AND CONSTRUCTION.
1
 
1.1.
Definitions.
1
 
1.2.
Accounting Terms.
1
 
1.3.
Other Definitional Terms; Rules of Interpretation.
2
 
1.4.
Effectuation of Certain Transactions
3
 
1.5.
Timing of Payment or Performance
3
 
1.6.
Divisions.
3
2.
LOAN AND TERMS OF PAYMENT.
3
 
2.1.
Credit Extensions.
3
 
2.2.
[Reserved].
4
 
2.3.
Interest Rates, Payments, and Calculations.
4
 
2.4.
Crediting Payments.
5
 
2.5.
Fees.
5
 
2.6.
Additional Costs.
6
 
2.7.
Taxes.
6
 
2.8.
Mandatory Prepayments.
8
 
2.9.
Term.
9
3.
CONDITIONS OF LOANS.
10
 
3.1.
Conditions Precedent to Initial Credit Extension.
10
4.
CREATION OF SECURITY INTEREST.
10
 
4.1.
Grant of Security Interest.
10
 
4.2.
Perfection of Security Interest.
11
 
4.3.
Right to Inspect.
11
 
4.4.
Pledge of Collateral.
12
5.
REPRESENTATIONS AND WARRANTIES.
12
 
5.1.
Due Organization and Qualification.
12
 
5.2.
Due Authorization; No Conflict.
12
 
5.3.
Enforceability.
13
 
5.4.
Collateral.
13
 
5.5.
Margin Stock and Use of Proceeds.
13
 
5.6.
Employee Matters.
13

-i-

 
5.7.
Intellectual Property.
13
 
5.8.
Environmental Matters.
14
 
5.9.
Name; Location of Chief Executive Office.
14
 
5.10.
Actions, Suits, Litigation, or Proceedings.
14
 
5.11.
No Material Adverse Change in Financial Statements.
15
 
5.12.
Solvency, Payment of Debts.
15
 
5.13.
Compliance with Laws and Regulations.
15
 
5.14.
Subsidiaries.
16
 
5.15.
Government Consents.
16
 
5.16.
Shares.
16
 
5.17.
Full Disclosure.
16
 
5.18.
[Reserved].
17
 
5.19.
Anti-Money-Laundering and Economic Sanctions Laws.
17
 
5.20.
[Reserved].
17
 
5.21.
ERISA Matters.
17
 
5.22.
Taxes.
17
 
5.23.
Investor Rights Agreements; Warrant
18
6.
AFFIRMATIVE COVENANTS.
18
 
6.1.
Good Standing and Government Compliance.
18
 
6.2.
Financial Statements, Reports, Certificates.
18
 
6.3.
[Reserved].
20
 
6.4.
Taxes.
20
 
6.5.
Insurance.
20
 
6.6.
Deposit Accounts; Securities Accounts.
21
 
6.7.
Financial Covenants.
21
 
6.8.
Registration of Intellectual Property Rights.
23
 
6.9.
Notice for Inbound Licenses.
23
 
6.10.
Creation/Acquisition of Subsidiaries.
24
 
6.11.
[Reserved].
24
 
6.12.
Further Assurances.
24
 
6.13.
Interest Rate Protection.
24
 
6.14.
Patriot Act, Bank Secrecy Act and Office of Foreign Assets Control.
24
 
6.15.
Bank Meetings.
24

-ii-

 
6.16.
Post-Closing Obligations
24
7.
NEGATIVE COVENANTS.
25
 
7.1.
Dispositions.
25
 
7.2.
Change in Name, Location, Executive Office, or Executive Management; Change in Business; Change in Fiscal Year; Change in Control.
25
 
7.3.
Mergers or Acquisitions.
25
 
7.4.
Indebtedness.
25
 
7.5.
Encumbrances.
26
 
7.6.
Distributions.
26
 
7.7.
Investments.
26
 
7.8.
Transactions with Affiliates.
26
 
7.9.
Subordinated Debt.
26
 
7.10.
Inventory and Equipment.
27
 
7.11.
No Investment Company; Margin Regulation.
27
8.
EVENTS OF DEFAULT.
27
 
8.1.
Payment Default.
27
 
8.2.
Covenant Default.
27
 
8.3.
Material Adverse Change.
27
 
8.4.
Attachment.
28
 
8.5.
Insolvency.
28
 
8.6.
Other Agreements.
28
 
8.7.
Subordinated Debt.
28
 
8.8.
Judgments.
28
 
8.9.
Misrepresentations.
28
 
8.10.
Guaranty.
29
9.
BANK'S RIGHTS AND REMEDIES.
29
 
9.1.
Rights and Remedies.
29
 
9.2.
Power of Attorney.
31
 
9.3.
Accounts Collection.
31
 
9.4.
Bank Expenses.
31
 
9.5.
Bank's Liability for Collateral.
31
 
9.6.
No Obligation to Pursue Others.
32
 
9.7.
Remedies Cumulative.
32

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9.8.
Demand; Protest.
32
10.
NOTICES.
32
11.
CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE.
33
 
11.1.
Governing Law and Venue.
33
 
11.2.
Jury Trial Waiver.
33
 
11.3.
Jury Reference.
33
12.
GENERAL PROVISIONS.
34
 
12.1.
Successors and Assigns.
34
 
12.2.
Indemnification.
34
 
12.3.
Time of Essence.
34
 
12.4.
Severability of Provisions.
34
 
12.5.
Correction of Loan Documents.
35
 
12.6.
Amendments in Writing, Integration.
35
 
12.7.
Counterparts.
35
 
12.8.
Survival.
35
 
12.9.
Effect of Amendment and Restatement.
35
 
12.10.
Confidentiality.
36
 
12.11.
Patriot Act.
36
 
12.12.
Reinstatement.
36
 
12.13.
Acknowledgment Regarding Any Supported QFCs
37

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SCHEDULES
 
  6.16
Post-Closing Matters
 

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This SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (as amended, restated, supplemented, or otherwise modified from time to time, this "Agreement") is entered into as of March 21, 2023, by and among EAST WEST BANK, a California banking corporation ("Bank"), PHENOMEX INC., a Delaware corporation ("Borrower") and, immediately following the consummation of the Merger (as defined below), ISOPLEXIS CORPORATION, a Delaware corporation ("IsoPlexis").
 
RECITALS
 
Pursuant to the terms of that certain Agreement and Plan of Merger, dated as of December 21, 2022 (the "Merger Agreement"), among IsoPlexis, Borrower, and Iceland Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Borrower ("Merger Sub"), Merger Sub will merge (the "Merger") with and into the IsoPlexis (the "Merger"), with IsoPlexis as the surviving entity of such Merger.
 
Borrower wishes to obtain credit from time to time from Bank, and Bank desires to extend credit to Borrower.  This Agreement sets forth the terms on which Bank will advance credit to Borrower, and Borrower will repay the amounts owing to Bank, and amends and restates, in its entirety, that certain Amended and Restated Loan and Security Agreement (as amended from time to time prior to the date hereof, the "Original Agreement") by and between Bank and Borrower dated as of June 30, 2021 (the "Original Closing Date").
 
AGREEMENT
 
The parties agree as follows:
 
1.           DEFINITIONS AND CONSTRUCTION.
 
1.1.      Definitions.  As used in this Agreement, all capitalized terms shall have the definitions set forth on Exhibit A.  The terms "Account Debtor", "Chattel Paper", "Commercial Tort Claim", "Control", "Deposit Accounts", "Documents", "Electronic Chattel Paper", "Fixtures", "General Intangibles", "Goods, Instruments", "Inventory", "Investment Property", "Letter-of-Credit Right", "Proceeds", "Securities Account", "Security Certificate", "Intangible Chattel Paper", and any other term defined in the Code and used herein without definition shall have the meaning given to the term in the Code.
 
1.2.         Accounting Terms.
 
(a)          Any accounting term not specifically defined on Exhibit A shall be construed in accordance with GAAP and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP as in effect from time to time, except as otherwise provided herein.  The term "financial statements" shall include the accompanying notes and schedules.
 
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(b)          Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (A) any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial Liabilities), or any successor thereto (including pursuant to the Accounting Standards Codification), to value any Indebtedness of Holdings or any Subsidiary at "fair value", as defined therein and (B) any treatment of Indebtedness relating to convertible or equity-linked securities under Accounting Standards Codification 470-20 or 2015-03 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) requiring the valuation of any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.
 
(c)          Notwithstanding anything to the contrary contained in the definition of "Capital Leases" or elsewhere in this Agreement, only those leases (assuming for purposes thereof that such leases were then in effect) that would constitute "capital leases" in conformity with GAAP as in effect prior to giving effect to the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02 "Leases (Topic 842)" and ASU No. 2018-11 "Leases (Topic 842)" shall be considered Capital Leases hereunder or under any other Loan Document,  and all calculations and deliverables under this Agreement or any other Loan Document shall be made or prepared, as applicable, in accordance therewith; provided, that all financial statements required to be provided hereunder shall be prepared in accordance with GAAP without giving effect to the foregoing treatment of Capital Leases.
 
1.3.       Other Definitional Terms; Rules of Interpretation.  The words "hereof," "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  In the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including"; the words "to" and "until" each mean "to but excluding", and the word "through" means "to and including".  The word "shall" shall be construed to have the same meaning and effect as the word "will."   The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  References to Sections, subsections, Exhibits, Schedules and the like, are to Sections and subsections of, or Exhibits or Schedules attached to, this Agreement unless otherwise expressly provided.  The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."  Unless the context in which used herein otherwise clearly requires, "or" has the inclusive meaning represented by the phrase "and/or."  Reference to any agreement (including the Loan Documents), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof (and, if applicable, in accordance with the terms hereof and the other Loan Documents), except where otherwise explicitly provided, and reference to any promissory note includes any promissory note which is an extension or renewal thereof or a substitute or replacement therefor.  Except as otherwise specified herein, references to any law, rule, regulation, order, decree, requirement, policy, guideline, directive or interpretation means as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect on the determination date, including rules and regulations promulgated thereunder. The words "asset" and "property", when used in any Loan Document, shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
 
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1.4.        Effectuation of Certain Transactions.  Each of the representations and warranties contained in this Agreement (and all corresponding definitions) is made after giving effect to the Merger.
 
1.5.       Timing of Payment or Performance.  When payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
 
1.6.      Divisions.  For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction's laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.
 
2.            LOAN AND TERMS OF PAYMENT.
 
2.1.        Credit Extensions.
 
(a)         Promise to Pay.  Borrower promises to pay to Bank, in lawful money of the United States of America, the aggregate unpaid principal amount of all Credit Extensions made by Bank to Borrower, together with interest on the unpaid principal amount of such Credit Extensions at the rates set forth herein and all other Obligations owing by Borrower to Bank, in each case, in accordance with the terms hereof.
 
(b)          Term Loan.
 
(i)          Subject to and upon the terms and conditions of the Original Agreement, on the Original Closing Date, Bank made a term loan to Borrower in the original principal amount of Twenty Million Dollars ($20,000,000) (the "Original Term Loan").  On the date hereof, immediately prior to giving effect to this Agreement, the outstanding principal balance of the Original Term Loan is Twenty Million Dollars ($20,000,000) (the "Outstanding Original Term Loan Balance").  On the Closing Date, the Outstanding Original Term Loan Balance shall be continued hereunder for all purposes of this Agreement as a term loan made by Bank pursuant to this Agreement.  Subject to and upon the terms and conditions of this Agreement, Bank hereby agrees to make an additional term loan to Borrower on the Closing Date in the original principal amount of Fifty Million Dollars ($50,000,000) (the "Closing Date Term Loan"; the Outstanding Original Term Loan Balance, taken together and treated as a single loan herein referred to as the "Term Loan"), such that the outstanding Term Loan on the Closing Date after giving effect to this Agreement and the extension of credit hereunder shall equal Seventy Million Dollars ($70,000,000).
 
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(ii)
 
a)          Interest shall accrue from the date the Term Loan is made at the rate specified in Section 2.3(a), and shall be payable monthly as provided in Section 2.3(c).
 
b)         The Term Loan shall be repaid in equal monthly installments in the amount of Eight Hundred Seventy-Five Thousand Dollars ($875,000) each, commencing on the Amortization Date and continuing on the first day of each month thereafter through and including March 1, 2028.  On the Term Loan Maturity Date, the outstanding principal amount of the Term Loan and all accrued and unpaid interest thereon shall be immediately due and payable.  The Term Loan, once repaid, may not be reborrowed.
 
(c)         Bank Products.  Borrower may request, and Bank or its affiliates may, in their sole and absolute discretion, provide, Bank Products.  If Borrower requests Bank or its affiliates to procure or provide Bank Products, then Borrower agrees with Bank or such affiliates, as applicable, to pay when due all indebtedness, liabilities and obligations with respect to Bank Products and further agrees to indemnify and hold Bank or such affiliates harmless from any and all indebtedness, liabilities, obligations, losses, costs and expenses (including  reasonable attorneys' fees) now or hereafter owing to or incurred by Bank (including those under agreements of indemnifications or assurances provided by Bank to its affiliates) or its affiliates with respect to Bank Products, all as the same may arise.  Borrower acknowledges and agrees that (a) all indebtedness, liabilities and obligations with respect to Bank Products provided by Bank or its affiliates, and all of its agreements under this Section 2.1(c), are part of the Obligations secured by the Collateral, and (b) the obtaining of Bank Products from Bank or its affiliates, (i) is in the sole and absolute discretion of Bank and its applicable affiliates and (ii) is subject to all rules and regulations of Bank and its applicable affiliates.
 
2.2.         [Reserved].
 
2.3.         Interest Rates, Payments, and Calculations.
 
(a)         Interest Rate.  Except as set forth in Section 2.3(b), the Term Loan shall bear interest, on the outstanding daily balance thereof at a variable rate per annum equal to the Prime Rate plus one-half of one percent (0.50%).
 
(b)         Late Fee; Default Rate.  If any payment is not made within ten (10) days after the date such payment is due, Borrower shall pay Bank a late fee equal to the lesser of (i) three percent (3%) of the amount of such unpaid amount or (ii) the maximum amount permitted to be charged under applicable law.  At Bank's election, all Obligations shall bear interest, from and after the occurrence and during the continuance of an Event of Default, at a rate equal to five (5) percentage points above the interest rate applicable immediately prior to the occurrence of the Event of Default.
 
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(c)          Payments.  Interest hereunder shall be due and payable on the first (1st) calendar day of each month during the term hereof (commencing as of May 1, 2023).  Bank shall, at its option, charge such interest and all Periodic Payments, in each case if and when due, against, first, a deposit account designated by Borrower in writing, and second, if insufficient funds remain in such account, any of Borrower's other Deposit Accounts, in which case those amounts shall, to the extent not satisfied in full after charging such remaining amounts to such other Deposit Accounts, thereafter accrue interest at the rate then applicable hereunder.  Any interest not paid when due shall be compounded by becoming a part of the Obligations, and such interest shall thereafter accrue interest at the rate then applicable hereunder.  Notwithstanding anything to the contrary herein, the parties hereto hereby agree that any and all interest on the "Credit Extensions" under, and as defined in, the Original Agreement that is accrued and unpaid as of the Closing Date, shall be Obligations of Borrower hereunder, shall constitute accrued and unpaid interest hereunder as of the Closing Date, and shall be due and payable on the Closing Date.
 
(d)         Application of Payments.  Unless otherwise agreed or required by applicable law, payments made hereunder will be applied first to any accrued unpaid interest as shown on the most recent statement or bill provided to Borrower (if no statement or bill has been provided for any reason, it shall be applied to the unpaid interest accrued since the last payment); then to principal; then to any late charges; then to any unpaid collection costs, then to any other Obligations until Paid in Full and Bank has no further obligation to make Credit Extensions under this Agreement and then to Borrower or such other Person entitled thereto under applicable law.  Borrower will pay Bank at Bank's address set forth in Section 10 or at such other place as Bank may designate in writing.
 
(e)         Computation.  In the event the Prime Rate is changed from time to time hereafter, the applicable rate of interest hereunder shall be increased or decreased, effective as of the day the Prime Rate is changed, by an amount equal to such change in the Prime Rate.  All interest chargeable under the Loan Documents shall be computed on the basis of a three hundred sixty (360) day year for the actual number of days elapsed.
 
2.4.       Crediting Payments.  So long as no Event of Default has occurred and is continuing, Bank shall credit a wire transfer of funds, check or other item of payment to such Deposit Account or Obligation as Borrower specifies in writing.  Upon the occurrence and during the continuance of an Event of Default, Bank shall have the right, in its sole discretion, to immediately apply any wire transfer of funds, check, or other item of payment Bank may receive to conditionally reduce Obligations, but such applications of funds shall not be considered a payment on account unless such payment is of immediately available federal funds or unless and until such check or other item of payment is honored when presented for payment.  Notwithstanding anything to the contrary contained herein, any wire transfer or payment received by Bank after 12:00 noon Pacific time shall be deemed to have been received by Bank as of the opening of business on the immediately following Business Day.  Whenever any payment to Bank under the Loan Documents would otherwise be due (except by reason of acceleration) on a date that is not a Business Day, such payment shall instead be due on the next Business Day, and additional fees or interest, as the case may be, shall accrue and be payable for the period of such extension.
 
2.5.        Fees.  Borrower shall pay to Bank the following:
 
(a)          Term Loan Facility Fee.  On the Closing Date, a term loan facility fee equal to Seven Hundred Thousand Dollars ($700,000), which shall be nonrefundable when paid.
 
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(b)          Bank Expenses.  All Bank Expenses incurred through the Closing Date, less any amounts paid specifically for Bank Expenses prior to such invoicing, shall be paid on the Closing Date and, after the Closing Date, promptly after receiving an invoice from Bank, all Bank Expenses shall be paid as and when requested by Bank.
 
(c)          Early Termination Fee.  A fee in an amount equal to one percent (1%) of the amount of any prepayment of the outstanding principal balance of the Term Loan with respect to any prepayment made prior to the first anniversary of the Closing Date; provided, that no such fee shall be required in respect of any prepayment that occurs on or after the date that is the first anniversary of the Closing Date.
 
2.6.       Additional Costs.  If Bank shall determine that the adoption or implementation of any applicable law, rule, regulation, or treaty after the date hereof regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof after the date hereof by any governmental authority, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by Bank (or its applicable lending office) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on capital of Bank or any person or entity controlling Bank (a "Bank's Parent") as a consequence of its obligations hereunder to a level below that which Bank (or Bank's Parent) could have achieved but for such adoption, change, or compliance (taking into consideration policies with respect to capital adequacy) by an amount deemed by Bank to be material, then from time to time, within thirty (30) days after receipt by Borrower of an executed certificate from Bank setting forth the amount or amounts necessary to compensate Bank for such reduction, Borrower shall pay to Bank such amounts so certified to it (other than any amounts with respect to (i) Indemnified Taxes, (ii) taxes described in clauses (b) through (d) of Excluded Taxes, and (iii) Connection Income Taxes).  Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) (including pursuant to Basel III) shall in each case be deemed to be a change in law for purposes of this Agreement, regardless of the date enacted, adopted or issued.  The above-described certificate from Bank claiming compensation under this Section 2.6 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error.  Notwithstanding anything to the contrary in this Section 2.6, Borrower shall not be required to compensate Bank pursuant to this Section 2.6 for any amounts incurred more than six (6) months prior to the date that Bank notifies Borrower of Bank's intention to claim compensation therefor; provided that if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect.
 
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2.7.         Taxes.
 
(a)         Withholding.  Any and all payments by any Loan Party to or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Taxes, except as required by applicable law.  If any Loan Party shall be required by any applicable law to deduct any Taxes from such payments, then:  (i) the applicable Loan Party shall make such deductions, (ii) the Loan Party shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law and promptly furnish to Bank a certified receipt or other evidence of such payment, and (iii) if the Tax required to be withheld is an Indemnified Tax, the sum payable by such Loan Party shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.7(a)), Bank receives an amount equal to the sum it would have received had no such deductions been made.
 
(b)        Obligation to Pay.  Without limiting the provisions of Section 2.7(a), each Loan Party shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
 
(c)          Indemnity.  The Loan Parties shall jointly and severally indemnify Bank, within ten (10) Business Days after written demand therefor, for the full amount of any Indemnified Taxes (including Taxes imposed or asserted on or attributable to amounts payable under this this Section 2.7) paid by, or imposed on, Bank (or its Affiliates) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto (including reasonable attorneys' and tax advisors' fees and expenses), whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to Borrower by Bank shall be conclusive absent manifest error.
 
(d)          Receipts.  If requested in writing by Bank, Borrower shall deliver to Bank, as soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Loan Party to a Governmental Authority, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Bank.
 
(e)          Refunds.  If Bank receives a refund of any Taxes as to which it has been indemnified by Borrower or another Loan Party or with respect to which Borrower or another Loan Party has paid additional amounts pursuant to this Section 2.7, it shall, so long as no Event of Default has occurred and is continuing, pay to such Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.7 with respect to the Taxes giving rise to such refund), net of all out of pocket expenses of Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Loan Party, upon the request of Bank, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to Bank in the event Bank is required to repay such refund to such Governmental Authority.  This Section 2.7(e) shall not be construed to require Bank to (i) make available its tax returns (or any other information relating to its taxes that it deems confidential) to such Loan Party or any other Person or (ii) pay any amount pursuant to this Section 2.7(e) the payment of which would place Bank (or its Affiliates) in a less favorable net after-Tax position than Bank (or its Affiliates) would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.
 
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(f)          Bank and any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, shall provide a duly executed IRS Form W-9 to Borrower on the Closing Date, and other appropriate documentation (upon Borrower's written request) certifying to Bank's exemption from, or reduction in rate of, United States federal withholding taxes.  Bank and any other such recipient agree that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Loan Party in writing of its legal inability to do so.
 
(g)        If a payment made to Bank or any other recipient of any payment on account of any obligation of any Loan Party hereunder or under any other Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in IRC Section 1471(b) or 1472(b), as applicable), such recipient shall deliver to Borrower at the time or times prescribed by law and at such time or times reasonably requested by Borrower such documentation prescribed by applicable law (including as prescribed by IRC Section 1471(b)(3)(C)(i)) and such additional documentation reasonably requested by Borrower as may be necessary for Borrower to comply with its obligations under FATCA and to determine that such recipient has complied with such recipient's obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this Section 2.7(g), "FATCA" shall include any amendments made to FATCA after the date of this Agreement.
 
(h)          The Loan Parties' obligations under this Section 2.7 shall survive the repayment of the Loans, the assignment of the Loans, and the termination of the other provisions of this Agreement.
 
2.8.         Mandatory Prepayments.
 
(a)          Sales of Assets.  No later than the fifth Business Day following any Loan Party's receipt of net cash proceeds from any Prepayment Asset Sale of any Loan Party, Borrower shall pay (or cause to be paid) such net cash proceeds to Bank as a mandatory prepayment of the Obligations, such payment to be applied (i) if no Event of Default has occurred and is continuing, to the outstanding principal balance of the Term Loan, applied to the installments in the inverse order of maturity (for the avoidance of doubt, any amount that is due and payable on the Term Loan Maturity Date shall constitute an installment), and (ii) if an Event of Default has occurred and is continuing, in such manner as Bank may elect; provided, that, so long as (1) no Event of Default has occurred and is continuing and (2) prior to the date any such prepayment is required to be made, Borrower has notified Bank in writing of its intention to reinvest the applicable proceeds in the business of one or more Loan Parties, then Borrower shall not be required to make a mandatory prepayment under this clause (a) in respect of the applicable net cash proceeds to the extent that (x) such net cash proceeds are so reinvested within 6 months following receipt thereof, or (y) one or more Loan Parties has committed to so reinvest such net cash proceeds during such 6-month period and the applicable net cash proceeds are so reinvested within 6 months after the expiration of such 6-month period; it being understood that if the applicable net cash proceeds have not been so reinvested prior to the expiration of the applicable period, Borrower shall promptly prepay the Obligations with the amount of applicable net cash proceeds (without regard to the immediately preceding proviso).
 
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(b)         Insured Losses/Condemnation.  If any Equipment or real property of any Loan Party is damaged, destroyed or taken by condemnation in whole or in part or any Loan Party receives proceeds of casualty insurance, upon receipt by any Loan Party of net cash proceeds in respect of the foregoing, no later than the fifth Business Day following any Loan Party's receipt of such net cash proceeds, Borrower shall pay (or cause to be paid) such net cash proceeds to Bank as a mandatory prepayment of the Obligations, such payment to be applied (i) if no Event of Default has occurred and is continuing, to the outstanding principal balance of the Term Loan, applied to the installments in the inverse order of maturity (for the avoidance of doubt, any amount that is due and payable on the Term Loan Maturity Date shall constitute an installment), and (ii) if an Event of Default has occurred and is continuing, in such manner as Bank may elect; provided, that, so long as (1) no Event of Default has occurred and is continuing and (2) prior to the date any such prepayment is required to be made, Borrower has notified Bank in writing of its intention to reinvest the applicable proceeds in the business of one or more Loan Parties, then Borrower shall not be required to make a mandatory prepayment under this clause (b) in respect of the applicable net cash proceeds to the extent that (x) such net cash proceeds are so reinvested within 6 months following receipt thereof, or (y) one or more Loan Parties has committed to so reinvest such net cash proceeds during such 6-month period and the applicable net cash proceeds are so reinvested within 6 months after the expiration of such 6-month period; it being understood that if the applicable net cash proceeds have not been so reinvested prior to the expiration of the applicable period, Borrower shall promptly prepay the Obligations with the amount of applicable net cash proceeds (without regard to the immediately preceding proviso).
 
(c)        Indebtedness.  Promptly (and in any event within three Business Days) following any Loan Party's receipt of the net cash proceeds from the issuance or incurrence of Indebtedness (other than Permitted Indebtedness), Borrower shall pay (or cause to be paid) such net cash proceeds to Bank as a mandatory prepayment of the Obligations, such payment to be applied in such manner as Bank may elect.  The provisions of this clause (c) shall not be deemed to be implied consent to any such issuance or incurrence otherwise prohibited by the terms of this Agreement.
 
(d)        Extraordinary Receipts.  No later than the fifth Business Day following any Loan Party's receipt of the net cash proceeds of any Extraordinary Receipt, Borrower shall pay such net cash proceeds to Bank as a mandatory prepayment of the Obligations, such payment to be applied (i) if no Event of Default has occurred and is continuing, to the outstanding principal balance of the Term Loan, applied to the installments in the inverse order or maturity (for the avoidance of doubt, any amount that is due and payable on the Term Loan Maturity Date shall constitute an installment), and (ii) if an Event of Default has occurred and is continuing, in such manner as Bank may elect; provided that no prepayment under this Section 2.8(d) shall be required unless and solely to the extent that the amount of the net cash proceeds received from Extraordinary Receipts in any fiscal year exceeds Two Million Five Hundred Thousand Dollars ($2,500,000) in the aggregate for all such Extraordinary Receipts in such fiscal year.
 
2.9.        Term. This Agreement shall become effective on the Closing Date and, subject to Section 12.8, shall continue in full force and effect until the Obligations have been Paid in Full and Bank has no further obligation to make Credit Extensions under this Agreement.  Notwithstanding the foregoing, Bank shall have the right to terminate its obligation to make Credit Extensions under this Agreement immediately and without notice upon the occurrence and during the continuance of an Event of Default.  Upon Payment in Full of the Obligations and termination of any and all obligations of Bank to make Credit Extensions under this Agreement in their entirety, Borrower may simultaneously with such payment terminate this Agreement upon three (3) Business Days' written notice to Bank.
 
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3.            CONDITIONS OF LOANS.
 
3.1.       Conditions Precedent to Initial Credit Extension.  The obligation of Bank to make the Term Loan on the Closing Date is subject to the satisfaction or waiver on or before the date hereof of each of the following:
 
(a)          Bank shall have received executed counterparts of this Agreement and each of the other agreements, documents, instruments, opinions, certificates and other items as set forth on Schedule 3.1(a) hereto, in each case, where applicable, duly executed by the applicable parties thereto;
 
(b)          Since January 1, 2023, no event shall have occurred which has had or would reasonably be expected have a Material Adverse Effect;
 
(c)          Bank shall have received payment of the fees and Bank Expenses then due pursuant to Section 2.5;
 
(d)          Bank shall have received an Automatic Debit Authorization;
 
(e)          the representations and warranties contained in this Agreement and each other Loan Document shall be true and correct in all material respects on and as of the Closing Date (provided, however, that those representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as of such date); and
 
(f)          no Event of Default shall have occurred and be continuing, or would result from the making of the Credit Extension on the Closing Date after giving effect to such Credit Extension.
 
The making of the Credit Extension on the Closing Date shall be deemed to be a representation and warranty by Borrower on the Closing Date that the foregoing conditions are satisfied on such date.
 
4.           CREATION OF SECURITY INTEREST.
 
4.1.       Grant of Security Interest.  Each Loan Party hereby grants and pledges to Bank a continuing security interest in all of its right, title and interest to and in all of the Collateral to secure prompt repayment of any and all Obligations and to secure prompt performance by such Loan Party of each of its covenants and duties under the Loan Documents.  For the avoidance of doubt, the term "Collateral" shall not include any Excluded Asset.  Subject only to Permitted Liens that have priority by operation of law, such security interest constitutes a valid, first priority security interest in the presently existing Collateral, and will constitute a valid, first priority security interest in later-acquired Collateral.  Each Loan Party also hereby agrees not to sell, transfer, assign, mortgage, pledge, lease, grant a security interest in, or encumber any of its Intellectual Property, except in connection with Permitted Liens and Permitted Transfers.  Notwithstanding any termination of this Agreement, Bank's Lien on the Collateral shall remain in effect until the Obligations are Paid in Full and Bank has no further obligation to make Credit Extensions under this Agreement.  Upon request by Borrower at or following Payment in Full of the Obligations and the termination of any and all obligations by Bank to make Credit Extensions under this Agreement, Bank shall promptly release its liens and interests in the Collateral securing the Obligations, and Bank shall take such actions as reasonably requested by Borrower in order to cause such Liens to be terminated of record (including filing UCC-3 or other similar termination statements with respect to such Liens).
 
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4.2.       Perfection of Security Interest.  Each Loan Party authorizes Bank to file at any time financing statements, continuation statements, and amendments thereto that (i) either specifically describe the Collateral or describe the Collateral as all assets of such Loan Party, and (ii) contain any other information required by the Code for the sufficiency of filing office acceptance of any financing statement, continuation statement, or amendment, including whether such Loan Party is an organization, the type of organization and any organizational identification number issued to such Loan Party, if applicable.  Any such financing statements may be filed by Bank at any time in the jurisdiction of organization of each Loan Party.  Each Loan Party shall from time to time endorse and deliver to Bank, at the request of Bank, all Negotiable Collateral and other documents that Bank may reasonably request, in form satisfactory to Bank, to perfect and continue perfection of Bank's security interests in the Collateral and in order to fully consummate all of the transactions contemplated under the Loan Documents.  Each Loan Party shall have possession of the Collateral, except where expressly otherwise provided in this Agreement or where Bank chooses to perfect its security interest by possession in addition to the filing of a financing statement.  Where Collateral is in possession of a third party bailee, the applicable Loan Party shall use commercially reasonable efforts as Bank reasonably requests for Bank to (i) subject to Section 7.10 below, obtain an acknowledgment, in form and substance reasonably satisfactory to Bank, of the bailee that the bailee holds such Collateral for the benefit of Bank, and (ii) obtain Control of any Collateral consisting of Investment Property (subject to Section 6.6 to the extent applicable), Letter-of-Credit Rights or Electronic Chattel Paper by causing the securities intermediary or depositary institution or issuing bank to execute a control agreement in form and substance reasonably satisfactory to Bank.  No Loan Party will create any Chattel Paper without placing a legend on the Chattel Paper acceptable to Bank indicating that Bank has a security interest in the Chattel Paper.  Each Loan Party from time to time may deposit with Bank specific cash collateral to secure specific Obligations; each Loan Party authorizes Bank to hold such specific balances in pledge and to decline to honor any drafts thereon or any request by such Loan Party or any other Person to pay or otherwise transfer any part of such balances for so long as the specific Obligations are outstanding.
 
4.3.        Right to Inspect.  Bank (through any of its officers, employees, or agents) shall have the right from time to time (and, so long as no Event of Default has occurred and is continuing, during regular business hours, upon reasonable prior written notice, and no more than once a year) and without duplication of the audits and appraisals conducted pursuant to Section 6.2(i), to inspect each Loan Party's Books and to make copies thereof and to check, test, and appraise the Collateral in order to verify each Loan Party's financial condition or the amount, condition of, or any other matter relating to, the Collateral.
 
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4.4.       Pledge of Collateral.  Each Loan Party hereby pledges, assigns and grants to Bank a security interest in all the Shares, together with all proceeds and substitutions thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncash proceeds of the foregoing (collectively, the "Shares Collateral"), as security for the performance of the Obligations.  All certificates or instruments evidencing the Shares Collateral will be delivered to Bank, accompanied by (a) an instrument of assignment undated and duly executed in blank by Borrower and (b) a duly executed irrevocable proxy in substantially the form of Exhibit D hereto ("Irrevocable Proxy"), and the applicable Loan Party shall cause the books of each Subsidiary whose shares are part of the Shares Collateral and any transfer agent to reflect the pledge of the Shares Collateral.  Upon the occurrence and during the continuance of an Event of Default hereunder, Bank (a) may affect the transfer or registration of any Shares included in the Collateral (including but not limited to the Shares Collateral) into the name of Bank and cause new certificates representing such Shares to be issued in the name of Bank or its transferee and (b) shall have the right to exercise all voting rights will respect to the Shares Collateral.  Each Loan Party will execute and deliver such documents, and take or cause to be taken such actions, as Bank may reasonably request to perfect or continue the perfection of Bank's security interest in the Shares Collateral.  Unless an Event of Default shall have occurred and be continuing, the applicable Loan Party shall be entitled to exercise any voting rights with respect to the Shares Collateral and to give consents, waivers and ratifications in respect thereof, provided that no vote shall be cast or consent, waiver or ratification given or action taken which would be inconsistent with any of the terms of this Agreement or which would constitute or create any violation of any of such terms.  All such rights to vote and give consents, waivers and ratifications shall terminate upon the occurrence and during the continuance of an Event of Default.  Notwithstanding any registration or exercise of an Irrevocable Proxy, Bank shall not be deemed the owner of, or assume any obligations of the owner or holder of any Shares Collateral unless and until Bank accepts such obligations in writing or otherwise takes steps to foreclose its Lien in the Shares Collateral and become the owner thereof under applicable law (including via sale as described in this Agreement.
 
5.            REPRESENTATIONS AND WARRANTIES.
 
Each Loan Party represents and warrants as follows:
 
5.1.         Due Organization and Qualification.  Each  Loan Party and each Subsidiary of a Loan Party is an entity duly existing under the laws of the jurisdiction in which it is organized and qualified and licensed to do business in any state in which the conduct of its business or its ownership of property requires that it be so qualified, except where the failure to do so could not reasonably be expected to cause a Material Adverse Effect.
 
5.2.       Due Authorization; No Conflict.  The execution, delivery, and performance of the Loan Documents (a) are within each Loan Party's powers, have been duly authorized, and are not in conflict with nor constitute a breach of any provision contained in such Loan Party's organizational documents, and (b) except for any such violation that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, will not constitute an event of default under any agreement by which any Loan Party is bound.  No Loan Party is in default under any agreement by which it is bound, except to the extent such default would not reasonably be expected to cause a Material Adverse Effect.
 
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5.3.        Enforceability.  The Loan Documents to which each Loan Party is a party are the legal, valid and binding obligations of such Loan Party and are enforceable against such Loan Party in accordance with their respective terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors' rights generally and to general principles of equity.
 
5.4.        Collateral.  Each applicable Loan Party has rights in or the power to transfer its portion of the Collateral, and its title to the Collateral is free and clear of Liens, adverse claims, and restrictions on transfer or pledge except for Permitted Liens.  The accounts receivable are bona fide existing obligations.  No licenses or agreements giving rise to such accounts receivable is with any Prohibited Territory or with any Person organized under or doing business in a Prohibited Territory.  All Inventory is in all material respects of good and merchantable quality, free from all material defects, except for Inventory for which adequate reserves have been made.  Except as set forth in Section 5.4 of the Disclosure Schedules and as permitted under Section 6.6, none of the cash or cash equivalents of the Loan Parties are held in a Bank Accounts or Securities Accounts with any Person other than Bank or Bank's Affiliates.
 
5.5.       Margin Stock and Use of Proceeds.  None of the proceeds of any Credit Extension hereunder shall be used for the purpose of purchasing or carrying any margin securities or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase any margin securities or for any other purpose not permitted by Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
 
5.6.        Employee Matters.  There are no controversies pending or threatened between any Loan Party or any Subsidiary of any Loan Party and any of its employees, agents or independent contractors other than employee grievances arising in the ordinary course of business which would not, in the aggregate, have a Material Adverse Effect, and each Loan Party and each Subsidiary of each Loan Party is in compliance with all federal and state laws applicable to such Person with respect to employment and employment terms, conditions and practices except for such non-compliance which would not have a Material Adverse Effect.
 
5.7.        Intellectual Property.
 
(a)          The Loan Parties are the sole owners or licensees of the Intellectual Property, except for (a) licenses permitted hereunder or granted by the Loan Parties to their customers in the ordinary course of business, (b) over the counter software that is commercially available to the public and (c) those agreements into which the Loan Parties have entered that provide for joint ownership of certain intellectual property rights created during the course of the engagement.  To the best of each Loan Party's knowledge, each of the Copyrights, Trademarks and Patents is valid and enforceable, and no part of the Intellectual Property has been judged invalid or unenforceable, in whole or in part, and, except as set forth in Section 5.7 of the Disclosure Schedules, no claim has been made to any Loan Party that it has infringed or misappropriated or is currently infringing or misappropriating the rights of any third party except to the extent such claim could not reasonably be expected to cause a Material Adverse Effect.  The applicable Loan Parties have taken commercially reasonable actions necessary to maintain and protect the Intellectual Property that is necessary in or material to the conduct of the business of any Loan Party, including taking reasonable measures to maintain the confidentiality of all such Intellectual Property that constitutes a trade secret under applicable law.
 
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(b)         Except as specifically disclosed in Section 5.7 of the Disclosure Schedules, to the knowledge of each Loan Party, no Person has infringed or misappropriated or is currently infringing or misappropriating any Intellectual Property rights owned or exclusively licensed by such Loan Party, except to the extent such claim could not reasonably be expected to cause a Material Adverse Effect.
 
(c)         Section 5.7 of the Disclosure Schedules sets forth a complete and accurate list of all Open Source Software in use by any Loan Party as of the Closing Date.  Each Loan Party's use of Open Source Software (i) is in full compliance with the terms of each applicable open source license and (ii) is in a manner that does not require or condition the use or distribution of any Loan Party's proprietary software on the disclosure, licensing, or distribution of any source code for any portion of the proprietary software, or otherwise impose an obligation to disclose or distribute any proprietary software on a royalty-free basis.
 
(d)         All employees and contractors of each Loan Party who were involved in the creation or development of any Intellectual Property for the benefit of or under the supervision of such Loan Party that is necessary in or material to the business of such Loan Party have signed agreements containing assignment of Intellectual Property rights to such Credit Party and obligations of confidentiality.
 
5.8.        Environmental Matters.  Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Loan Party or Subsidiary of any Loan Party has transported, manufactured, handled, produced or disposed of any Hazardous Materials, on or off its premises (whether or not owned by it) in any manner which would be reasonably likely to give rise to liability under, any applicable Environmental Law, and the operations of each Loan Party and each Subsidiary of each Loan Party comply in all material respects with all applicable Environmental Laws.  Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect there are no investigations, proceedings, complaints, orders, directives, claims, citations or notices by any governmental authority or any other Person pending or threatened with respect to any non-compliance with or violation of the requirements of any Environmental Law by any Loan Party or any Subsidiary of any Loan Party. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Loan Party or any Subsidiary of any Loan Party has material liability (contingent or otherwise) in connection with a release, spill or discharge, threatened or actual, of any Hazardous Materials or the generation, use, storage, treatment, transportation, manufacture, handling, production or disposal of any Hazardous Materials.
 
5.9.        Name; Location of Chief Executive Office.  Except as disclosed in Section 5.9 of the Disclosure Schedules or for which notice has been provided in accordance with Section 7.2, during the five years preceding the Closing Date, no Loan Party has done business under any name other than that specified on the signature page hereof, and its exact legal name is as set forth in the first paragraph of this Agreement.  The location where each Loan Party keeps its books, records and accounts (or copies thereof concerning the Collateral) and the chief executive office of each Loan Party are disclosed in Section 5.9 of the Disclosure Schedules.
 
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5.10.      Actions, Suits, Litigation, or Proceedings.  Except as set forth in Section 5.10 of the Disclosure Schedules, as of the Closing Date, there are no actions or proceedings pending by or against any Loan Party or any Subsidiary of any Loan Party before any court, administrative agency, or arbitrator or threatened in writing against such Loan Party or Subsidiary which could reasonably be expected to result in liabilities of any Loan Party or any Subsidiary of any Loan Party, either individually or in the aggregate in excess of Two Million Five Hundred Thousand Dollars ($2,500,000).  There are no such actions or proceedings in which a likely adverse decision would reasonably be expected to have a Material Adverse Effect.  No Loan Party has any Commercial Tort Claims pending that, individually or in the aggregate for all Loan Parties, have a value or involve an asserted claim in excess of Two Million Five Hundred Thousand Dollars ($2,500,000) other than (a) those set forth in Section 5.10 of the Disclosure Schedules (as such schedule may be updated from time to time in writing by any Loan Party to Bank).
 
5.11.      No Material Adverse Change in Financial Statements.  All consolidated financial statements related to Borrower that are delivered by to Bank hereunder (including those delivered prior to the Closing Date) have been prepared in accordance with GAAP consistently applied throughout the period covered thereby and fairly present in all material respects Borrower's consolidated financial condition as of the date thereof and Borrower's consolidated results of operations for the period then ended.  There has not been a material adverse change in the consolidated financial condition of Borrower since the date of the most recent of such financial statements submitted to Bank.
 
5.12.      Solvency, Payment of Debts.  As of the Closing Date and after giving effect to the Merger and the Credit Extension hereunder and the use of proceeds thereof, (a) at fair valuations, the sum of the debt (including contingent liabilities) of Borrower and its Subsidiaries, taken as a whole, does not exceed the fair value of the assets (on a going concern basis) of Borrower and its Subsidiaries, taken as a whole, (b) the capital of Borrower and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of Borrower and its Subsidiaries, taken as a whole, contemplated as of Closing Date and (c) Borrower and its Subsidiaries, taken as a whole, have not incurred, do not intend to incur, or reasonably believe that they will incur debt beyond their ability to pay such debt as they mature in the ordinary course of business and such Person is "solvent" or not "insolvent", as applicable within the meaning given those terms and similar terms under applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
 
5.13.      Compliance with Laws and Regulations.  Each Loan Party and each Subsidiary of each Loan Party has met the minimum funding requirements of ERISA with respect to any employee benefit plans subject to ERISA.  No event has occurred resulting from any Loan Party's or any of their Subsidiaries' failure to comply with ERISA that is reasonably likely to result in such Loan Party's or such Subsidiary's incurring any liability that could reasonably be expected to have a Material Adverse Effect.  No Loan Party or a Subsidiary of a Loan Party is an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940.  No Loan Party or Subsidiary of a Loan Party is engaged principally, or as one of the important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System).  Each Loan Party and each Subsidiary of each Loan Party has complied in all material respects with all the provisions of the Federal Fair Labor Standards Act.  Each Loan Party and each Subsidiary of each Loan Party is in compliance with all environmental laws, regulations and ordinances except where the failure to comply is not reasonably likely to have a Material Adverse Effect.  No Loan Party or Subsidiary of a Loan Party has violated any Requirements of Law applicable to it, the violation of which could reasonably be expected to have a Material Adverse Effect.  Borrower and each Subsidiary have filed or caused to be filed all tax returns required to be filed, and have paid, or have made adequate provision for the payment of, all taxes reflected therein except in each case those being contested in good faith with adequate reserves under GAAP or where the failure to file such returns or pay such taxes could not reasonably be expected to have a Material Adverse Effect.
 
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5.14.       SubsidiariesSchedule 5.14 to the Disclosure Schedules sets forth, in each case as of the Closing Date, (a) a correct and complete list of the name of each direct and indirect Subsidiary of the Loan Parties, (b) the ownership interest therein held by such Loan Party or its applicable Subsidiary, and (c) the amount of ownership interest pledged by any Loan Party in such Subsidiary. The outstanding equity interests of each Subsidiary of Holdings are validly issued, and, if such Subsidiary is a corporation, such equity interests are fully paid and non-assessable.
 
5.15.     Government Consents.  Each Loan Party and each Subsidiary of each Loan Party has obtained all consents, approvals and authorizations of, made all declarations or filings with, and given all notices to, all governmental authorities that are necessary for the continued operation of such Loan Party's or such Subsidiary's business as currently conducted, except where the failure to do so would not reasonably be expected to cause a Material Adverse Effect.
 
5.16.      Shares.  Borrower has full power and authority to create a first lien on the Shares Collateral and no disability or contractual obligation exists that would prohibit any Loan Party from pledging the Shares Collateral pursuant to this Agreement.  To each Loan Party's knowledge, there are no subscriptions, warrants, rights of first refusal or other restrictions on transfer relative to, or options exercisable with respect to the Shares Collateral.  The Shares Collateral have been and will be duly authorized and validly issued, and are fully paid and non-assessable (to the extent such concept is applicable).  To each Loan Party's knowledge, the Shares Collateral are not the subject of any present or threatened suit, action, arbitration, administrative or other proceeding, and no Loan Party knows of any reasonable grounds for the institution of any such proceedings.
 
5.17.      Full Disclosure.  No representation, warranty or other statement made by any Loan Party in any certificate or written statement furnished to Bank taken together with all such certificates and written statements furnished to Bank contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained in such certificates or statements not misleading in any material respect at such time in light of the circumstances under which such certifications or statements are made (after giving effect to all supplements and updates thereto at the time of such certificate or written statement), it being recognized by Bank that the projections and forecasts provided by Borrower in good faith and based upon reasonable assumptions are not to be viewed as facts and that actual results during the period or periods covered by any such projections and forecasts may differ from the projected or forecasted results.
 
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5.18.      [Reserved].
 
5.19.      Anti-Money-Laundering and Economic Sanctions Laws.
 
(a)          To the extent applicable, each Loan Party and each of its Subsidiaries is in compliance with (i) the Patriot Act in all material respects and (ii) any applicable anti-money laundering laws or any applicable Sanctions or Requirements of Law that in each case are binding on them, except in the case of this clause (ii) where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect.  To the knowledge of each Loan Party, none of the Loan Parties, their respective Subsidiaries or their respective officers or directors is an Embargoed Person.
 
(b)          No part of the proceeds of the Loans will be used, directly or, to the knowledge of management of any Loan Party, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.
 
(c)          None of the Loan Parties or their respective Subsidiaries or, to the knowledge of any of their respective officers and directors, will directly or indirectly use any proceeds of the Loans or lend, contribute or otherwise make available such proceeds to any Person for the purpose of financing the activities of or with any Person or in any country or territory that, at the time of funding, is an Embargoed Person.
 
5.20.      [Reserved].
 
5.21.      ERISA Matters.  Except as set forth in Section 5.21 of the Disclosure Schedules, neither any Loan Party nor any ERISA Affiliate maintains or has maintained or has liability to contribute to any Pension Plan or Multiemployer Plan. Except as could reasonably be expected to have a Material Adverse Effect, (a) each Plan is in compliance with, and has been operated in accordance with, all applicable laws, including ERISA and the IRC, and the terms of such Plan, and no Loan Party has liability for any fine, penalty, excise tax, or damage with respect to any Plan, (b) no Reportable Event exists in connection with any Pension Plan, and (c) each Plan that is intended to qualify under the IRC is so qualified, and no fact or circumstance exists which may have an adverse effect on the Plan's tax qualified status.  Neither any Loan Party nor any ERISA Affiliate has (i) any accumulated funding deficiency (as defined in ERISA) under any Plan, whether or not waived or (ii) any liability for any withdrawal, partial withdrawal, insolvency, or other event under any Multiemployer Plan.
 
5.22.      Taxes.  Each Loan Party and its Subsidiaries has filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect or result in the imposition of a Lien on the assets of any assets of any Loan Party.  There are no Liens for Taxes on the assets of any Loan Party or any Subsidiary thereof, other than Liens for Taxes not yet due and payable.
 
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5.23.      Investor Rights Agreements; Warrant.  As of the Closing Date, the Loan Parties have delivered to the Bank true, correct and complete copies of the Investors' Rights Agreement and the Warrant, and, in each case, any amendments, restatements, amendments and restatements, supplements or other modifications thereto.  From and after the closing of the Merger, and notwithstanding any reference in the Warrant to the Investors' Rights Agreement, no provision of the Investors' Rights Agreement remains operative and IsoPlexis will have no further obligations under the Investors' Rights Agreement or the Put Agreement.  As of the Closing Date, no Person has any put right or similar right on the stock of any Loan Party.
 
6.           AFFIRMATIVE COVENANTS.
 
Each Loan Party covenants that, until the Obligations have been Paid in Full and for so long as Bank may have any commitment to make a Credit Extension hereunder, each Loan Party shall, and shall cause each of its Subsidiaries to, do all of the following:
 
6.1.      Good Standing and Government Compliance.  Borrower shall maintain its organizational existence and good standing in the Borrower State, shall maintain qualification and good standing in each other jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Effect, and shall furnish to Bank the organizational identification number issued to Borrower by the authorities of the jurisdiction in which Borrower is organized, if applicable.  Each Loan Party other than Borrower and each Subsidiary of a Loan Party shall maintain its organizational existence and good standing in its jurisdiction of organization, shall maintain qualification and good standing in each other jurisdiction in which the failure to so qualify could have a Material Adverse Effect, and shall furnish to Bank the organizational identification number issued to such Loan Party or Subsidiary by the authorities of the jurisdiction in which such Loan Party or Subsidiary is organized, if applicable.  Each Loan Party shall meet, and shall cause each Subsidiary of each Loan Party to meet, the minimum funding requirements of ERISA with respect to any employee benefit plans subject to ERISA.  Each Loan Party and each Subsidiary of each Loan Party shall comply in all material respects with all applicable Environmental Laws, and maintain all material permits, licenses and approvals required thereunder where the failure to do so could reasonably be expected to have a Material Adverse Effect.  Each Loan Party shall comply, and shall cause each Subsidiary of each Loan Party to comply, with all Requirements of Law to which it is subject, and shall maintain, and shall cause each of its Subsidiaries to maintain, in force all licenses, approvals and agreements, in each case the loss of which or failure to comply with which would reasonably be expected to have a Material Adverse Effect.
 
6.2.        Financial Statements, Reports, Certificates.  The Loan Parties shall deliver to Bank:
 
(a)          Quarterly Financial Statements.  As soon as available, but in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, a company prepared consolidated balance sheet, statement of cash flows, and profit and loss statement covering Borrower's operations during such period, in a form reasonably acceptable to Bank and accompanied by a Responsible Officer Certification (which may be included in the applicable Compliance Certificate);
 
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(b)       Annual Audited Financial Statements.  As soon as available, but in any event within ninety (90) days after the end of Borrower's fiscal year, audited consolidated financial statements of the Loan Parties and their Subsidiaries prepared in accordance with GAAP, consistently applied, together with an unqualified opinion (including no going-concern qualification) of KPMG LLP or such other independent certified public accounting firm or other accounting firm as may be reasonably acceptable to Bank and without any qualification or exception as to the scope of such audit;
 
(c)          Compliance Certificate.  Together with the financial statements delivered pursuant to clauses (a) and (b) above, commencing with the fiscal quarter ending March 31, 2023, Borrower shall deliver to Bank a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto;
 
(d)          [Reserved].
 
(e)          Annual Operating Budget and Financial Projections.  As soon as available, but in any event not later than ninety (90) days after the beginning of each fiscal year, commencing with the fiscal year ending December 31, 2024, Borrower's consolidated budget for such fiscal year (broken down by fiscal quarter), which budget has been approved by Borrower's board of directors;
 
(f)         Security Holder and Subordinated Debt Holder Reports.  If applicable, copies of all statements, reports and notices sent or made available generally by Borrower to its security holders or to any holders of Subordinated Debt (excluding any materials provided to such security holders, stockholders, or holders of Subordinated Debt solely in their capacity as members of Borrower's board of directors) and all reports on Forms 10-K and 10-Q filed with the Securities and Exchange Commission.
 
(g)          Legal Action Notice.  Promptly upon receipt of notice thereof, a report of any legal actions pending or threatened against any Loan Party or any Subsidiary of any Loan Party that could result in damages or costs to any Loan Party or any Subsidiary of any Loan Party of Five Hundred Thousand Dollars ($500,000.00) or more.
 
(h)          Default.  As soon as possible and in any event within three (3) Business Days after becoming aware of the occurrence or existence of an Event of Default hereunder, a written statement of a Responsible Officer setting forth details of the Event of Default, and the action which the Loan Parties have taken or propose to take with respect thereto; provided, that Borrower shall immediately notify Bank of the commencement of any Insolvency Proceeding.
 
(i)          Audit.  Bank shall have a right, upon reasonable prior notice, from time to time hereafter to audit each Loan Parties' Accounts and appraise Collateral at Borrower's expense, provided that such audits will be conducted during normal business hours and no more often than once every twelve (12) months unless an Event of Default has occurred and is continuing and with no less than fifteen (15) days' notice of such audit request; provided that the audit carried out pursuant to this Section 6.2(i) shall be carried out without duplication of the inspection provided for pursuant to Section 4.3.
 
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(j)          [Reserved].
 
(k)          Promptly following any request therefor by Bank, each Loan Party shall provide information and documentation reasonably requested by Bank for purposes of compliance with applicable "know your customer" requirements under the PATRIOT Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws, including but not limited to a Beneficial Ownership Certification form acceptable to Bank.
 
(l)           Promptly following request therefor by Bank, such other business or financial information as Bank may reasonably request.
 
The Loan Parties may deliver to Bank on an electronic basis any certificates, reports or information required pursuant to this Section 6.2, and Bank shall be entitled to rely on the information contained in the electronic files, provided that Bank in good faith believes that the files were delivered by a Responsible Officer.  To the extent any such documents are included in materials otherwise filed with the SEC, such documents shall be deemed to have been delivered on the date on which Borrower or any of its Subsidiaries posts such documents, or provides a link thereto, on Borrower's or any of its Subsidiaries' website on the internet at Borrower's or any of its Subsidiaries' website address; provided, however, Borrower shall promptly notify Bank in writing (which may be by electronic mail) of the posting of any such documents.
 
6.3.        [Reserved].
 
6.4.      Taxes.  Each Loan Party shall make, and cause each of its Subsidiaries to make, due and timely payment or deposit of all material federal, state, and local taxes, assessments, or contributions required of it by law, including, but not limited to, those laws concerning income taxes, F.I.C.A., F.U.T.A. and state disability, and will execute and deliver to Bank, on demand, proof reasonably satisfactory to Bank indicating that such Loan Party or a Subsidiary of a Loan Party has made such payments or deposits and any appropriate certificates attesting to the payment or deposit thereof; provided that no Loan Party or Subsidiary of a Loan Party need make any payment if the amount or validity of such payment is contested in good faith by appropriate proceedings and is reserved against (to the extent required by GAAP) by such Loan Party or such Subsidiary.
 
6.5.        Insurance.
 
(a)          Each Loan Party shall, and shall cause each of its Subsidiaries to, at its expense, keep the Collateral insured against loss or damage by fire, theft, explosion, sprinklers, and all other hazards and risks, and in such amounts, as is customarily insured against by other owners in similar businesses conducted in the locations where such Loan Party's or such Subsidiary's business is conducted on the date hereof.  Each Loan Party shall, and shall cause each of its Subsidiaries to, also maintain liability and other insurance in amounts and of a type that are customary to businesses similar to such Loan Party's or such Subsidiary's business.
 
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(b)          All such policies of insurance shall be in such form, with such companies, and in such amounts as reasonably satisfactory to Bank.  All policies of property insurance shall contain a lender's loss payable endorsement, in a form reasonably satisfactory to Bank, showing Bank as a lender's loss payee, and all liability insurance policies shall show Bank as an additional insured and specify that the insurer must give at least twenty (20) days' notice to Bank before canceling its policy for any reason (10 days' notice for cancellation for reason of non-payment of premiums).  All policies of insurance shall be addressed to Bank as follows: East West Bank, its successors and assigns, 135 North Robles Avenue, 2nd Floor, Pasadena, California 91101.  Upon Bank's request, Borrower shall deliver to Bank certified copies of the policies of insurance and evidence of all premium payments.  All proceeds payable under any such policy shall, at Bank's option, be payable to Bank to be applied on account of the Obligations.
 
6.6.        Deposit Accounts; Securities Accounts.
 
(a)          Subject to Section 6.16, each Loan Party shall maintain its primary depository relationship with Bank, including general operating and administrative deposit accounts, cash management services, and its primary investment accounts (covered by reasonably satisfactory control agreements).
 
(b)         Subject to Section 6.16, (i) Borrower shall cause at least ninety percent (90%) of the cash and cash equivalents of Borrower and its Subsidiaries to be held in deposit or investment accounts maintained with Bank at all times, and (ii) the Loan Parties shall not maintain Deposit Accounts or Securities Accounts with any other bank or securities intermediary located within the United States (other than that certain Securities Account maintained with Morgan Stanley Smith Barney LLC, as of the Closing Date that has been previously disclosed to Bank).
 
(c)          Subject to Section 6.16, all Deposit Accounts and Securities Accounts of the Loan Parties shall be subject to control agreements in form and content reasonably acceptable to Bank (other than (i) Excluded Accounts and (ii) Deposit Accounts that are subject to an assignment of deposit as contemplated by Section 6.7(b)); provided, however, that the Loan Parties may maintain Deposit Accounts at branch offices of a bank or securities intermediary located outside the United States that are not subject to control agreements so long as the aggregate balances of all such Deposit Accounts located outside the United States not subject to a control agreement do not exceed Three Million Dollars ($3,000,000) at any time.
 
6.7.        Financial Covenants.  The Loan Parties shall at all times maintain the following ratios and covenants:
 
(a)         Remaining Months Liquidity.  Have Remaining Months Liquidity of at least 4.00 to 1.00, measured as of the last day of each fiscal quarter; provided, however, that if the Loan Parties are out of compliance with such Remaining Months Liquidity requirement, it shall not be an Event of Default or a breach of this Section 6.7 if each Loan Party, within ten (10) Business Days of falling out of compliance (the "IP Trigger Milestone"), executes an Amendment to Loan and Security Agreement (in a form to be mutually agreed among the parties thereto) and Intellectual Property Security Agreement (in substantially the form attached hereto as Exhibit F) in order to provide Bank with a perfected first priority security interest on each Loan Party's Intellectual Property. Furthermore, if after falling out of compliance and entering into the aforementioned documents, Borrower achieves Remaining Months Liquidity of at least 10.00 to 1.00 (the "IP Release Milestone"), Bank agrees to execute the necessary documents required to release such perfected first priority security interest on each Loan Party's Intellectual Property.
 
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(b)         Minimum Unrestricted Cash.  Maintain unrestricted cash and cash equivalents of the Loan Parties of not less than Seventy Million Dollars ($70,000,000) in the aggregate at all times, all of which shall be held in a Deposit Accounts of one or more Loan Parties maintained with Bank that are not Excluded Accounts and are subject to an assignment of deposit in form and substance satisfactory to Bank (it being acknowledged and agreed by Bank that the form of Assignment of Deposit executed and delivered on the Closing Date is satisfactory).
 
(c)          Minimum EBITDA.  During any Covenant Testing Period, maintain EBITDA, measured on the last day of each quarter, for the one-quarter period ending on such date, of at least the amount set forth in the following table for the one-quarter period ending on the date set forth opposite thereto:
 

Applicable Amount

Quarter Ending

($25,000,000)

March 31, 2023

($14,500,000)

June 30, 2023

($9,168,000)

September 30, 2023

($4,651,000)

December 31, 2023

($659,000)

March 31, 2024

($131,000)

June 30, 2024

$467,000

September 30, 2024

$4,071,000

December 31, 2024

$5,275,000

March 31, 2025

$4,981,000

June 30, 2025

$5,505,000

September 30, 2025

$7,260,000

December 31, 2025

$6,057,000

March 31, 2026

$7,983,000

June 30, 2026

$11,887,000

September 30, 2026

$15,576,000

December 31, 2026

$14,190,000

March 31, 2027

$15,486,000

June 30, 2027

$21,441,000

September 30, 2027
 
$30,268,000

December 31, 2027 and each March 31, June 30, September 30 and December 31 thereafter

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6.8.        Registration of Intellectual Property Rights.
 
(a)          Borrower shall register or cause to be registered (to the extent not already registered) with the United States Patent and Trademark Office or the United States Copyright Office, as the case may be, those registrable intellectual property rights now owned or hereafter developed or acquired by Borrower, to the extent that Borrower, in its reasonable business judgment, deems it appropriate to so protect such intellectual property rights.
 
(b)          Borrower shall, in the then-next Compliance Certificate, give Bank written notice of any applications or registrations of intellectual property rights filed with the United States Patent and Trademark Office, including the date of such filing and the registration or application numbers, if any.
 
(c)          Borrower shall give Bank prompt written notice of the filing of any applications or registrations with the United States Copyright Office, including the title of such intellectual property rights to be registered, as such title will appear on such applications or registrations, and the date such applications or registrations will be filed.
 
(d)         Borrower shall (i) protect, defend and maintain the validity and enforceability of the Trademarks, Patents, Copyrights, and trade secrets that have any material value, (ii) subject to any applicable attorney-client privilege, use commercially reasonable efforts to detect infringements of the Trademarks, Patents and Copyrights that have any material value and promptly advise Bank in writing of material infringements detected, (iii) not allow any Trademarks, Patents or Copyrights that are material to the business of Borrower and its Subsidiaries to be abandoned, forfeited or dedicated to the public without the written consent of Bank, which shall not be unreasonably withheld and (iv) require all employees, consultants, and contractors of each Loan Party who were involved in the creation or development of such Intellectual Property to sign agreements containing assignment of Intellectual Property rights and obligations of confidentiality.
 
(e)          Each Loan Party's use of Open Source Software shall be (i) in full compliance with the terms of each applicable open source license and (ii) in a manner that does not require or condition the use or distribution of any Loan Party's proprietary software on the disclosure, licensing, or distribution of any source code for any portion of the proprietary software, or otherwise impose an obligation to disclose or distribute any proprietary software on a royalty-free basis.
 
6.9.      Notice for Inbound Licenses.  In the then-next Compliance Certificate after entering into or becoming bound by any inbound license or agreement (other than off-the-shelf software that is commercially available to the public) that is material or necessary to the conduct of the business of Borrower and its Subsidiaries, Borrower shall provide written notice to Bank of the material terms of such license or agreement with a description of its likely impact on Borrower's business or financial condition.
 
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6.10.      Creation/Acquisition of Subsidiaries.  In the event Borrower or any Subsidiary creates or acquires any Domestic Subsidiary, Borrower and such Subsidiary shall notify Bank in the then-next Compliance Certificate after the creation or acquisition of such new Subsidiary and take all such action as may be reasonably required by Bank to cause each such Domestic Subsidiary to guarantee the Obligations of Borrower under the Loan Documents and grant a continuing pledge and security interest in and to the collateral of such Subsidiary (substantially as described on Exhibit B hereto), and Borrower (or the applicable Subsidiary) shall grant and pledge to Bank a perfected security interest in the Shares of each Subsidiary (whether foreign or domestic).
 
6.11.       [Reserved].
 
6.12.      Further Assurances.  At any time and from time to time each Loan Party shall execute and deliver such further instruments and take such further action as may reasonably be requested by Bank to effect the purposes of this Agreement.
 
6.13.      Interest Rate Protection.  Subject to Section 6.16, Borrower shall at all times be party to Hedging Agreements satisfactory to Bank for interest rate protection with respect to not less than seventy-five percent (75%) of the Term Loan for a period of not less than one (1) year and shall keep such Hedging Agreements in full force and effect at all times during such period.
 
6.14.      Patriot Act, Bank Secrecy Act and Office of Foreign Assets Control.  As required by federal law and Bank's policies and practices, Bank may need to obtain, verify and record certain customer identification information and documentation in connection with opening or maintaining accounts, or establishing or continuing to provide services and each Loan Party agrees, and shall cause each of its Subsidiaries to provide such information.  In addition, and without limiting the foregoing sentence, each Loan Party shall not use or permit the use of the proceeds of the Loans to violate any of the foreign asset control regulations of OFAC or any enabling statute or Executive Order relating thereto, and comply, and cause each Subsidiary to comply, with all applicable Bank Secrecy Act (P.L. 91-508, 84 Stat. 118) (1970) (the "BSA") and the PATRIOT Act and any regulations under the BSA or the PATRIOT Act.
 
6.15.      Bank Meetings.  Promptly following the delivery of financial statements pursuant to Section 6.2(a) and 6.2(b) or, if earlier, the filing of each Form 10-K and 10-Q filed with the Securities and Exchange Commission, Borrower will hold, at times during normal business hours to be mutually agreed between Borrower and Bank, a conference call with Bank at which meeting the parties shall review the financial results of the Loan Parties and their Subsidiaries presented in the applicable financial statements and the financial condition of the Loan Parties and their Subsidiaries.
 
6.16.      Post-Closing Obligations.  Within the time periods specified under the heading "Post-Closing Obligations" of the Post-Closing Schedule (or such longer period of time as may be agreed to by Bank in writing in its sole discretion), Borrower shall execute and deliver the documents to Bank, and complete such undertakings, as are set forth on such schedule.
 
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7.           NEGATIVE COVENANTS.
 
Each Loan Party covenants and agrees that, until the Obligations are Paid in Full or for so long as Bank may have any commitment to make any Credit Extensions, no Loan Party, and no Subsidiary of any Loan Party will do any of the following without Bank's prior written consent, which shall not be unreasonably withheld:
 
7.1.       Dispositions.  Convey, sell, lease, license, transfer or otherwise dispose of (collectively, to "Transfer"), or permit any Loan Party or any of its Subsidiaries to Transfer, all or any part of its business or property, or subject to Section 6.6 of the Agreement, move cash balances on deposit with Bank to accounts opened at another financial institution, other than Permitted Transfers; provided that it is understood and agreed that, to the extent that any Collateral is Transferred as expressly permitted by this Section 7.1 to any Person that is not a Loan Party and Borrower has delivered to Bank, a certificate of a Responsible Officer of Borrower as to such Transfer being made in compliance with this Section 7.1, such Collateral shall be Transferred of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Transfer; it being understood and agreed that Bank shall be authorized to take, and shall take any actions reasonably requested by Borrower in order to effect the foregoing.
 
7.2.        Change in Name, Location, Executive Office, or Executive Management; Change in Business; Change in Fiscal Year; Change in Control.  In the case of Borrower, change its name or the Borrower State or relocate its chief executive office without thirty (30) days' prior written notification to Bank; in the case of any Loan Party (other than Borrower) or any Subsidiary of any Loan Party, change its name or state of organization or relocate its chief executive office without thirty (30) days written notification to Bank; engage in any business, or permit any of its Subsidiaries to engage in any business, other than or reasonably related or incidental to the businesses currently engaged in by Borrower; change its fiscal year end; have a Change in Control.
 
7.3.      Mergers or Acquisitions.  Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with or into any other business organization (other than mergers or consolidations of a Subsidiary into another Subsidiary that is a Loan Party or into Borrower (or in the case of Subsidiaries that are not Loan Parties, into another Subsidiary that is not a Loan Party)), or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the Capital Stock or property of another Person except where (i) such transactions do not in the aggregate exceed One Hundred Thousand Dollars ($100,000) during any fiscal year, (ii) no Event of Default has occurred, is continuing or would exist after giving effect to such transactions, (iii) such transactions do not result in a Change in Control, and (iv) Borrower is the surviving entity.
 
7.4.        Indebtedness.  Create, incur, assume, guarantee or be or remain liable with respect to any Indebtedness, or permit any Subsidiary so to do, other than Permitted Indebtedness, or prepay any Indebtedness or take any actions which impose on Borrower an obligation to prepay any Indebtedness prior to the scheduled maturity or due date, except Indebtedness to Bank.
 
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7.5.       Encumbrances.  Create, incur, assume or allow any Lien with respect to any of its property, or assign or otherwise convey any right to receive income, including the sale of any Accounts, or permit any of its Subsidiaries so to do, except for Permitted Liens, or covenant to any other Person (other than (i) the licensors of in-licensed property with respect to such property or (ii) the lessors of specific equipment or lenders financing specific equipment with respect to such leased or financed equipment) that any Loan Party or any Subsidiary in the future will refrain from creating, incurring, assuming or allowing any Lien with respect to any of such Loan Party's or such Subsidiary's property.
 
7.6.       Distributions.  Pay any dividends or make any other distribution or payment on account of or in redemption, retirement or purchase of any Capital Stock, except that Borrower may (i) repurchase the stock of former employees, consultants or directors in an aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in any fiscal year, pursuant to stock repurchase agreements as long as an Event of Default does not exist prior to such repurchase or would not exist after giving effect to such repurchase, (ii) repurchase the stock of former employees, consultants or directors pursuant to stock repurchase agreements in any amount where the consideration for the repurchase is the cancellation of indebtedness owed by such former employees , consultants or directors to Borrower regardless of whether an Event of Default exists, (iii) make dividends or distributions solely in the common stock of Borrower; (iv) convert any of its equity or Subordinated Debt securities into other equity or Subordinated Debt securities pursuant to the terms of such securities or otherwise in exchange therefore; (v) purchase Capital Stock in connection with the exercise of stock options or stock appreciation by way of a cashless exercise, provided that such purchases do not in the aggregate exceed Two Hundred Fifty Thousand Dollars ($250,000) per fiscal year and (vi) purchase fractional shares of Capital Stock arising out of stock dividends, splits or combinations or business combinations in an amount not to exceed Fifty Thousand Dollars ($50,000) per fiscal year.
 
7.7.        Investments.  Directly or indirectly acquire or own, or make any Investment in or to any Person, or permit any of its Subsidiaries to do so, other than Permitted Investments, or, subject to the requirements of Section 6.6, maintain or invest any of its Investment Property with a Person other than Bank or Bank's Affiliates or permit any Subsidiary to do so unless such Person has entered into a control agreement with Bank, in form and substance satisfactory to Bank, or suffer or permit any Subsidiary to be a party to, or be bound by, an agreement that restricts such Subsidiary from paying dividends or otherwise distributing property to Borrower. Further, no Loan Party or any Subsidiary shall enter into any license or agreement with any Prohibited Territory or with any Person organized under or doing business in a Prohibited Territory.
 
7.8.        Transactions with Affiliates.  Directly or indirectly enter into or permit to exist any material transaction with any Affiliate of Borrower except for (i) transactions that are in the ordinary course of Borrower's business, upon fair and reasonable terms that are no less favorable to Borrower than would be obtained in an arm's length transaction with a non-affiliated Person, (ii) the sale or issuance of Borrower's equity securities in a bona fide equity investment round to investors, (iii) Subordinated Debt and (iv) compensation arrangements on fair and reasonable terms approved by Borrower's board of directors.
 
7.9.        Subordinated Debt.  Make any payment in respect of any Subordinated Debt, or permit any of its Subsidiaries to make any such payment, except in compliance with the terms of such Subordinated Debt and the terms of the subordination agreement relating to such Subordinated Debt, or amend any provision of any document evidencing such Subordinated Debt, except in compliance with the terms of the subordination agreement relating to such Subordinated Debt, or amend any provision affecting Bank's rights contained in any documentation relating to the Subordinated Debt without Bank's prior written consent.
 
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7.10.      Inventory and Equipment.  Other than Inventory and Equipment at customer sites, store the Inventory or the Equipment having a book value in excess of Five Hundred Thousand Dollars ($500,000) with a bailee, warehouseman, or similar third party unless the third party has been notified of Bank's security interest and (a) the applicable Loan Party has used commercially reasonable efforts to obtain an acknowledgment from the third party that it is holding or will hold the Inventory or Equipment for Bank's benefit or (b) Bank is in possession of the warehouse receipt, where negotiable, covering such Inventory or Equipment.  Except for Inventory sold in the ordinary course of business and for movable items of personal property having book value not in excess of Five Hundred Thousand Dollars ($500,000), and except for such other locations as Bank may approve in writing, each Loan Party shall keep the Inventory and Equipment only at the location set forth in Section 10 and such other locations of which Borrower gives Bank written notice and as to which Bank files a financing statement where needed to perfect its security interest.
 
7.11.     No Investment Company; Margin Regulation.  Become or be controlled by an "investment company," within the meaning of the Investment Company Act of 1940, or become principally engaged in, or undertake as one of its important activities, the business of extending credit for the purpose of purchasing or carrying margin stock, or use the proceeds of any Credit Extension for such purpose.
 
8.           EVENTS OF DEFAULT.
 
The occurrence of any one or more of the following events shall constitute an Event of Default by Borrower under this Agreement:
 
8.1.        Payment Default.  If Borrower fails to pay any of the Obligations when due;
 
8.2.        Covenant Default.
 
(a)          (i) If any Loan Party fails to perform any obligation under Sections 6.2, 6.4, 6.5, 6.6, 6.7(a) (after giving effect to the grace period set forth therein), 6.7(b), 6.7(c), 6.8, 6.11, 6.12, 6.13, 6.14, or 6.16 (after giving effect to any extensions provided by Bank pursuant to such Section 6.16) or violates any of the covenants contained in Article 7 of this Agreement or (ii) if any Loan Party fails to perform any obligation under Section 6.1 (solely if any Loan Party fails to maintain its organizational existence); or
 
(b)        If any Loan Party fails or neglects to perform or observe any other material term, provision, condition, covenant contained in this Agreement, in any of the Loan Documents, and as to any default under such other term, provision, condition or covenant that can be cured, has failed to cure such default within thirty (30) days after Borrower receives notice thereof or any Responsible Officer  of Borrower becomes aware thereof;
 
8.3.       Material Adverse Change.  If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect;
 
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8.4.       Attachment.  If any material portion of any Loan Party's assets is attached, seized, subjected to a writ or distress warrant, or is levied upon, or comes into the possession of any trustee, receiver or person acting in a similar capacity and such attachment, seizure, writ or distress warrant or levy has not been removed, discharged or rescinded within ten (10) days, or if any Loan Party is enjoined, restrained, or in any way prevented by court order from continuing to conduct all or any material part of its business affairs, or if a judgment or other claim becomes a lien or encumbrance upon any material portion of any Loan Party's assets, or if a notice of lien, levy, or assessment is filed of record with respect to any material portion of any Loan Parties assets by the United States Government, or any department, agency, or instrumentality thereof, or by any state, county, municipal, or governmental agency, and the same is not paid within ten (10) days after Borrower receives notice thereof, provided that none of the foregoing shall constitute an Event of Default where such action or event is stayed or an adequate bond has been posted pending a good faith contest by the applicable Loan Party (provided that no Credit Extensions will be made during such cure period);
 
8.5.      Insolvency.  If any Loan Party becomes insolvent, or if an Insolvency Proceeding is commenced by any Loan Party, or if an Insolvency Proceeding is commenced against any Loan Party and is not dismissed or stayed within forty-five (45) days (provided that no Credit Extensions will be made prior to the dismissal of such Insolvency Proceeding);
 
8.6.        Other Agreements.  If there is an uncured default or other uncured failure to perform in any agreement to which any Loan Party is a party with a third party or parties resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount in excess of Three Hundred Thousand Dollars ($300,000) or that would reasonably be expected to have a Material Adverse Effect;
 
8.7.       Subordinated Debt.  If any Loan Party or any other Person on behalf of a Loan Party makes any payment on account of Subordinated Debt, except to the extent the payment is allowed under any subordination agreement entered into with Bank;
 
8.8.        Judgments.  If one or more judgments, orders, or decrees for the payment of money in an amount, individually or in the aggregate, of at least One Million Dollars ($1,000,000) (not covered by independent third-party insurance as to which liability has been accepted by such insurance carrier) shall be rendered against any Loan Party or any Subsidiary of any Loan Party, or any Loan Party or any Subsidiary of any Loan Party enters into a settlement agreement with respect to any action or proceeding pending against any Loan Party or any Subsidiary of a Loan Party before any court or administrative agency or threatened in writing that involves the payment of consideration by such Loan Party or Subsidiary, individually or in the aggregate, of One Million Dollars ($1,000,000) or more.
 
8.9.        Misrepresentations.  If any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation set forth herein or in any certificate delivered to Bank by any Responsible Officer pursuant to this Agreement or to induce Bank to enter into this Agreement or any other Loan Document.
 
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8.10.      Guaranty.  If the Guaranty is limited (other than any limitations expressly set forth therein) or ceases for any reason to be in full force and effect (for any reason other than Payment in Full of the Obligations and the termination of the commitment of Bank, if any, to make Credit Extensions), or any Guarantor fails to perform any obligation under the Guaranty or any Guarantor repudiates, revokes or purports to repudiate or revoke the Guaranty.
 
9.           BANK'S RIGHTS AND REMEDIES.
 
9.1.       Rights and Remedies. Upon the occurrence and during the continuance of an Event of Default, Bank may, at its election, without notice of its election and without demand, do any one or more of the following, all of which are authorized by each Loan Party:
 
(a)          Declare all Obligations, whether evidenced by this Agreement, by any of the other Loan Documents, or otherwise, immediately due and payable (provided that upon the occurrence of an Event of Default described in Section 8.5 (insolvency), all Obligations shall become immediately due and payable without any action by Bank);
 
(b)        Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement or under any other agreement between Borrower and Bank;
 
(c)          (i) enforce collection of any of such Loan Party's Accounts or other amounts owed to such Loan Party by suit or otherwise; (ii) exercise all of such Loan Party's rights and remedies with respect to proceedings brought to collect any Accounts or other amounts owed to such Loan Party; (iii) surrender, release or exchange all or any part of any Accounts or other amounts owed to such Loan Party, or compromise or extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder; (iv) sell or assign any Account of such Loan Party or other amount owed to such Loan Party upon such terms, for such amount and at such time or times as Bank deems advisable; (v) prepare, file and sign such Loan Party's name on any proof of claim in bankruptcy or other similar document against any Account Debtor or other Person obligated to such Loan Party; (vi) do all other acts and things which are necessary, in Bank's sole discretion, to fulfill such Loan Party's obligations under the Loan Documents and to allow Bank to collect the Accounts or other amounts owed to such Loan Party; (vii) at such Loan Party's expense, notify any parties obligated on any of the Accounts to make payment directly to Bank of any amounts due or to become due thereunder; (viii) settle or adjust disputes and claims directly with account debtors for amounts, upon terms and in whatever order Bank reasonably considers advisable;
 
(d)          Make such payments and do such acts as Bank considers necessary or reasonable to protect its security interest in the Collateral.  Each Loan Party agrees to assemble the Collateral if Bank so requires, and to make the Collateral available to Bank as Bank may designate.  Each Loan Party authorizes Bank to enter the premises where the Collateral is located, to take and maintain possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any encumbrance, charge, or lien which in Bank's determination appears to be prior or superior to its security interest and to pay all expenses incurred in connection therewith.  With respect to Loan Party's owned premises, each Loan Party hereby grants Bank a license to enter into possession of such premises and to occupy the same, without charge, in order to exercise any of Bank's rights or remedies provided herein, at law, in equity, or otherwise;
 
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(e)          Set off and apply to the Obligations any and all (i) balances and deposits of each Loan Party held by Bank, and (ii) indebtedness at any time owing to or for the credit or the account of such Loan Party held by Bank;
 
(f)          Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale, and sell (in the manner provided for herein) the Collateral.  Bank is hereby granted a license or other right, solely pursuant to the provisions of this Section 9.1, to use, without charge, each Loan Party' labels, patents, copyrights, rights of use of any name, trade secrets, trade names, trademarks, service marks, and advertising matter, or any property of a similar nature, as it pertains to the Collateral, in completing production of, advertising for sale, and selling any Collateral and, in connection with Bank's exercise of its rights under this Section 9.1, each Loan Party's rights under all licenses and all franchise agreements shall inure to Bank's benefit;
 
(g)         Sell the Collateral at either a public or private sale, or both, by way of one or more contracts or transactions, for cash or cash equivalents or on terms, in such manner and at such places (including any Loan Party's premises) as Bank determines is commercially reasonable, and apply any proceeds to the Obligations in whatever manner or order Bank deems appropriate.  Bank may sell the Collateral without giving any warranties as to the Collateral.  Bank may specifically disclaim any warranties of title or the like.  This procedure will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral.  If Bank sells any of the Collateral upon credit, the Loan Parties will be credited only with payments actually made by the purchaser, received by Bank, and applied to the indebtedness of the purchaser.  If the purchaser fails to pay for the Collateral, Bank may resell the Collateral and the Loan Parties shall be credited with the proceeds of the sale;
 
(h)          Bank may credit bid and purchase at any public sale;
 
(i)          Apply for the appointment of a receiver, trustee, liquidator or conservator of the Collateral, without notice and without regard to the adequacy of the security for the Obligations and without regard to the solvency of any Loan Party, any guarantor or any other Person liable for any of the Obligations; and
 
(j)           Any deficiency that exists after disposition of the Collateral as provided above will be paid immediately by Borrower or any Guarantor.
 
Bank may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral.
 
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9.2.        Power of Attorney.  Effective only upon the occurrence and during the continuance of an Event of Default, each Loan Party hereby irrevocably appoints Bank (and any of Bank's designated officers, or employees) as such Loan Party's true and lawful attorney to:  (a) send requests for verification of Accounts or notify Account Debtors of Bank's security interest in the Accounts; (b) endorse such Loan Party's name on any checks or other forms of payment or security that may come into Bank's possession, cash or deposit such checks or other items of payment or security, and apply to the Obligations all proceeds of such checks or other items; (c) sign such Loan Party's name on any invoice or bill of lading relating to any Account, drafts against account debtors, schedules and assignments of Accounts, verifications of Accounts, and notices to account debtors; (d) dispose of any Collateral; (e) make, settle, and adjust all claims under and decisions with respect to such Loan Party's policies of insurance; (f) settle and adjust disputes and claims respecting the accounts directly with account debtors, for amounts and upon terms which Bank determines to be reasonable; and (g) file, in its sole discretion, one or more financing or continuation statements and amendments thereto, relative to any of the Collateral without the signature of such Loan Party where permitted by law; provided Bank may exercise such power of attorney to sign the name of such Loan Party on any of the documents described in clause (g) above, regardless of whether an Event of Default has occurred.  The appointment of Bank as each Loan Party's attorney in fact, and each and every one of Bank's rights and powers, being coupled with an interest, is irrevocable until all of the Obligations have been Paid in Full and Bank's obligation to provide Credit Extensions hereunder is terminated (it being understood that any such Obligations will continue to be effective or automatically reinstated, as the case may be, if at any time payment, in whole or in part, of any of the Obligations is rescinded or must otherwise be restored or returned by Bank for any reason, including as a preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar law, as though such payment had not been made, it being further understood that in the event payment of all or any part of the Obligations is rescinded or must be restored or returned, all reasonably out-of-pocket costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) incurred by Bank in defending and enforcing such reinstatement shall be deemed to be included as part of the Obligations)).
 
9.3.       Accounts Collection.  At any time after the occurrence and during the continuation of an Event of Default, Bank may notify any Person owing funds to a Loan Party of Bank's security interest in such funds and verify the amount of such Account.  Each Loan Party shall collect all amounts owing to such Loan Party for Bank, receive in trust all payments as Bank's trustee, and immediately deliver such payments to Bank in their original form as received from the account debtor, with proper endorsements for deposit.
 
9.4.        Bank Expenses.  If any Loan Party fails to pay any amounts or furnish any required proof of payment due to third persons or entities, as required under the terms of this Agreement, then Bank may do any or all of the following after reasonable notice to Borrower:  (a) make payment of the same or any part thereof or (b) obtain and maintain insurance policies of the type discussed in Section 6.5 of this Agreement, and take any action with respect to such policies as Bank deems prudent.  In addition, Bank may make Credit Extensions as Bank deems necessary, in its reasonable credit judgment, to preserve or protect the Collateral or the value thereof.  Any amounts so paid or deposited by Bank shall constitute Bank Expenses, shall be immediately due and payable, and shall bear interest at the then rate applicable to the Term Loan hereinabove provided, and shall be secured by the Collateral.  Any payments made by Bank shall not constitute an agreement by Bank to make similar payments in the future or a waiver by Bank of any Event of Default under this Agreement.
 
9.5.       Bank's Liability for Collateral.  Bank has no obligation to clean up or otherwise prepare the Collateral for sale.  All risk of loss, damage or destruction of the Collateral shall be borne by the Loan Parties.
 
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9.6.        No Obligation to Pursue Others.  Bank has no obligation to attempt to satisfy the Obligations by collecting them from any other person liable for them and Bank may release, modify or waive any collateral provided by any other Person to secure any of the Obligations, all without affecting Bank's rights against the Loan Parties.  Each Loan Party waives any right it may have to require Bank to pursue any other Person for any of the Obligations.
 
9.7.        Remedies Cumulative.  Bank's rights and remedies under this Agreement, the Loan Documents, and all other agreements shall be cumulative.  Bank shall have all other rights and remedies not inconsistent herewith as provided under the Code, by law, or in equity.  No exercise by Bank of one right or remedy shall be deemed an election, and no waiver by Bank of any Event of Default on Borrower's part shall be deemed a continuing waiver.  No delay by Bank shall constitute a waiver, election, or acquiescence by it.  No waiver by Bank shall be effective unless made in a written document signed on behalf of Bank and then shall be effective only in the specific instance and for the specific purpose for which it was given.  Each Loan Party expressly agrees that this Section 9.7 may not be waived or modified by Bank by course of performance, conduct, estoppel or otherwise.
 
9.8.        Demand; Protest.  Except as otherwise provided in this Agreement, each loan Party waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment and any other notices relating to the Obligations.
 
10.          NOTICES.
 
Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other agreement entered into in connection herewith shall be in writing and (except for financial statements and other informational documents which may be sent by first-class mail, postage prepaid) shall be personally delivered or sent by a recognized overnight delivery service, certified mail, postage prepaid, return receipt requested, to the Loan Parties or to Bank, as the case may be, at its addresses set forth below:
 
If to Borrower:
PHENOMEX INC.

5858 Horton St., Ste. 320

Emeryville, CA 94608

Attn:  Mehul Joshi, CFO

Email: Mehul.Joshi@PhenomeX.com and Agreements@PhenomeX.com
   
If to Bank:
East West Bank

135 North Robles Avenue

2nd Floor

Pasadena, California 91101

Attn:  Eric Watson, Senior Vice President

Email: Eric.Watson@eastwestbank.com

The parties hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the other.
 
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11.          CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE.
 
11.1.      Governing Law and Venue.  This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to principles of conflicts of law.  Each Loan Party and Bank hereby submits to the exclusive jurisdiction of any state court located within the State of New York in the County of New York or in the United States District Court for the Southern District of New York; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Bank from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Bank.  Each Loan Party expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and to the extent permitted by applicable law, each Loan Party hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court.  To the extent permitted by applicable law, each Loan Party hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to such Loan Party at the address set forth in, or subsequently provided by the Loan Parties in accordance with, Section 11 of this Agreement and that service so made shall be deemed completed upon the earlier to occur of Borrower's actual receipt thereof or 3 days after deposit thereof in the U.S. mails, proper postage prepaid.
 
11.2.      Jury Trial Waiver.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL PARTIES TO THIS AGREEMENT HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY.
 
11.3.      Jury Reference.  In the event any legal proceeding is filed in a court of the State of California by or against any party hereto in connection with any claim and if the waiver of the right to a trial by jury is not enforceable, the parties hereto agree that any and all disputes or controversies of any nature between them arising at any time shall be decided by a reference to a private judge, who shall be a retired state or federal court judge, mutually selected by the parties or, if they cannot agree, then any party may seek to have a private judge appointed in accordance with California Code of Civil Procedure §§ 638 and 640 (or pursuant to comparable provisions of federal law if the dispute falls within the exclusive jurisdiction of the federal courts).  The reference proceeding shall be conducted pursuant to and in accordance with the provisions of California Code of Civil Procedure §§ 638 through 645.1, inclusive.  The private judge shall have the power, among others, to grant provisional relief, including without limitation, entering temporary restraining orders, issuing preliminary and permanent injunctions and appointing receivers.  All such proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed.  If during the course of any dispute, a party desires to seek provisional relief, but a judge has not been appointed at that point pursuant to the judicial reference procedures, then such party may apply to the Court for such relief.  The proceeding before the private judge shall be conducted in the same manner as it would be before a court under the rules of evidence applicable to judicial proceedings.  The parties shall be entitled to discovery which shall be conducted in the same manner as it would be before a court under the rules of discovery applicable to judicial proceedings.  The private judge shall oversee discovery and may enforce all discovery rules and orders applicable to judicial proceedings in the same manner as a trial court judge.  The parties agree that the selected or appointed private judge shall have the power to decide all issues in the action or proceeding, whether of fact or of law, and shall report a statement of decision thereon pursuant to California Code of Civil Procedure § 644(a).  Nothing in this paragraph shall limit the right of any party at any time to exercise self-help remedies, foreclose against collateral, or obtain provisional remedies.  The private judge shall also determine all issues relating to the applicability, interpretation, and enforceability of this paragraph.  The parties agree that time is of the essence in conducting the referenced proceedings.  The parties shall promptly and diligently cooperate with one another and the referee, and shall perform such acts as may be necessary to obtain prompt and expeditious resolution of the dispute or controversy in accordance with the terms hereof.  The costs of any such reference proceeding shall be borne equally by the parties.
 
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12.          GENERAL PROVISIONS.
 
12.1.     Successors and Assigns.  This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties and shall bind all persons who become bound as a debtor to this Agreement; provided, however, that neither this Agreement nor any rights hereunder may be assigned by any Loan Party without Bank's prior written consent, which consent may be granted or withheld in Bank's sole discretion.  Bank shall have the right without the consent of or notice to any Loan Party to sell, transfer, negotiate, or grant participation in all or any part of, or any interest in, Bank's obligations, rights and benefits hereunder.  If any portion of the Obligations are assigned or participated by Bank, Bank, as a non-fiduciary agent of Borrower shall maintain a register in the United States to record the names, addresses, and tax identification number of each assignee and participant and right to principal and stated interest.  No assignment of participation shall be effective unless recorded in such register.  It is intended that such register be maintained such that the Loans are in "registered form" for the purposes of the IRC.
 
12.2.      Indemnification.  The Loan Parties shall, jointly and severally, defend, indemnify and hold harmless Bank and its officers, employees, and agents (an "Indemnified Person") against:  (a) all obligations, demands, claims, and liabilities claimed or asserted by any other party in connection with the transactions contemplated by this Agreement or the Loan Documents; and (b) all losses or Bank Expenses in any way suffered, incurred, or paid by Bank, its officers, employees and agents as a result of or in any way arising out of, following, or consequential to transactions among Bank and the Loan Parties whether under this Agreement, or otherwise (including without limitation reasonable attorneys' fees and expenses), except for losses caused by an Indemnified Person's gross negligence or willful misconduct.
 
12.3.      Time of Essence.  Time is of the essence for the performance of all obligations set forth in this Agreement.
 
12.4.      Severability of Provisions.  Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.
 
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12.5.      Correction of Loan Documents.  Bank may, with the prior consent of Borrower, correct patent errors and fill in any blanks in this Agreement and the other Loan Documents consistent with the agreement of the parties.
 
12.6.     Amendments in Writing, Integration.  All amendments to or terminations of this Agreement or the other Loan Documents must be in writing signed by the parties.  All prior agreements, understandings, representations, warranties, and negotiations between the parties hereto with respect to the subject matter of this Agreement and the other Loan Documents, if any, are merged into this Agreement and the Loan Documents.
 
12.7.      Counterparts.  This Agreement and any other Loan Document and any amendments, renewals, extensions, modifications, or refinancings thereof may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement or Loan Document, as applicable.  The words "execution," "signed," "signature," "delivery," and words of like import in or relating to this Agreement or any Loan Document and the transactions contemplated hereby shall be deemed to include Electronic Signatures (as defined below), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be.  As used herein, "Electronic Signatures" means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record.  If any signature is delivered by facsimile transmission or by email delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing this Agreement or any other Loan Document (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original hereof or thereof.
 
12.8.      Survival.  All covenants, representations and warranties made in this Agreement shall continue in full force and effect so long as any Obligations remain outstanding or Bank has any obligation to make any Credit Extension to the Loan Parties.  The obligations of Borrower to indemnify Bank with respect to the expenses, damages, losses, costs and liabilities described in Section 12.2 shall survive until all applicable statute of limitations periods with respect to actions that may be brought against Bank have run.
 
12.9.      Effect of Amendment and Restatement.  This Agreement is intended to and does completely amend and restate, without novation, the Original Agreement, which shall be terminated on the Closing Date of this Agreement.  All security interests granted by Borrower under the Original Agreement are hereby confirmed and ratified and shall continue to secure all Obligations under this Agreement.
 
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12.10.    Confidentiality.  In handling any Confidential Information, Bank and all employees and agents of Bank shall keep such information confidential and exercise the same degree of care that Bank exercises with respect to its own proprietary information to maintain the confidentiality of any non-public information except that disclosure of such Confidential Information may be made (i) to the subsidiaries or Affiliates of Bank in connection with their present or prospective business relations with the Loan Parties, (ii) subject to an acknowledgment and agreement by the relevant recipient that the Confidential Information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably acceptable to Borrower and Bank) to prospective transferees or purchasers of any interest in the Loans, (iii) as required by law, regulations, rule or order, subpoena, judicial order or similar order, (iv) as may be required in connection with the examination, audit or similar investigation of Bank, (v) to Bank's accountants, auditors and regulators, and (vi) as Bank may reasonably determine in connection with the enforcement of any remedies hereunder.  For purposes of this Agreement, "Confidential Information" means all non-public information regarding the Loan Parties and their Subsidiaries, their operations, assets, and existing and contemplated business plans; provided that Confidential Information hereunder shall not include information that either:  (a) (i) is in the public domain or (ii) is in the knowledge or possession of Bank when disclosed by any Loan Party or any of their respective Subsidiaries to Bank, or (iii) becomes part of the public domain after disclosure to Bank through no fault of Bank; or (b) is disclosed to Bank by a third party, provided Bank does not have actual knowledge that such third party is prohibited from disclosing such information.  Notwithstanding the foregoing, the Loan Parties hereby consent to Bank's publishing a tombstone or similar advertising material relating to the financial transaction contemplated by this Agreement.
 
12.11.     Patriot Act.  To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account, all  in compliance with the Patriot Act.  WHAT THIS MEANS FOR YOU:  when you open an account, we will ask your name, address, date of birth, and other information that will allow us to identify you.  We may also ask to see your driver's license or other identifying documents.  Bank hereby notifies each Loan Party that pursuant to the requirements of the USA PATRIOT ACT (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "PATRIOT Act"), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow Bank to identify each Loan Party in accordance with the PATRIOT Act.  Each Loan Party shall, promptly following a request by Bank, provide all documentation and other information that Bank reasonably requests in order to comply with its ongoing obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the PATRIOT Act.  Bank will require each Loan Party to provide identifying information about each beneficial owner or individuals who have significant responsibility to control, manage or direct the legal entity.
 
12.12.    Reinstatement.  This Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against Loan Party for liquidation or reorganization, should Loan Party become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of any Loan Party's assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Obligations, whether as a "voidable preference", "fraudulent conveyance", or otherwise, all as though such payment or performance had not been made.  In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned and Bank's Lien security such Obligations shall be effective, revived and remain in full force and effect, in each case as if such payment or performance had not been made.  If, prior to any of the foregoing, Bank's Lien shall have been released or terminated or any provision of this Agreement shall have been terminated or cancelled, then Bank's Liens, or such provision of this Agreement, shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligation of any Loan Party in respect of such liability or any Collateral securing such liability.  This provision shall survive the termination of this Agreement and Payment in Full of the Obligations.
 
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12.13.    Acknowledgment Regarding Any Supported QFCs.  To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Hedging Agreement or any other agreement or instrument that is a QFC (such support, "QFC Credit Support" and each such QFC a "Supported QFC"), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York or of the United States or any other state of the United States):
 
(a)          In the event a Covered Entity that is party to a Supported QFC (each, a "Covered Party") becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.
 
[Balance of Page Intentionally Left Blank]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
 
 
PHENOMEX INC., a Delaware corporation
     
 
By:
/s/ Scott Chaplin
 
Name:
Scott Chaplin
 
Title:
Chief Legal Officer

 
ISOPLEXIS CORPORATION, a Delaware corporation
     
 
By:
/s/ Scott Chaplin
 
Name:
Scott Chaplin
 
Title:
Chief Legal Officer

Signature Page to Second Amended and Restated Loan and
Security Agreement

 
EAST WEST BANK, a California banking corporation
     
 
By:
/s/ Eric Watson
 
Name:
Eric Watson
 
Title:
Duly Authorized Signatory

Signature Page to Second Amended and Restated Loan and
Security Agreement

EXHIBIT A
 
DEFINITIONS
 
"Accounts" means all presently existing and hereafter arising accounts, contract rights, payment intangibles and all other forms of obligations owing to any Loan Party arising out of the sale or lease of goods (including, without limitation, the licensing of software and other technology) or the rendering of services by any Loan Party and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by any Loan Party and any Loan Party's Books relating to any of the foregoing.
 
"Affiliate" means, with respect to any Person, any Person that owns or controls directly or indirectly such Person, any Person that controls or is controlled by or is under common control with such Person, and each of such Person's senior executive officers, directors, and partners.
 
"Agreement" has the meaning assigned in the Preamble.
 
"Amortization Date" means April 1, 2025; provided that (x) if the First Extended Interest-Only Period occurs, the Amortization Date shall mean October 1, 2025; and (y) if the Second Extended Interest-Only Period occurs, the Amortization Date shall mean April 1, 2026.
 
"Assignment of Deposit" means that certain Assignment of Deposit dated as of March 21, 2023, entered into by Borrower as depositor in favor of Bank.
 
"Bank Controlled Account" has the meaning assigned in Section 6.11.
 
"Bank Expenses" means, without duplication, all reasonable and documented out-of-pocket costs or expenses (including reasonable and documented out-of-pocket attorneys' fees and expenses) incurred in connection with the preparation, negotiation, administration, and enforcement of the Loan Documents; reasonable Collateral audit fees; and Bank's reasonable and documented out-of-pocket attorneys' fees and expenses incurred in amending, enforcing or defending the Loan Documents (including fees and expenses of appeal), incurred before, during and after an Insolvency Proceeding, whether or not suit is brought.
 
"Bank Product Collateralization" means providing cash collateral to be held by Bank for its benefit or the benefit of any Affiliate of Bank providing Bank Products (other than to the extent of any Hedging Obligations) in an amount reasonably determined by Bank as sufficient to satisfy the reasonably estimated credit exposure, operational risk and processing risk with respect to the then-existing Bank Product Obligations (other than Hedging Obligations).
 
"Bank Products" means any service or facility extended to any Loan Party by Bank or any affiliate of Bank, or procured for such Loan Party from any third party by Bank or any affiliate of Bank by means of a full-recourse agreement or other credit support extended to such third party including:  (a) commercial credit cards and credit card processing services, (b) debit cards, (c) commercial purchase cards, (d) ACH transactions, (e) cash management services, including controlled disbursement, accounts or services, (g) letters of credit, or (h) Hedging Agreements.
 
Exhibit A - 1

"Beneficial Ownership Certification" means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially in form and substance satisfactory to Bank.
 
"Beneficial Ownership Regulation" means 31 C.F.R. Section 1010.230.
 
"BHC Act Affiliate" of a party means an "affiliate" (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
 
"Borrower" has the meaning assigned in the Preamble.
 
"Borrower State" means the state under whose laws Borrower is organized, which is Delaware as of the Closing Date.
 
"Borrower's Books" means all of Borrower's books and records including:  ledgers; records concerning Borrower's assets or liabilities, the Collateral, business operations or financial condition; and all computer programs, or tape files, and the equipment, containing such information.
 
"BSA" has the meaning assigned in Section 6.14.
 
"Business Day" means any day that is not a Saturday, Sunday, or other day on which commercial banks in the Los Angeles, California are authorized or required to close.
 
"Capital Lease Obligation" means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capital Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in accordance with GAAP.
 
"Capital Leases" means, subject to Section 1.2, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person; provided, that for the avoidance of doubt, the amount of obligations attributable to any Capital Lease shall be the amount thereof accounted for as a liability in accordance with GAAP.
 
"Capital Stock" means (i) with respect to any Person that is a corporation, any and all shares, interests or equivalents in capital stock (whether voting or nonvoting, and whether common or preferred) of such corporation, and (ii) with respect to any Person that is not a corporation, any and all partnership, membership, limited liability company or other equity interests of such Person; and in each case, any and all rights, warrants or options to purchase or acquire any of the foregoing and any other security or instrument representing, convertible into or exchangeable for any of the foregoing.
 
"Cash" means unrestricted cash and cash equivalents.
 
"Cash Burn" means, for any applicable measuring period, the sum of (i) EBITDA, plus (ii) the aggregate amount of capital expenditures, in each case as measured on an average trailing six (6) month basis.
 
Exhibit A - 2

"CFC" means any "controlled foreign corporation" within the meaning of Section 957 of the IRC in which any Loan Party or direct or indirect owner of a Loan Party is a "United States shareholder" within the meaning of Section 951(b) of the IRC.
 
"Change in Control" shall mean a transaction (other than (i) an initial public offering or (ii) a bona fide equity financing or series of financings) in which any "person" or "group" (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of Borrower ordinarily entitled to vote in the election of directors, empowering such "person" or "group" to elect a majority of the board of directors of Borrower, who did not have such power before such transaction.
 
"Closing Date" means the date on which the Term Loan is advanced to Borrower.
 
"Closing Date Term Loan" has the meaning assigned in Section 2.1(b)(i).
 
"Code" means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required to be applied in connection with the creation or perfection of security interests granted hereunder.
 
"Collateral" means the property described on Exhibit B attached hereto and all Negotiable Collateral to the extent not described in Exhibit B; provided that the Collateral shall not include any Excluded Asset.
 
"Collections" means all payments from or on behalf of an account debtor with respect to a Loan Party's rights to payment arising in the ordinary course of such Loan Party's business, including accounts, chattel paper, instruments, contract rights, documents, general intangibles, letters of credit, drafts, and bankers' acceptances.
 
"Commodity Exchange Act" means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
 
"Connection Income Taxes" means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise taxes or branch profits taxes.
 
"Contingent Obligation" means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to (i) any indebtedness, lease, dividend, letter of credit or other obligation of another, including, without limitation, any such obligation directly or indirectly guaranteed, endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise directly or indirectly liable; (ii) any obligations with respect to undrawn letters of credit, corporate credit cards or merchant services issued for the account of that Person; and (iii) all obligations arising under any interest rate, currency or commodity swap agreement, interest rate cap agreement, interest rate collar agreement, or other agreement or arrangement designated to protect a Person against fluctuation in interest rates, currency exchange rates or commodity prices; provided, however, that the term "Contingent Obligation" shall not include endorsements for collection or deposit in the ordinary course of business.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determined amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith; provided, however, that such amount shall not in any event exceed the maximum amount of the obligations under the guarantee or other support arrangement.
 
Exhibit A - 3

"Copyrights" means any and all copyright rights, copyright applications, copyright registrations and like protections in each work or authorship and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret, now or hereafter existing, created, acquired or held.
 
"Covenant Testing Period" means a period commencing on the last day of the quarter of Borrower most recently ended prior to a Covenant Trigger Event for which the Loan Parties are required to deliver to Agent quarterly or annual financial statements pursuant to this Agreement and continuing at all times thereafter.
 
"Covenant Trigger Event" if at any time the aggregate amount of unrestricted cash and cash equivalents of the Loan Parties and their Subsidiaries in Deposit Accounts and/or Securities Accounts of such Loan Parties and their Subsidiaries at Bank is less than One Hundred Million Dollars ($100,000,000).
 
"Covered Entity" means any of the following:
 
(i)          a "covered entity" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
 
(ii)          a "covered bank" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
 
(iii)          a "covered FSI" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
 
"Covered Party" has the meaning set forth in Section 12.14.
 
"Credit Extension" means the Term Loan or any other extension of credit by Bank to or for the benefit of Borrower hereunder.
 
"Default Right" has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
 
"Dollars," "dollars" or use of the sign "$" means only lawful money of the United States and not any other currency, regardless of whether that currency uses the "$" sign to denote its currency or may be readily converted into lawful money of the United States.
 
"Domestic Subsidiary" means any subsidiary of Borrower incorporated or organized under the laws of the US, any state thereof or the District of Columbia.
 
"Disclosure Schedules" means the Disclosure Schedules dated as of the Closing Date and delivered to Bank pursuant to this Agreement.
 
Exhibit A - 4

"EBITDA" means, for any period, the sum of the Loan Parties' net income after taxes for such period (excluding extraordinary gains) (it being understood, for the avoidance of doubt, that capitalized software expenses shall not reduce net income to the extent that they are capitalized); plus, to the extent deducted in determining net income and without duplication, (a) Interest Expense for such period, debt discount, fees, charges and related expenses, including capitalized interest; (b) income tax expense for such period; (c) depreciation and amortization for such period; (d) non-cash expenses relating to stock based compensation and gains or losses on equity revaluations; and (e) restructuring expenses, including but not limited to transaction and integration related expenses, legal settlements, and one-time severance for such period, in each case, with respect to this clause (e), not to exceed the amount set forth for such period in Borrower's projections delivered to Bank in writing for such period prior to the Closing Date; plus or minus any other non-cash charges or gains which have been subtracted or added in calculating net income after taxes for such period, all on a consolidated basis; provided, however, EBITDA shall not include the results of any foreign Subsidiary of any Loan Party except to the extent that such foreign Subsidiary has repatriated its net income to Borrower or a Guarantor.
 
"Embargoed Person" means (a) any country or territory that is the target of comprehensive, country- or territory-wide a sanctions program administered by OFAC or (b) any Person that (i) is or is owned or controlled by a Person publicly identified on the most current list of "Specially Designated Nationals and Blocked Persons" published by OFAC, (ii) is the target of a sanctions program or designated on a sanctions list (A) administered by OFAC, or (B) under the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act for Fiscal Year 2012 or Executive Order 13590 "Authorizing the Imposition of Certain Sanctions with respect to the Provision of Services, Technology or Support for Iran's Energy and Petrochemical Sectors," effective November 21, 2011 or (iii) resides, is organized or chartered, or has a place of business in a country or territory that is the subject of a comprehensive, country- or territory-wide sanctions program administered by OFAC.
 
"Environmental Laws" means all laws, rules, regulations, orders and the like issued by any federal state, local foreign or other governmental or quasi-governmental authority or any agency pertaining to the environment or to any hazardous materials or wastes, toxic substances, flammable, explosive or radioactive materials, asbestos or other similar materials.
 
"Equipment" means all present and future machinery, equipment, tenant improvements, furniture, fixtures, vehicles, tools, parts and attachments in which Borrower has any interest.
 
"ERISA" means the Employee Retirement Income Security Act of 1974.
 
"ERISA Affiliate" means any Person who for purposes of Title IV of ERISA is deemed at any relevant time to be a single employer or otherwise aggregated with any Loan Party under Section 414 of the IRC or Section 4001 of ERISA.
 
"Event of Default" has the meaning assigned in Article 8.
 
"Exchange Act" means the Securities Exchange Act of 1934.
 
Exhibit A - 5

"Excluded Account" means any Deposit Account (a) which is an escrow, fiduciary, trust or similar account, (b) holding cash collateral for a third party (other than Borrower or any Subsidiary), (c) used by any Loan Party exclusively for disbursements and/or payments of payroll in the ordinary course of business, (d) which is a zero balance account or (e) which has a balance of less than One Hundred Thousand Dollars ($100,000) individually or Five Hundred Thousand Dollars ($500,000) in the aggregate for all such Deposit Accounts that are Excluded Accounts pursuant to this clause (e).
 
"Excluded Assets" means assets  to the extent that  (i) any such asset or property is a General Intangible that is non-assignable by its terms without the consent (that has not been obtained) of the licensor thereof or another party (that is not a Loan Party or an Affiliate of a Loan Party) but only to the extent such prohibition on the creation of a Lien in favor of Bank is enforceable under applicable law and is non rendered ineffective by applicable law (including, without limitation, Sections 9-406, 9-407, 9-408 or 9-409 of the Code), (ii) the granting of a security interest therein is contrary to the Requirements of Law, (iii) any such assets or property constitutes equity interests of Persons (other than Shares), (iv) any such assets or property constitutes Intellectual Property (except to the extent (and solely for so long as) such Intellectual Property is required constitute Collateral pursuant to Section 6.7(a)), (v) any such assets or property constitutes Excluded Accounts, (vi) any intent-to-use (or similar) Trademark application prior to the filing with, and acceptance by, the U.S. Patent and Trademark Office of a "Statement of Use", "Declaration of Use", "Amendment to Allege Use" or similar filing with respect thereto, only to the extent, if any, that, and solely during the period if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use (or similar) Trademark application (or any Trademark registration resulting therefrom) under applicable Requirements of Law, and (vi) Bank and Borrower have reasonably determined that the cost, burden, difficulty or consequence (including any effect on the ability of the relevant Loan Party to conduct its operations and business in the ordinary course of business) of obtaining or perfecting a security interest therein outweighs, or is excessive in light of, the practical benefit of a security interest to Bank afforded thereby; provided that (x) Excluded Assets shall not include any Proceeds of any item of General Intangibles and (y) any item that at any time ceases to satisfy the criteria for Excluded Assets (whether as a result of the applicable Loan Party obtaining any necessary consent, any change in Requirement of Law or otherwise) shall no longer constitute an Excluded Asset.
 
"Excluded Swap Obligation" means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party's failure for any reason to constitute an "eligible contract participant" as defined in the Commodity Exchange Act at the time the guarantee of or grant of security interest by such Loan Party becomes effective with respect to such related Swap Obligation (such determination being made after giving effect to any applicable keepwell, support, or other agreement for the benefit of the applicable Loan Party).
 
Exhibit A - 6

"Excluded Taxes" means, with respect to Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) any taxes on or measured by overall net income (however denominated), franchise taxes (in lieu of net income taxes) and branch profits taxes, (i) in each case imposed on it by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of Bank, in which its applicable lending office is located or (ii) that are Other Connection Taxes, (b) in the case of Bank, U.S. federal  withholding taxes imposed on amounts payable to or for the account of Bank with respect to an applicable interest in the Obligations pursuant to applicable law in effect on the date on which (i) Bank acquires such interest in the Obligations or (ii) Bank changes its lending office (other any change made at the request of any Loan Party), except in each case to the extent that, pursuant to Section 2.7, amounts with respect to such taxes were payable either to the assignor immediately before the assignee became a party hereto or to Bank (or an applicable assignee) immediately before it changed its lending office, (c) Taxes solely attributable to such recipient’s failure to comply with Section 2.7(f) and (d) any U.S. federal withholding taxes imposed under FATCA.
 
"Extraordinary Receipt" means any cash payments received by any Loan Party not in the ordinary course of business (and not consisting of proceeds described in Section 2.8(a), (b) or (c)) consisting of net cash proceeds of (i) judgments or settlements received in connection with any cause of action or claim (other than with respect to reimbursement of third-party claims and other than with respect to a certain customer payment dispute disclosed to Bank prior to the Closing Date), (ii) indemnity payments (other than to the extent such indemnity payments are payable to a Person that is not a Subsidiary of any Loan Party), and (iii) any purchase price adjustment received in connection with any acquisition agreement.
 
"FATCA" means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the IRC.
 
"First Extended Interest-Only Period" means Borrower's EBITDA for the fiscal year ending December 31, 2024 is not less than $9,985,992.63 as reflected in the applicable Compliance Certificate received by Bank in accordance with the requirements of this Agreement.
 
"Foreign Subsidiary" means any existing or future direct or indirect subsidiary of Borrower that is not a Domestic Subsidiary.
 
"FSHCO" means any direct or indirect Domestic Subsidiary that has no material assets other than the Capital Stock or Capital Stock and Indebtedness of one or more CFC; provided that any such Domestic Subsidiary that solely owns Capital Stock or Capital Stock and Indebtedness of Protected CFCs shall not be treated as a FSHCO.
 
"GAAP" means generally accepted accounting principles in the United States of America, consistently applied, as in effect from time to time.
 
"Governmental Authority" means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra national bodies such as the European Union or the European Central Bank).
 
Exhibit A - 7

"Guarantor" means IsoPlexis and each other Person that now or in the future agrees to guaranty the Obligations.
 
"Guaranty" means that certain Continuing Unconditional Guaranty, dated as of the date hereof, among the Loan Parties in favor of Bank or any other guaranty of all or any portion of the Obligations provided in writing by a Subsidiary of Borrower.
 
"Hazardous Materials" means any hazardous, toxic or dangerous substance, materials and wastes, including hydrocarbons (including naturally occurring or man-made petroleum and hydrocarbons), flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, biological substances, polychlorinated biphenyls, pesticides, herbicides and any other kind and/or type of pollutants or contaminants (including materials which include hazardous constituents), sewage, sludge, industrial slag, solvents and/or any other similar substances, materials, or wastes and including any other substances, materials or wastes that are or become regulated under any Environmental Law (including any that are or become classified as hazardous or toxic under any Environmental Law).
 
"Hedging Agreement" means any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement designed to protect a Person against fluctuations in interest rate, currency exchange rates or commodity prices.
 
"Hedging Obligation" means, with respect to any Person, any liability of such Person under any Hedging Agreements.  The amount of any Person's obligations in respect of any Hedging Obligation shall be deemed to be the net obligations that would be reflected in the financial statements of such Person in accordance with GAAP.
 
"Indebtedness" means (a) all indebtedness for borrowed money or the deferred purchase price of property or services, including without limitation reimbursement and other obligations with respect to surety bonds and letters of credit, (b) all obligations evidenced by notes, bonds, debentures or similar instruments, (c) Capital Lease Obligations, (d) all Capital Stock of such Person subject to mandatory repurchase or redemption obligation applicable to such Person at any time prior to the date that is ninety (90) days after the final maturity date of the Obligations, other than such mandatory repurchase or redemption obligations that are (i) at the sole option of such Person or (ii) for Capital Stock that does not contain such mandatory repurchase or redemption obligations, and (e) all Contingent Obligations, if any.
 
"Indemnified Taxes" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
 
"Insolvency Proceeding" means any proceeding commenced by or against any Person or entity under any provision of the United States Bankruptcy Code, or under any other bankruptcy or insolvency law, including assignments for the benefit of creditors, formal or informal moratoria, compositions, extension generally with its creditors, or proceedings seeking reorganization, arrangement, or other relief.
 
Exhibit A - 8

"Intellectual Property" means all of Borrower's right, title, and interest in and to the following:
 
(a)          Copyrights, Trademarks and Patents;
 
(b)         Any and all trade secrets, and any and all intellectual property rights in computer software and computer software products now or hereafter existing, created, acquired or held;
 
(c)          Any and all design rights which may be available to Borrower now or hereafter existing, created, acquired or held;
 
(d)         Any and all claims for damages by way of past, present and future infringement of any of the rights included above, with the right, but not the obligation, to sue for and collect such damages for said use or infringement of the intellectual property rights identified above;
 
(e)         All licenses or other rights to use any of the Copyrights, Patents or Trademarks, and all license fees and royalties arising from such use to the extent permitted by such license or rights; and
 
(f)          All amendments, renewals and extensions of any of the Copyrights, Trademarks or Patents.
 
"Interest Expense" means, for any period, for Borrower on a consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses (excluding closing costs associated with this transaction) in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets during such period, plus (b) all payments made under interest rate Hedging Agreements during such period to the extent not included in clause (a) of this definition, including all premium payments and capitalized interest, minus (c) all payments received under interest rate Hedging Agreements during such period, plus (d) the portion of rent expense with respect to such period under capital leases that is treated as interest in accordance with GAAP.
 
"Inventory" means all present and future inventory in which any Loan Party has any interest.
 
"Investment" means any beneficial ownership of (including stock, partnership or limited liability company interest or other securities) any Person, or any loan, advance or capital contribution to any Person.
 
"Investors' Rights Agreement" means that certain Sixth Amended and Restated Investors' Rights Agreement, dated as of December 30, 2020, by and among IsoPlexis and each of the investors listed on Schedule A thereto
 
"IRC" means the Internal Revenue Code of 1986.
 
"Irrevocable Proxy" has the meaning assigned to such term in Section 4.4.
 
Exhibit A - 9

"Lien" means any security interest, mortgage, deed of trust, pledge, lien, charge, judgment lien, collateral assignment, encumbrance, title retention agreement or analogous instrument or device, including the interest of each lessor under any capitalized lease and the interest of any bondsman under any payment or performance bond, in, of or on any assets or properties of a Person, whether now owned or subsequently acquired and whether arising by agreement or operation of law, all whether perfected or unperfected, in each case, in the nature of collateral security.
 
"Loan Documents" means, collectively, this Agreement, the Guaranty, any promissory note executed by Borrower in favor of Bank evidencing the Obligations, each control agreement with respect to any Deposit Account or Securities Account, the Assignment of Deposit, each and any other document, instrument or agreement delivered in connection with the foregoing.
 
"Loan Party" means Borrower and each Guarantor, individually, and "Loan Parties" means Borrower and all Guarantors, collectively.
 
"Loan Party's Books" means all of each Loan Party's books and records including:  ledgers; records concerning such Loan Party's assets or liabilities, the Collateral, business operations or financial condition; and all computer programs, or tape files, and the equipment, containing such information.
 
"Material Adverse Effect" means (i) a material impairment in the perfection or priority of Bank's Lien in the Collateral or in the value of such Collateral; (b) a material adverse change in the business, operations, or condition (financial or otherwise) of Borrower; or (c) a material impairment of the prospect of repayment of any portion of the Obligations.
 
"Multiemployer Plan" means a multiemployer plan (as defined in Section 4001(a)(3) of ERISA) to which any Loan Party or any ERISA Affiliate contributes or is obligated to contribute.
 
"Negotiable Collateral" means all of each Loan Party's present and future letters of credit of which it is a beneficiary, drafts, instruments (including promissory notes), securities, Documents, documents of title, and Chattel Paper, and each Loan Party's Books relating to any of the foregoing.
 
"Obligations" means all debt, principal, interest, Bank Expenses and other amounts owed to Bank by any Loan Party pursuant to this Agreement or any other agreement (including in respect of Bank Products and Hedging Obligations), whether absolute or contingent, due or to become due, now existing or hereafter arising, including any interest that accrues after the commencement of an Insolvency Proceeding and including any debt, liability, or obligation owing from Borrower to others that Bank may have obtained by assignment or otherwise; provided, however, that Obligations shall not include any Excluded Swap Obligation.
 
"OFAC" means the United States Office of Foreign Assets Control.
 
"Open Source Software" means any software that constitutes open source, public source or Intellectual Property, or any modification or derivative thereof, including any version of any software licensed pursuant to the GNU General Public License, the Affero General Public License, the GNU Lesser General Public License, the Eclipse Public License, the Common Public License, the Mozilla Public License, or any other license identified as an open source license by the Open Source Initiative (www.opensource.org).
 
Exhibit A - 10

"Original Agreement" has the meaning assigned in the Recitals.
 
"Original Closing Date" has the meaning assigned in the Recitals.
 
"Original Term Loan" has the meaning assigned in Section 2.1(b)(i).
 
"Other Connection Taxes" means, with respect to Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Obligation or Loan Document).
 
"Other Taxes" means all present or future stamp, intangible or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment by Bank of its interest in an Obligation after the date hereof, other than any such assignment made at the request of any Loan Party or during an Event of Default described in Section 8.1, 8.4., 8.5, or 8.10.
 
"Outstanding Original Term Loan Balance" has the meaning assigned in Section 2.1(b)(i).
 
"Paid in Full" "Pay in Full" or "Payment in Full" means, the payment in full in immediately available funds of all Obligations (other than (i) contingent indemnification obligations to the extent no claim giving rise thereto has been asserted, (ii) in the case of Hedging Obligations, the termination of the applicable Hedging Agreement and payment in full of any termination and other amounts then applicable, except to the extent of any Hedging Obligations that, at such time, are allowed by the applicable Person to whom such Hedging Obligations are owing to remain outstanding without being required to be terminated or repaid, or such other arrangements reasonably acceptable to the applicable Person providing such Hedging Obligations have been made, and (iii) in the case of Obligations in respect of Bank Products (other than Hedging Obligations), providing Bank Product Collateralization, except to the extent either (1) such Bank Products are terminated, all payments in respect thereof are made at such time and there are no further obligations outstanding with respect thereto or (2) such Bank Products are allowed, at such time, by Bank or its Affiliate providing such Bank Products, to remain outstanding without being required to be repaid or subject to Bank Product Collateralization).
 
"Patents" means all patents, patent applications and like protections including without limitation improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.
 
"PBGC" means the Pension Benefit Guaranty Corporation.
 
Exhibit A - 11

"Pension Plan" means a pension plan (as defined in Section 3(2) of ERISA) maintained for employees of any Loan Party or any ERISA Affiliate and covered by Title IV of ERISA.
 
"Periodic Payments" means all installments or similar recurring payments that any Loan Party may now or hereafter become obligated to pay to Bank pursuant to the Loan Documents.
 
"Permitted Indebtedness" means:
 
(a)          Indebtedness of the Loan Parties in favor of Bank arising under this Agreement or any other Loan Document;
 
(b)          Indebtedness existing on the Closing Date and disclosed in the Schedule P-1 of the Disclosure Schedules;
 
(c)         Indebtedness not to exceed Three Hundred Thousand Dollars ($300,000) in the aggregate in any fiscal year of the Loan Parties or any of their Subsidiaries secured by a lien described in clause (c) of the defined term "Permitted Liens," provided such Indebtedness does not exceed the lesser of the cost or fair market value of the equipment financed with such Indebtedness;
 
(d)          Subordinated Debt;
 
(e)         Indebtedness not to exceed Three Hundred Thousand Dollars ($300,000) in the aggregate incurred under corporate credit cards in the ordinary course of business;
 
(f)          Permitted Intercompany Indebtedness;
 
(g)          Indebtedness to trade creditors incurred in the ordinary course of business;
 
(h)          Indebtedness incurred as a result of endorsing negotiable instruments received in the ordinary course of business;
 
(i)          Letters of credit with Bank incurred in the ordinary course of business in connection with the leasing of real property in an aggregate amount not to exceed One Hundred Fifty Thousand Dollars ($150,000);
 
(j)          Additional unsecured Indebtedness not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate at any time; and
 
(k)         Extensions, refinancings and renewals of any items of Permitted Indebtedness, provided that the principal amount is not increased or the terms modified to impose more burdensome terms upon Borrower or its Subsidiary, as the case may be.
 
"Permitted Intercompany Indebtedness" means loans or advances made in cash by (a) Borrower to any other Loan Party, (b) any Loan Party to Borrower or any other Loan Party, (c) a Subsidiary of Borrower that is not a Loan Party to another Subsidiary of Borrower that is not a Loan Party or to a Loan Party, and (d) any Loan Party to another Subsidiary of Borrower that is not a Loan Party so long as all such loans made pursuant to this clause (d) shall not exceed Four Million Dollars ($4,000,000) in the aggregate outstanding at any time; provided, that, with respect to all such Indebtedness, at upon the request of Bank at any time, such Indebtedness shall be evidenced by a promissory note having terms reasonably satisfactory to Bank, the sole originally-executed counterparts of which shall (to the extent the lender is a Loan Party) be pledged and delivered to Bank, as security for the Obligations, and the obligations under such promissory note shall be subordinated to the Obligations in a manner reasonably satisfactory to Bank.
 
Exhibit A - 12

"Permitted Intercompany Investments" means capital contributions made in cash by (a) Borrower to any other Loan Party, (b) any Loan Party to Borrower or any other Loan Party, (c) a Subsidiary of Borrower that is not a Loan Party to another Subsidiary of Borrower that is not a Loan Party or to a Loan Party, and (d) any Loan Party to another Subsidiary of Borrower that is not a Loan Party so long as all such capital contributions made pursuant to this clause (d) shall not exceed Four Million Dollars ($4,000,000) in any fiscal year.
 
"Permitted Investment" means:
 
(a)          Investments existing on the Closing Date disclosed in Section P-2 of the Disclosure Schedule;
 
(b)       (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or any State thereof maturing within two (2) years from the date of acquisition thereof, (ii) commercial paper maturing no more than two hundred seventy (270)  from the date of creation thereof and currently having rating of at least A-1 or P-1 from either Standard & Poor's Corporation or Moody's Investors Service, (iii) Bank's certificates of deposit maturing no more than two (2) years from the date of investment therein, and (iv) Bank's money market accounts;
 
(c)       repurchases of stock of Borrower from former officers, employees or directors of Borrower or any of its Subsidiaries under the terms of applicable repurchase agreements (i) in an aggregate amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) in any fiscal year, provided that no Event of Default has occurred, is continuing or would exist after giving effect to the repurchases, or (ii) in any amount where the consideration for the repurchase is the cancellation of indebtedness owed by such Persons to Borrower or any of its Subsidiaries regardless of whether an Event of Default exists;
 
(d)          Investments accepted in connection with Permitted Transfers;
 
(e)        Investments (i) arising as a result of Permitted Intercompany Indebtedness and Permitted Intercompany Investments, and (ii) in the form of beneficial ownership by Borrower or any of its Subsidiaries of their respective Subsidiaries made on or prior to the Closing Date;
 
(f)          Investments not to exceed One Hundred Thousand Dollars ($100,000) in the aggregate in any fiscal year consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business, and (ii) loans to employees, officers or directors relating to the purchase of equity securities of Borrower pursuant to employee stock purchase plan agreements approved by Borrower's board of directors;
 
(g)       Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of a Loan Party's (or any of their Subsidiaries') business;
 
Exhibit A - 13

(h)         Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business, provided that this subparagraph (h) shall not apply to Investments of Borrower in any Subsidiary;
 
(i)          joint ventures or strategic alliances in the ordinary course of business consisting of the non-exclusive licensing of technology, the development of technology or the providing of technical support, provided that any cash Investments by the Loan Parties do not exceed Three Hundred Thousand Dollars ($300,000) in the aggregate in any fiscal year;
 
(j)          Investments made pursuant to Borrower's investment policy approved by its board of directors;
 
(k)          Investments permitted under Sections 7.3, 7.6 or 7.7; and
 
(l)         additional Investments, other than Investments in Subsidiaries, by the Loan Parties that do not exceed One Hundred Fifty Thousand Dollars ($150,000) in the aggregate during the term of this Agreement.
 
"Permitted Liens" means the following:
 
(a)        Any Liens existing on the Closing Date and disclosed in Section P-3 of the Disclosure Schedules (excluding Liens to be satisfied with the proceeds of the Term Loan) or arising under this Agreement or the other Loan Documents;
 
(b)          Liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings and for which the applicable Loan Party maintains adequate reserves, provided the same have no priority over any of Bank's security interests (other than statutory liens arising as a matter of law);
 
(c)          Liens not to exceed Three Hundred Thousand Dollars ($300,000.00) in the aggregate (i) upon or in any Equipment acquired or held by a Loan Party or any of its Subsidiaries to secure the purchase price of such Equipment or indebtedness incurred solely for the purpose of financing the acquisition or lease of such Equipment, or (ii) existing on such Equipment at the time of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the proceeds of such Equipment;
 
(d)          Liens incurred in connection with licenses or sublicenses permitted hereunder;
 
(e)         statutory Liens securing claims or demands of materialmen, mechanics, carriers, repairmen, or other like Liens imposed without the action of such parties arising in the ordinary course of business;
 
(f)          Liens to secure payment for workers' compensation, employment insurance, old age pensions, social security or other like obligations incurred in the ordinary course of business;
 
Exhibit A - 14

(g)          Non-exclusive licenses of Intellectual Property granted to third parties in the ordinary course of business consistent with past practice;
 
(h)          Liens arising in connection with the corporate credit cards as permitted in clause (e) of the definition of "Permitted Indebtedness";
 
(i)          Liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in clauses (a) through (h) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness being extended, renewed or refinanced does not increase;
 
(j)          Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Sections 8.5 (attachment) or 8.9 (judgments);
 
(k)          Leases or subleases of real property granted in the ordinary course of a Loan Party's business (or, if referring to another Person, in the ordinary course of such Person's business); and
 
(l)         Liens in favor of other financial institutions arising in connection with a Loan Party's Deposit Accounts held at such institutions to secured standard fees for deposit services charged by, but not financing made available by such institutions, provided that Bank has a perfected security interest in the amounts held in such deposit accounts to the extent required by Section 6.6.
 
"Permitted Transfer" means the conveyance, sale, lease, transfer or disposition by Borrower or any Subsidiary of:
 
(a)          Inventory in the ordinary course of business;
 
(b)          Licenses permitted hereunder;
 
(c)          worn-out, unutilized or obsolete Equipment;
 
(d)         grants of security interests and other Liens that constitute Permitted Liens;
 
(e)          Transfers that constitute Permitted Investments;
 
(f)          use of cash and cash equivalents, unless in a manner otherwise prohibited by the terms of this Agreement; and
 
(g)         other assets of the Loan Parties and their Subsidiaries that do not in the aggregate exceed Three Hundred Thousand Dollars ($300,000) during any fiscal year.
 
"Person" means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, institution, public benefit corporation, firm, joint stock company, estate, entity or governmental agency.
 
Exhibit A - 15

"Plan" means an employee benefit plan (as defined in Section 3(3) of ERISA) covering employees of any Loan Party or any of its Subsidiaries (a) that is maintained by any Loan Party or any ERISA Affiliate or (b) to which any Loan Party has an obligation to make contributions, including as the result of being an ERISA Affiliate.
 
"Post-Closing Schedule" means Schedule 6.16 hereto.
 
"Prepayment Asset Sale" means, with respect to any Loan Party, the sale, transfer or other disposition by a Loan Party of any of its respective assets outside of the ordinary course of business pursuant to clause (g) of the definition of Permitted Transfer.
 
"Prime Rate" means the greater of six and one-quarter of one percent (6.25%) per year, or the variable rate of interest, per annum, most recently announced by Bank, as its "prime rate," whether or not such announced rate is the lowest rate available from Bank.
 
"Prohibited Territory" means any person or country listed by the Office of Foreign Assets Control of the United States Department of Treasury as to which transactions between a United States Person and that territory are prohibited.
 
"Protected CFC" means any CFC all of whose "United States shareholders" are United States domestic C-corporations which as reasonably determined by Borrower in consultation with Bank would receive a 100% dividends received deduction under Section 245A of the IRC with respect to all dividends from such CFC and all inclusions under Sections 951(a)(1)(B) and 956 of the IRC pursuant to Treasury Regulation Section 1.956-1 from such CFC.
 
"Protected Foreign Subsidiary" means (i) any Protected CFC or (ii) any Foreign Subsidiary that is treated as a disregarded entity of a "United States person" other than a FSHCO within the meaning of Section 7701(a)(30) of the IRC for federal income tax purposes and which does not own any Capital Stock in any CFC.
 
"Put Agreement" means that certain Amended and Restated Put Agreement, dated as of October 31, 2016, by and among IsoPlexis, Connecticut Innovations, Incorporated, Connecticut Growth Fund II, Limited Partnership and Advantage Capital Partners Connecticut V, Limited Partnership.
 
"QFC" has the meaning assigned to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
 
"QFC Credit Support" has the meaning set forth in Section 12.14.
 
"Remaining Months Liquidity" means, with respect to the Loan Parties for each period consisting of six consecutive months, a ratio of Cash as of the last day of such period to Cash Burn for such period.
 
"Reportable Event" means a reportable event (as defined in Section 4043 of ERISA), other than an event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the PBGC.
 
Exhibit A - 16

"Requirements of Law" means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
 
"Responsible Officer" means each of the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer, the VP, Finance and Accounting and the General Counsel of any Person and (in the case of documents delivered on the Closing Date, shall include any secretary or assistant secretary or any other authorized Person of Borrower).
 
"Responsible Officer Certification" means, with respect to the financial statements for which certification is required, the certification of a Responsible Officer of Borrower that such financial statements fairly present, in all material respects, in accordance with GAAP, the consolidated financial position and results of operation of Borrower as at the dates indicated, subject to changes resulting from audit and normal year-end adjustments.
 
"Sanctions" means any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by:  (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, or (d) His Majesty's Treasury of the United Kingdom.
 
"Second Extended Interest-Only Period" means Borrower's EBITDA for the trailing six months ending June 30, 2025 is not less than $12,117,305.34 as reflected in the applicable Compliance Certificate received by Bank in accordance with the requirements of this Agreement.
 
"Shares" means (i) sixty-five percent (65%) of the issued and outstanding voting Capital Stock owned or held of record by Borrower in any CFC or a FSHCO, (ii) one hundred percent (100%) of the issued and outstanding non-voting Capital Stock owned or held of record by Borrower in any CFC or a FSHCO, and (iii) one hundred percent (100%) of the issued and outstanding Capital Stock owned or held of record by Borrower or any other Loan Party in any Domestic Subsidiary and/or Protected Foreign Subsidiary
 
"Shares Collateral" has the meaning assigned to such term in Section 4.4.
 
"Subordinated Debt" means any debt incurred by Borrower that is subordinated in writing to the debt owing by Borrower to Bank on terms reasonably acceptable to Bank (and identified as being such by Borrower and Bank).
 
"Subsidiary" means any corporation, partnership or limited liability company or joint venture in which (i) any general partnership interest or (ii) more than fifty percent (50%) of the stock, limited liability company interest or joint venture of which by the terms thereof ordinary voting power to elect the board of directors (or other governing body), managers or trustees of the entity, at the time as of which any determination is being made, is owned by Borrower, either directly or through an Affiliate.
 
Exhibit A - 17

"Supported QFC" has the meaning set forth in Section 12.14.
 
"Swap Obligation" means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a "swap" within the meaning of section 1a(47) of the Commodity Exchange Act.
 
"Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
 
"Term Loan" has the meaning set forth in Section 2.1(b)(i).
 
"Term Loan Maturity Date" means March 21, 2028.
 
"Trademarks" means any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of Borrower connected with and symbolized by such trademarks.
 
"U.S. Special Resolution Regimes" has the meaning set forth in Section 12.14.
 
"Warrant" means that certain Warrant Certificate with an issue date of December 30, 2020 issued by Borrower to Perceptive Credit Holdings III, LP, as Holder (as defined therein) with respect to 496,560 shares of common stock of Borrower.
 
Exhibit A - 18

DEBTOR
PHENOMEX INC./ISOPLEXIS CORPORATION


SECURED PARTY:
EAST WEST BANK

EXHIBIT B
 
COLLATERAL DESCRIPTION ATTACHMENT
TO LOAN AND SECURITY AGREEMENT
 
All personal property of each Loan Party (herein referred to as "Debtor") whether presently existing or hereafter created or acquired, and wherever located, including, but not limited to:
 
All personal property of each Debtor of every kind, whether presently existing or hereafter created or acquired, and wherever located, including but not limited to: (a) all accounts (including health-care-insurance receivables), chattel paper (including tangible and electronic chattel paper), the commercial tort claims set forth in Section 5.10 of the Disclosure Schedules or otherwise identified to Bank, deposit accounts, documents (including negotiable documents), equipment (including all accessions and additions thereto), general intangibles (including payment intangibles and software), goods (including fixtures), instruments (including promissory notes), inventory (including all goods held for sale or lease or to be furnished under a contract of service, and including returns and repossessions), investment property (including securities and securities entitlements), letter of credit rights, money, and all of each Debtor's books and records with respect to any of the foregoing, and the computers and equipment containing said books and records; and (b) any and all cash proceeds and/or noncash proceeds thereof, including, without limitation, insurance proceeds, and all supporting obligations and the security therefor or for any right to payment.  All terms above have the meanings given to them in the Code.
 
Notwithstanding the foregoing, the Collateral shall not include Excluded Collateral.  Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of June 30, 2021, with respect to PhenomeX Inc. and March 21, 2023, with respect to IsoPlexis Corporation, include the Intellectual Property to the extent necessary to permit perfection of Bank's security interest in the Rights to Payment.
 
Exhibit B - 1

EXHIBIT C
 
COMPLIANCE CERTIFICATE
 
Please send all Required Reporting to:
East West Bank
 
135 North Robles Avenue, 2nd Floor
 
Pasadena, California 91101
Attn: Eric Watson, Senior Vice President
Email: Eric.Watson@eastwestbank.com
 
FROM: PHENOMEX INC.
 
The undersigned authorized Responsible Officer of PHENOMEX INC. (“Borrower”), hereby certifies, solely in his or her capacity as an officer of the company and not in his or her individual capacity that in accordance with the terms and conditions of the Second Amended and Restated Loan and Security Agreement among Borrower, IsoPlexis Corporation, a Delaware corporation, as a Guarantor, and Bank (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Agreement”), (i) the Loan Parties are in complete compliance for the period ending with all required covenants, except as noted below and (ii) all representations and warranties of the Loan Parties stated in the Agreement and each other Loan Document are true and correct in all material respects as of the date hereof. Attached herewith are the required documents supporting the above certification. The Responsible Officer further certifies that these are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes.
 
Please indicate compliance status by circling Yes/No under “Complies” or “Applicable” column.
 
REPORTING COVENANTS
 
REQUIRED
 
COMPLIES
Quarterly Financial Statements (Section 6.2(a))
 
Within 45 days after the end of each fiscal quarter1
 
YES
NO
Annual Audited Financial Statements (Section 6.2(b))
 
Within 90 days after the end of each fiscal year
 
YES
NO
Compliance Certificate (Section 6.2(c))
 
Together with the quarterly financial statements and the annual audited financial statements2
 
YES
NO
           
Annual Operating Budget and Financial Projections (Section 6.2(e))
 
Within 90 days after the beginning of each fiscal year3
 
YES
NO
         
If Public:
         
10-Q
 
Quarterly, within 5 days of SEC filing (50 days)
 
YES
NO
10-K
 
Annually, within 5 days of SEC filing (95 days)
 
YES
NO


1          To be delivered for the first three fiscal quarters of each fiscal year.
2          Commencing with the fiscal quarter ending March 31, 2023.
3          Commencing with the fiscal year ending December 31, 2024.


Exhibit C - 1

COVENANTS
REQUIRED4
 
COMPLIES
Remaining Months Liquidity measured as of the last day of each fiscal quarter
4.00 to 1.00 or each Loan Party must execute an Amendment to Agreement and Intellectual Property Security Agreement to provide Bank with a perfected first priority security interest on each Loan Party's Intellectual Property
 
YES
NO
N/A
Minimum Unrestricted Cash
Maintain unrestricted cash or cash equivalents of the Loan Parties of not less than Seventy Million Dollars ($70,000,000) at all times, all of which shall be held in a Deposit Account of one or more Loan Parties maintained with Bank that are not Excluded Accounts and are subject to an assignment of deposit in form and substance satisfactory to Bank (it being acknowledged and agreed by Bank that the form of Assignment of Deposit executed and delivered on the Closing Date is satisfactory).
 
YES
NO
N/A
Minimum EBITDA
During any Covenant Testing Period, maintain EBITDA measured on the last day of each quarter for the one-quarter period ending on such date, of at least the amount
for the one-quarter period ending on the date set forth opposite of the column “Quarter Ending” in the table in Section 6.7(c) of the Agreement for that period.
 
YES
NO
N/A
         
Applications or Registrations of Intellectual Property Rights Filed with the United States Patent and Trademark Office
   
YES
NO
 
           
Inbound Licenses or Agreements
   
YES
NO
 
           
Creation/Acquisition of Subsidiaries
   
YES
NO
 
 
Please Enter Below Comments Regarding Violations:
 
The Responsible Officer further acknowledges that at any time Borrower is not in compliance with all the terms set forth in the Agreement, including, without limitation, the financial covenants, no credit extensions will be made.
 
Very truly yours,
 
PHENOMEX INC.
 
Authorized Signer
 
Name:
   
 
Title:
   


4          The provisions included here are for illustrative purposes and the parties shall refer to the Agreement for the requirements of the covenants in full.

Exhibit C - 2

EXHIBIT D
 
Irrevocable Proxy

IRREVOCABLE PROXY

(Interests of_____________________)

For good and valuable consideration, receipt of which is hereby acknowledged, the undersigned (the "Pledgor") hereby irrevocably (to the fullest extent permitted by law) appoints and constitutes East West Bank, a California banking corporation, as Bank (together with its successors and assigns, the "Proxy Holder"), the attorney and proxy of the undersigned with full power of substitution and resubstitution, to the full extent of the undersigned's rights with respect to all of the Shares (as defined in the Loan and Security Agreement, defined below) which constitute the shares or other equity interests (the "Interests") of ________________(the "Company"). Upon the execution hereof, all prior proxies given by the undersigned with respect to any of the Interests are hereby revoked, and no subsequent proxies will be given with respect to any of the Interests except as Proxy Holder may otherwise agree to in writing in its discretion.

This proxy is IRREVOCABLE, is COUPLED WITH AN INTEREST and is granted pursuant to that certain Second Amended and Restated Loan and Security Agreement dated as of March 21, 2023 (the "Loan and Security Agreement") by and among the Proxy Holder and PhenomeX Inc., a Delaware corporation (the "Borrower"), as amended, restated, amended and restated, modified or supplemented from time to time, in consideration of the credit extended pursuant to the Loan and Security Agreement. Capitalized terms used herein but not otherwise defined in this irrevocable proxy have the meanings ascribed to such terms in the Loan and Security Agreement.

The Proxy Holder named above will be empowered and may exercise this irrevocable proxy, upon the occurrence and during the continuance of an Event of Default, to take any of the following actions: (i) transfer or register (or both) in its name or in the name of its nominee the whole or any part of the Shares and its rights under its irrevocable appointment as attorney-in-fact pursuant to this proxy and the Loan and Security Agreement, including on the books of the Company, (ii) exchange certificates or instruments representing or evidencing Shares for certificates or instruments of smaller or larger denominations, (iii) exercise any or all of the voting and all other rights as a holder with respect thereto, with full power of substitution to do so, (iv) collect and receive all dividends and other payments and distributions made thereon, (v) notify the parties obligated on any of the Shares to make payment to Bank of any amounts due or to become due thereunder, (vi) endorse instruments in the name of Pledgor to allow collection of any of the Shares, (vii) enforce collection of any of the Shares by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or renew for any period (whether or not longer than the original period) any liabilities of any nature of any Person with respect thereto, (viii) sell in one or more sales after ten (10) days' notice of the time and place of any public sale (which notice Pledgor agrees is commercially reasonable) the whole or any part of the Shares, (ix) ( ) exercise all other rights, powers, privileges and remedies to which a holder of the Shares would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), (x) otherwise act with respect to the Shares as though Bank was the outright owner thereof, (xi) exercise any other rights or remedies Bank may have under the Uniform Commercial Code or other applicable law, and (xii) take any action and execute any (i) instrument which Bank may deem necessary or advisable to accomplish the purposes of the Loan and Security Agreement.
D-1

This irrevocable proxy shall remain in effect with respect to the Shares until payment in full of the Obligations and termination of the Bank's commitments to make any Credit Extensions under the Loan and Security Agreement, notwithstanding any limitations to the contrary set forth in the [Certificate of Incorporation, Bylaws] or other organizational documents of the undersigned or the Company or the laws of the State of ______________.

Any obligation of the undersigned hereunder shall be binding upon the heirs, successors and assigns of the undersigned (including any transferee of any of the Interests).

[SIGNATURE PAGE FOLLOWS]
D-2

IN WITNESS WHEREOF, the undersigned has executed this irrevocable proxy as of this _____ day of ___________________, 20___.


 
By:
 
 
Name:
 
 
Title:
 





Signature Page to Irrevocable Proxy

D-3

EXHIBIT E
 
[reserved]


EXHIBIT F
 
Form of Intellectual Property Security Agreement

FORM OF
 
INTELLECTUAL PROPERTY SECURITY AGREEMENT

This Intellectual Property Security Agreement is entered into as of _______________ ____, 20__ by and between EAST WEST BANK, a California banking corporation (“Bank”) and _______________________________ (“Grantor”).
 
RECITALS
 
A.          Bank has agreed to make certain advances of money and to extend certain financial accommodations (the “Loans”) to BERKELEY LIGHTS, INC., a Delaware corporation ("Borrower") in the amounts and manner set forth in that certain Second Amended and Restated Loan and Security Agreement, dated as of March 21, 2023 (as the same may be amended, restated, amended and restated, modified or supplemented from time to time, including but not limited to that certain Amendment to Loan and Security Agreement dated of even date herewith the “Loan Agreement”; capitalized terms used herein are used as defined in the Loan Agreement), by and among Bank, Borrower and ISOPLEXIS CORPORATION, a Delaware corporation.  Bank is willing to make the Loans to Borrower, but only upon the condition, among others, that upon the occurrence of an IP Trigger Milestone, Grantor shall grant to Bank a perfected first priority security interest on each Loan Party's Intellectual Property to secure the obligations of the Loan Parties under the Loan Agreement.
 
B.          Pursuant to the terms of the Loan Agreement, Grantor has granted to Bank a security interest in all of Grantor’s right, title and interest, whether presently existing or hereafter acquired, in, to and under all of the Collateral.
 
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and intending to be legally bound, as collateral security for the prompt and complete payment when due of its obligations under the Loan Agreement and all other agreements now existing or hereafter arising between the Loan Parties and Bank, Grantor hereby represents, warrants, covenants and agrees as follows:
 
AGREEMENT
 
1.          To secure its obligations under the Loan Agreement and under any other agreement now existing or hereafter arising between the Loan Parties and Bank, Grantor grants and pledges to Bank a security interest in all of Grantor’s right, title and interest in, to and under its Intellectual Property (including without limitation those Copyrights, Patents and Trademarks listed on Exhibits A, B and C hereto), and including without limitation all proceeds thereof (such as, by way of example but not by way of limitation, license royalties and proceeds of infringement suits), the right to sue for past, present and future infringements, all rights corresponding thereto throughout the world and all re-issues, divisions continuations, renewals, extensions and continuations-in-part thereof.
 
F-1


2.          This security interest is granted in conjunction with the security interest granted to Bank under the Loan Agreement.  The rights and remedies of Bank with respect to the security interest granted hereby are in addition to those set forth in the Loan Agreement and the other Loan Documents, and those which are now or hereafter available to Bank as a matter of law or equity.  Each right, power and remedy of Bank provided for herein or in the Loan Agreement or any of the Loan Documents, or now or hereafter existing at law or in equity shall be cumulative and concurrent and shall be in addition to every right, power or remedy provided for herein and the exercise by Bank of any one or more of the rights, powers or remedies provided for in this Intellectual Property Security Agreement, the Loan Agreement or any of the other Loan Documents, or now or hereafter existing at law or in equity, shall not preclude the simultaneous or later exercise by any person, including Bank, of any or all other rights, powers or remedies.
 
3.          Grantor represents and warrants that Exhibits A, B, and C attached hereto set forth any and all intellectual property rights in connection to which Grantor has registered or filed an application with either the United States Patent and Trademark Office or the United States Copyright Office, as applicable.
 
4.          This Intellectual Property Security Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute the same instrument.  The words "execution," "signed," "signature," "delivery," and words of like import in or relating to this Intellectual Property Security Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. If any signature is delivered by facsimile transmission or by email delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing this Intellectual Property Security Agreement (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original hereof.
 
[Signature pages follow]
 
F-2

IN WITNESS WHEREOF, the parties have caused this Intellectual Property Security Agreement to be duly executed by its officers thereunto duly authorized as of the first date written above.
 
     
GRANTOR:
         
Address of Grantor:
       
         
     
By:
 
Attn:
       
     
Title:
 
         
         
     
BANK:
 
         
Address of Bank:
   
EAST WEST BANK
         
135 North Robles Avenue, 2nd Floor
   
By:
 
Pasadena, California 91101
       
Attn:  Eric Watson, Senior Vice President
   
Title:
 

F-3

EXHIBIT A
 
Copyrights
 
Description
Registration Number
Registration Date
     
     
     
     

F-4

EXHIBIT B
 
Patents
 
Description
Patent/App. No.
File Date
     
     
     
     

F-5

EXHIBIT C
 
Trademarks
 
Description
Serial/Registration No.
File Date
     
     
     
     

F-6

EAST WEST BANK
 
 
AUTOMATIC DEBIT AUTHORIZATION
Member FDIC
 
   
   
To:  East West Bank
 
Re:  Loan #                769631502
 
You are hereby authorized and instructed to charge account No. _____8003098608______________ in the name of
for principal, interest and other payments due on above referenced loan as set forth below and credit the loan referenced above.
 
☒          Debit each interest payment as it becomes due according to the terms of the Loan and Security Agreement and any renewals or amendments thereof.
 
☒          Debit each principal payment as it becomes due according to the terms of the Loan and Security Agreement and any renewals or amendments thereof.
 
This Authorization is to remain in full force and effect until revoked in writing by Borrower.
 
 
Borrower Signature:
Date:
   
   


USA PATRIOT ACT
 
NOTICE
OF
CUSTOMER IDENTIFICATION
 
IMPORTANT INFORMATION ABOUT PROCEDURES
FOR OPENING A NEW ACCOUNT
 
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account.
 
WHAT THIS MEANS FOR YOU: when you open an account, we will ask your name, address, date of birth, and other information that will allow us to identify you.  We may also ask to see your driver's license or other identifying documents.
 

Agreement to Furnish Insurance to Loan and Security Agreement

Borrower and Guarantor:          PHENOMEX INC. and ISOPLEXIS CORPORATION
 
I understand that the Second Amended Loan and Security Agreement which I executed in connection with this transaction requires me to provide certain insurance policies, including, without limitation, a physical damage insurance policy including a Lenders Loss Payable Endorsement in favor of East West Bank (the "Bank") as shown below.
 
The following minimum insurance must be provided according to the terms of the security documents (together with such other insurance as may be required by the Bank pursuant to the terms of the security documents).
 
Fire & Extended Coverage
Lender's Loss Payable Endorsement
 
I may obtain the required insurance from any company that is acceptable to the Bank, and will deliver proof of such coverage with an effective date of March 21, 2023 or earlier.
 
I understand and agree that if I fail to deliver proof of insurance to the Bank at the address below, or upon the lapse or cancellation of such insurance, the Bank may procure Lender's Single Interest Insurance or other similar coverage on the property.  If the Bank procures insurance to protect its interest in the property described in the security documents, the cost for the insurance will be added to my indebtedness as provided in the security documents.  Lender's Single Interest Insurance shall cover only the Bank's interest as a secured party, and shall become effective at the earlier of the funding date of this transaction or the date my insurance was canceled or expired.  I UNDERSTAND THAT LENDER'S SINGLE INTEREST INSURANCE WILL PROVIDE ME WITH ONLY LIMITED PROTECTION AGAINST PHYSICAL DAMAGE TO THE COLLATERAL, UP TO THE BALANCE OF THE LOAN, HOWEVER, MY EQUITY IN THE PROPERTY WILL NOT BE INSURED.  FURTHER, THE INSURANCE WILL NOT PROVIDE MINIMUM PUBLIC LIABILITY OR PROPERTY DAMAGE INDEMNIFICATION AND DOES NOT MEET THE REQUIREMENTS OF THE FINANCIAL RESPONSIBILITY LAW.
 
CALIFORNIA CIVIL CODE SECTION 2955.5. HAZARD INSURANCE DISCLOSURE:  No lender shall require a borrower, as a condition of receiving or maintaining a loan secured by real property, to provide hazard insurance coverage against risks to the improvements on that real property in an amount exceeding the replacement value of the improvements on the property.

 
Bank Address for Insurance Documents:
 
 
 
East West Bank  
 
 
135 N Robles Avenue, 2nd Floor 
 
 
Pasadena, CA  91101 
 
 
 
 

I acknowledge having read the provisions of this agreement, and agree to its terms.  I authorize the Bank to provide to any person (including any insurance agent or company) any information necessary to obtain the insurance coverage required.
 
Date:  March 21, 2023
OWNERS OF COLLATERAL
 
 
PHENOMEX INC.
 
ISOPLEXIS CORPORATION
 

 
By:
 
 
Name:
 
 
Title:
 


 
INSURANCE VERIFICATION
       
             
 
Date
   
Phone
   
 
Agents Name
   
Person Talked To
   
 
Agents Address
         
 
Insurance Company
         
 
Policy Number(s)
         
 
Effective Dates:  From:
   
To:
   
 
Deductible $
   
Comments:
   
             


-2-


Exhibit 10.2

WARRANT CERTIFICATE
 
THIS WARRANT CERTIFICATE AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SHARES IS EFFECTIVE UNDER THE SECURITIES ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE SECURITIES ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW.
 
Warrant Shares Issuable:
496,560 shares of Common Stock
   
Warrant Certificate No.:
1
   
Issue Date:
December 30, 2020 (the “Issue Date”)
 
FOR VALUE RECEIVED, PhenomeX Inc., a Delaware corporation (the “Company”), hereby certifies that Perceptive Credit Holdings III, LP or any of its registered assigns (collectively, the “Holder”) is entitled to purchase from the Company up to 496,560 duly authorized, validly issued, fully paid and nonassessable shares of the Company’s Common Stock at the applicable per share Exercise Price (defined below), all subject to the terms, conditions and adjustments set forth below in this Warrant Certificate. Certain capitalized terms used herein are defined in Section 1.
 
The original warrant certificate for 97,504 shares of Series D preferred stock (the “Original Warrant Certificate”) of IsoPlexis Corporation (“IsoPlexis”) was issued on the Issue Date pursuant to the terms of the Credit Agreement and Guaranty, dated as of December 30, 2020 (as amended or otherwise modified from time to time, the “Credit Agreement”), among IsoPlexis, as the borrower, the guarantors from time to time party thereto, the lenders from time to time party thereto and Perceptive Credit Holdings III, LP, as administrative agent. On October 12, 2021, IsoPlexis completed its initial public offering pursuant to which all shares of IsoPlexis’ outstanding Series D preferred stock were automatically converted into shares of IsoPlexis’ common stock, and pursuant to the terms of the Original Warrant Certificate, such warrant became exercisable for 811,374 shares of IsoPlexis common stock at an exercise price of $9.62. In connection with the Third Amendment to the Credit Agreement dated as of March 30, 2022 (the “Credit Agreement Amendment Date”), IsoPlexis and the Holder agreed to (i) lower the exercise price from $9.62 per share to $6.00 per share and (ii) re-issue, replace and amend the Original Warrant Certificate reflecting the aggregate number of shares of IsoPlexis common stock, and the revised exercise price, in effect as of the Credit Agreement Amendment Date (the “First Amended Warrant Certificate”). On March 20, 2023 (the “Amendment Date”), IsoPlexis consummated a merger with Iceland Merger Sub Inc., a wholly owned subsidiary of the Company, under which IsoPlexis became a wholly owned subsidiary of the Company (the “Merger”).  In connection with the Merger and to adjust the First Amended Warrant Certificate pursuant to the terms thereof, the Company, IsoPlexis and the Holder have agreed to (i) change the exercise price from $6.00 per share of IsoPlexis common stock to $9.80 per share of Common Stock, (ii) change the number of Warrant Shares from 811,374 shares of IsoPlexis common stock to 496,560 shares of Common Stock and (iii) re-issue the First Amended Warrant Certificate in the form of this Warrant Certificate (this “Warrant Certificate”) reflecting the revised Exercise Price and number of Warrant Shares.  This Warrant Certificate amends and replaces the First Amended Warrant Certificate in its entirety, and the First Amended Warrant Certificate is hereby terminated and of no further force or effect. For the avoidance of doubt, the Issue Date shall remain December 30, 2020 for all purposes hereunder.
 

Section 1.         Definitions. The following terms when used herein have the following meanings:
 
Aggregate Exercise Price means, with respect to any exercise of this Warrant Certificate for Warrant Shares, an amount equal to the product of (i) the number of Warrant Shares in respect of which this Warrant Certificate is then being exercised pursuant to Section 3 multiplied by (ii) the Exercise Price.
 
Bloomberg has the meaning set forth within the definition of VWAP.
 
Board means the board of directors of the Company.
 
Business Day means any day, except a Saturday, Sunday or legal holiday, on which banking institutions in the city of New York, New York are authorized or obligated by law or executive order to close.
 
Cashless Exercise has the meaning set forth in Section 3(b).
 
Change in Control means a transaction or series of related transactions in which a Person, or a group of related Persons, that is not an affiliate of the Company or a stockholder, director or officer of the Company or an affiliate thereof, acquires from stockholders of the Company shares representing more than fifty percent (50%) of the outstanding voting power of the Company
 
Common Stock means the common stock, par value $0.00005 per share, of the Company, and any capital stock into which such Common Stock shall have been converted, exchanged or reclassified following the date hereof.
 
Common Stock Equivalents means any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, the Warrant Shares and any other debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
 
Company has the meaning set forth in the preamble.
 
Convertible Securities means any debt, equity or other securities that are, directly or indirectly, convertible into or exchangeable for Common Stock.
 
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Credit Agreement has the meaning set forth in the preamble.
 
Demand Registration has the meaning set forth in Section 6(b).
 
DTC” means the Depository Trust Company.
 
DWAC has the meaning set forth in Section 3(i).
 
Excluded Issuance” means (i) shares of Common Stock issued or issuable to officers, directors and employees of, or consultants to, the Company pursuant to stock grants, option plans, purchase plans or other employee stock incentive programs or arrangements approved by the Board or upon exercise of options or warrants granted to such parties pursuant to any such plan or arrangement; (ii) shares of Common Stock issued upon the exercise or conversion of Options or Convertible Securities outstanding as of the Issue Date, (iii) shares of Common Stock issued or issuable pursuant to any event for which adjustment is made pursuant to Section 4, and (iv) any issuance of Warrant Shares upon the exercise of this Warrant Certificate.
 
Exercise Certificate has the meaning set forth in Section 3(a)(i).
 
Exercise Date means, for any given exercise of this Warrant Certificate, whether in whole or in part, the date on which the conditions to such exercise as set forth in Section 3 shall have been satisfied at or prior to 5:00 p.m., Eastern time, on a Business Day, including, without limitation, the receipt by the Company of the Exercise Certificate and the applicable Aggregate Exercise Price.
 
Exercise Period has the meaning set forth in Section 2.
 
Exercise Price means a per share price equal to $9.80.
 
Fair Market Value means, if the Company’s equity securities are listed on a Trading Market, as of any particular Trading Day, (i) the VWAP of such equity securities for such day or (ii) if there have been no sales on any Trading Market on any such day, the average of the highest bid and lowest asked prices for the Company’s equity securities on all applicable Trading Markets at the end of such day. If the Company’s equity securities are not listed, quoted or otherwise available for trading, the “Fair Market Value” of the applicable class of equity securities shall be the fair market value, per share, of such equity securities as determined jointly by the Board and the Holder.
 
FAST” has the meaning set forth in Section 3(i).
 
Fundamental Change means any event or circumstance that constitutes or results in (i) a Change in Control or (ii) a Liquidity Event.
 
Holder has the meaning set forth in the preamble.
 
Investors Rights Agreement means that certain Sixth Amended and Restated Investors’ Rights Agreement by and among IsoPlexis, certain investors party thereto, and certain other parties dated as of December 30, 2020, as amended.
 
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Issue Date has the meaning set forth in the preamble.
 
Liquidity Event” means:
 
(a)      a merger or consolidation in which the Company is a constituent party or a subsidiary of the Company is a constituent party and the Company issues shares of its capital stock pursuant to such merger or consolidation, except for (i) any such merger or consolidation with an entity that is an affiliate of the Company or an affiliate of any shareholder of the Company or (ii) any such merger or consolidation involving the Company or a subsidiary in which the shares of capital stock of the Company outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation;
 
(b)      the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company to an independent third party that is not an affiliate of the Company or an affiliate of any shareholder of the company of all or substantially all the assets of the Company and its subsidiaries taken as a whole or the sale or disposition (whether by merger, consolidation or otherwise) of one or more subsidiaries of the Company if substantially all of the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Company; or
 
(c)      the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary.
 
For the avoidance of doubt, a public offering of the capital stock of the Company or of any entity into which the Company has been merged or consolidated, shall not constitute a “Liquidity Event” for the purpose of this Warrant.
 
Marketable Securities means securities that (a) are tradable on an established national U.S. or non-U.S. stock exchange or reported through NASDAQ or a comparable established non-U.S. over-the-counter trading system and (b) are not subject to restrictions on transfer under the Securities Act or contractual restrictions on transfer.
 
Nasdaq means The Nasdaq Stock Market, Inc.
 
Options means any warrants or other rights or options to subscribe for or purchase Common Stock or Convertible Securities.
 
OTC Bulletin Board means the National Association of Securities Dealers, Inc. OTC Bulletin Board.
 
Person means any individual, sole proprietorship, partnership, limited liability company, corporation, joint venture, trust, incorporated organization or government or department or agency thereof.
 
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Prospectus means the prospectus or prospectuses included in any Registration Statement, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in such prospectus or prospectuses.
 
Purchase Rights has the meaning set forth in Section 5.
 
Registrable Securities shall mean (i) the Warrant Shares issuable upon the exercise of this Warrant Certificate and (ii) those securities defined as “Registrable Securities” under the Investors Rights Agreement. The parties hereto agree that, as such term is used in this Warrant Certificate and as such term is used in the Investors Rights Agreement, the Warrant Shares shall be deemed to be Registrable Securities for the purposes of the registration rights set forth in the Investors Rights Agreement at all times that the Holder has the right to acquire or obtain from the Company the Warrant Shares, whether or not such acquisition has actually been effected.
 
Registration Statement means any registration statement of the Company which covers any of the Registrable Securities, including the Prospectus, amendments and supplements to such Registration Statement, including post-effective amendments, all exhibits and all materials incorporated by reference in such Registration Statement.
 
SEC means the Securities and Exchange Commission or any successor thereto.
 
Securities Act means the Securities Act of 1933, as amended.
 
Successor Entity means, with respect to any Fundamental Change as a result of which the Company will not be the surviving entity, the successor entity resulting from such Fundamental Change.
 
Trading Day means a day on which the principal Trading Market is open for trading.
 
Trading Market means Nasdaq or, if the Company’s equity securities are not listed on Nasdaq, such other principal US or foreign exchange or market (including the OTC Bulletin Board) on which the Company’s equity securities are quoted or available for trading.
 
Transfer Agent has the meaning set forth in Section 3(c)(ii).
 
Unlegended Shares has the meaning set forth in Section 12(a)(iii).
 
Unrestricted Conditions has the meaning set forth in Section 12(a)(ii).
 
VWAP means, for any security as of any day or period of days (as the case may be), the volume weighted average sale price on Nasdaq as reported by, or based upon data reported by Bloomberg Financial Markets or an equivalent, reliable reporting service reasonably acceptable to the Holder and the Company (collectively, “Bloomberg”) or, if Nasdaq is not the principal trading market for such security, the volume weighted average sale price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg or, if no volume weighted average sale price is reported for such security by Bloomberg, then the last closing trade price of such security as reported by Bloomberg, or, if no last closing trade price is reported for such security by Bloomberg, the average of the bid prices of any market makers for such security that are listed in the over the counter market by the Financial Industry Regulatory Authority, Inc. or on the OTC Bulletin Board (or any successor) or in the “pink sheets” (or any successor) by the OTC Markets Group, Inc.; provided that if VWAP cannot be calculated for such security on such date in the manner provided above, the VWAP shall be the fair market value as mutually determined by the Company and the Holder.
 
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Warrant or “Warrant Certificate means this Warrant Certificate and all subsequent warrant certificates issued upon division, combination or transfer of, or in substitution for, this Warrant Certificate.
 
Warrant Register has the meaning set forth in Section 7.
 
Warrant Shares means the shares of Common Stock, or other capital stock of the Company then purchasable upon exercise of this Warrant Certificate in accordance with the terms of this Warrant Certificate.
 
Section 2.         Term of Warrant Certificate. Subject to the terms and conditions hereof, at any time or from time to time on or after the Issue Date and prior to 5:00 p.m., Eastern time, on the tenth anniversary of such date or, if such day is not a Business Day, on the next preceding Business Day (the “Exercise Period”), the Holder of this Warrant Certificate may exercise this Warrant Certificate for all or any part of the Warrant Shares purchasable hereunder (subject to adjustment as provided herein).
 
Section 3.         Exercise of Warrant Certificate.
 
(a)      Exercise Procedure. This Warrant Certificate may be exercised from time to time on any Business Day during the Exercise Period, for all or any part of the unexercised Warrant Shares, upon:
 
(i)          delivery to the Company at its then principal executive office of an Exercise Certificate in the form attached hereto as Exhibit A (each, an “Exercise Certificate”), duly completed (including specifying the number of Warrant Shares to be purchased) and executed; and
 
(ii)         payment to the Company of the Aggregate Exercise Price in accordance with Section 3(b);
 
(b)       Payment of the Aggregate Exercise Price. Payment of the Aggregate Exercise Price shall be made, at the option of the Holder as expressed in the Exercise Certificate, by any of the following methods:
 
(i)         by delivery to the Company of a certified or official bank check payable to the order of the Company or by wire transfer of immediately available funds to an account designated in writing by the Company, in the amount of such Aggregate Exercise Price;
 
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(ii)       by instructing the Company to withhold a number of Warrant Shares then issuable upon exercise of this Warrant Certificate with an aggregate Fair Market Value as of the Exercise Date equal to such Aggregate Exercise Price;
 
(iii)      by surrendering to the Company (x) Warrant Shares previously acquired by the Holder with an aggregate Fair Market Value as of the Exercise Date equal to such Aggregate Exercise Price or (y) any other securities or any debt of the Company (including shares of Common Stock) having a value as of the Exercise Date equal to the Aggregate Exercise Price (which value in the case of debt, shall be the principal amount thereof plus accrued and unpaid interest, and in the case of shares of Common Stock, shall be the Fair Market Value thereof); or
 
(iv)        any combination of the foregoing.
 
In the event of any withholding of Warrant Shares or surrender of other equity securities pursuant Section 3(b)(ii), (iii) or (iv) (solely to the extent of such withholding or surrender, a “Cashless Exercise”) where the number of shares whose value is equal to the Aggregate Exercise Price is not a whole number, the number of shares withheld by or surrendered to the Company shall be rounded up to the nearest whole share and the Company shall make a cash payment to the Holder (by delivery of a certified or official bank check or by wire transfer of immediately available funds) based on the incremental fraction of a share being so withheld by or surrendered to the Company in an amount equal to the product of (x) such incremental fraction of a share being so withheld or surrendered multiplied by (y) in the case of Common Stock, the Fair Market Value per Warrant Share as of the Exercise Date, and, in all other cases, the value thereof as of the Exercise Date determined in accordance with Section 3(b)(iii)(y).
 
For purposes of Rule 144, it is acknowledged and agreed that (i) the Warrant Shares issuable upon any exercise of this Warrant Certificate in any Cashless Exercise transaction shall be deemed to have been acquired on the Issue Date, and (ii) the holding period for any Warrant Shares issuable upon the exercise of this Warrant Certificate in any Cashless Exercise transaction shall be deemed to have commenced on the Issue Date.
 
(c)       Delivery of Stock Certificates.
 
(i)         With respect to any exercise of this Warrant Certificate by the Holder, upon receipt by the Company of an Exercise Certificate and delivery of the Aggregate Exercise Price (in accordance with Section 3(b)), the Company shall, within two (2) Business Days, issue and deliver (or cause its Transfer Agent to issue and deliver) in accordance with the terms hereof to or upon the order of the Holder that number Warrant Shares for the portion of this Warrant Certificate so exercised on such date, together with cash in lieu of any fraction of a share, as provided in Section 3(d). The stock certificate or certificates so delivered shall be, to the extent possible, in such denomination or denominations as the exercising Holder shall reasonably request in the Exercise Certificate and shall be registered in the name of the Holder or, subject to compliance with Section 8, such other Person’s name as shall be designated in the Exercise Certificate. This Warrant Certificate shall be deemed to have been exercised and such certificate or certificates of Warrant Shares shall be deemed to have been issued, and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such Warrant Shares for all purposes, as of the Exercise Date.
 
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(ii)        If, at the time of exercise, the Company has a Transfer Agent, then upon the exercise of this Warrant Certificate in whole or in part, the Company shall, at its own cost and expense, take all necessary action, including obtaining and delivering an opinion of counsel, to assure that the Company’s transfer agent (the “Transfer Agent”) shall issue Warrant Shares in the name of the Holder (or its nominee) or such other Persons as designated by the Holder (in compliance with Section 8) and in such denominations to be specified in the applicable Exercise Certificate. The Company represents and warrants that no instructions other than the foregoing instructions will be given to the Transfer Agent and that, unless waived by the Holder, this Warrant Certificate and the Warrant Shares will, if eligible at such time, be free-trading, and freely transferable, and will not contain a legend restricting the resale or transferability of the Warrant Shares if the Unrestricted Conditions are met.
 
(d)      Fractional Shares. The Company shall not be required to issue a fractional Warrant Share upon exercise of any Warrant Certificate. As to any fraction of a Warrant Share that the Holder would otherwise be entitled to purchase upon such exercise, the Company shall pay to such Holder an amount in cash (by delivery of a certified or official bank check or by wire transfer of immediately available funds) equal to the product of (i) such fraction multiplied by (ii) the Fair Market Value of one Warrant Share on the Exercise Date.
 
(e)       Surrender of this Warrant Certificate; Delivery of New Warrant Certificate.
 
(i)          The Holder shall not be required to physically surrender this Warrant Certificate to the Company until the Holder has purchased all of the Warrant Shares available hereunder and this Warrant Certificate has been exercised in full, in which case, the Holder shall, at the written request of the Company, surrender this Warrant Certificate to the Company for cancellation within three (3) Business Days after the date the final Exercise Certificate is delivered to the Company. Partial exercises of this Warrant Certificate resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Holder and any assignee, by acceptance of this Warrant Certificate, acknowledge and agree that, by reason of the provisions of this Section 3(e), following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
 
(ii)        Notwithstanding the foregoing, the Holder may request that the Company (and the Company shall), at the time of delivery of the certificate or certificates representing the Warrant Shares being issued in accordance with Section 3(c), deliver to the Holder a new Warrant Certificate evidencing the rights of the Holder to purchase the unexpired and unexercised Warrant Shares called for by this Warrant Certificate. Unless otherwise agreed upon by the Holder in its sole discretion, such new Warrant Certificate shall in all other respects be identical to this Warrant Certificate.
 
(f)        Valid Issuance of Warrant Certificate and Warrant Shares; Payment of Taxes. The Company hereby represents, covenants and agrees:

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(i)          This Warrant Certificate is, and any Warrant Certificate issued in substitution for or replacement of this Warrant Certificate shall be, upon issuance, duly authorized and validly issued.
 
(ii)         All Warrant Shares issuable upon the exercise of this Warrant Certificate (or any substitute or replacement Warrant Certificate) pursuant to the terms hereof shall be, upon issuance, and the Company shall take all such actions as may be necessary or appropriate in order that such Warrant Shares are, validly issued, fully paid and non-assessable, issued without violation of any preemptive or similar rights of any stockholder of the Company and free and clear of all taxes, liens and charges.
 
(iii)       The Company shall take all such actions as may be necessary to ensure that all such Warrant Shares are issued without violation by the Company of any applicable law or governmental regulation or any requirements of any Trading Market upon which shares of Common Stock or other securities constituting Warrant Shares may be listed at the time of such exercise (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance).
 
(iv)       The Company shall cause the Warrant Shares, immediately upon such exercise, to be listed on any Trading Market upon which shares of Common Stock or other securities constituting Warrant Shares are listed at the time of such exercise.
 
(v)         The Company shall pay all expenses in connection with, and all taxes and other governmental charges that may be imposed with respect to, the issuance or delivery of Warrant Shares upon exercise of this Warrant Certificate.
 
(g)     Conditional Exercise. Notwithstanding any other provision hereof, if an exercise of any portion of this Warrant Certificate is to be made in connection with a public offering or a Fundamental Change, such exercise may, at the election of the Holder, be conditioned upon the consummation of such transaction, in which case such exercise shall not be deemed to be effective until immediately prior to the consummation of such transaction.
 
(h)      Reservation of Shares. During the Exercise Period, the Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock or other securities constituting Warrant Shares, solely for the purpose of issuance upon the exercise of this Warrant Certificate, the maximum number of Warrant Shares issuable upon the exercise of this Warrant Certificate, and the par value per Warrant Share shall at all times be less than or equal to the Exercise Price. The Company shall not increase the par value of any Warrant Shares receivable upon the exercise of this Warrant Certificate above the Exercise Price, and 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 upon the exercise of this Warrant Certificate.
 
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(i)       Delivery of Electronic Shares. If the Company has a Transfer Agent and the Transfer Agent is participating in the DTC Fast Automated Securities Transfer (“FAST”) program, upon written request of the Holder and in lieu of delivering physical certificates representing any shares of Common Stock (including any Warrant Shares) to be delivered under or in connection with this Warrant Certificate, the Company shall use its commercially reasonable efforts to cause the Transfer Agent to electronically transmit the such Common Stock to the Holder by crediting the account of the Holder’s prime broker with the DTC through its Deposit Withdrawal Agent Commission (“DWAC”) system. The time periods for delivery described herein shall apply to the electronic transmittals described herein. Any delivery not effected by electronic transmission shall be effected by delivery of physical certificates.
 
(j)       Dispute Resolution. In the case of any dispute as to the determination of Fair Market Value, any closing sales price or VWAP of the Company’s Common Stock, the arithmetic calculation of the Exercise Price or any other computation required to be made hereunder, in the event the Holder and the Company are unable to settle such dispute within five (5) Business Days, then either party may elect to submit the disputed matter(s) for resolution to a mutually agreeable investment bank. Such investment bank’s determination of such disputed matter(s) shall be binding upon all parties absent demonstrable error, and the Company and the Holder shall each pay one half of the fees and costs of such investment banker.
 
(k)      Automatic Exercise on a Liquidity Event. If a Liquidity Event occurs with respect to the Company at any time prior to the expiration of the Exercise Period and there remain any Warrant Shares subject to this Warrant Certificate then, provided that the Fair Market Value of one Warrant Share (as determined in connection with the Liquidity Event) is greater than the Exercise Price:
 
(i)          if the consideration to be received by the holders of the Company’s equity securities constituting Warrant Shares is cash and/or Marketable Securities, this Warrant shall be deemed automatically exercised, in full, without the requirement to deliver any Exercise Certificate, immediately prior to the closing of such Liquidity Event and the Holder shall receive, in the same proportions as the holders of the Company’s equity securities constituting Warrant Shares, such amounts of cash and/or Marketable Securities as the holders of the Company’s equity securities constituting Warrant Shares (and if the holders of such equity securities are given any choice as to the cash or Marketable Securities to be received in such Liquidity Event, then the Holder shall be given the same choice); and
 
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(ii)       if the consideration to be received by the holders of the Company’s equity securities constituting Warrant Shares is not cash and/or Marketable Securities (an “Illiquid Sale”), then, unless exercised by the Holder (in the Holder’s sole discretion) prior to the consummation of such Illiquid Sale, (x) this Warrant shall remain outstanding and (y) upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Illiquid Sale, at the option of the Holder, the number of shares of equity securities of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Illiquid Sale by a holder of the number of shares of Warrant Shares for which this Warrant is exercisable immediately prior to such Illiquid Sale. For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of the equity securities constituting Warrant Shares in such Illiquid Sale, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of equity securities constituting Warrant Shares are given any choice as to the securities, cash or property to be received in an Illiquid Sale, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Illiquid Sale. The Company shall cause any Successor Entity in an Illiquid Sale to assume in writing all of the obligations of the Company under this Warrant pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Illiquid Sale and shall, at the option of the Holder, 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 which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of equity securities receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Illiquid Sale, 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 Illiquid Sale and the value of such shares of capital stock, such 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 Illiquid Sale), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Illiquid Sale, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Illiquid Sale, the provisions of this Warrant 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.
 
(l)        Automatic Exercise Prior to Expiration. If immediately prior to the expiration of the Exercise Period there remain any Warrant Shares subject to this Warrant Certificate, and as of such time, the Fair Market Value of one Warrant Share is greater than the then applicable Exercise Price, then this Warrant Certificate shall be deemed to have been automatically exercised by the Holder, in full, immediately prior to the expiration of the Exercise Period on a Cashless Exercise basis for the full number of remaining Warrant Shares, without the requirement for the delivery of an Exercise Certificate.
 
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(m)     Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to this Section 3 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Certificate, the Holder (together with the Holder’s affiliates, and any other persons acting as a group together with the Holder or any of the Holder’s affiliates), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock Equivalents beneficially owned by the Holder and its affiliates shall include the number of shares of Common Stock Equivalents issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock Equivalents which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its affiliates, and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its affiliates. Except as set forth in the preceding sentence, for purposes of this Section 3(m), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, 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 Exchange 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 3(m) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any affiliates) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of an Exercise Certificate shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any affiliates) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 3(m), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the SEC, as the case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice from the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written request of a Holder, the Company shall within three (3) Business Days confirm orally and in writing to the 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 or its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation shall be 9.99% of the number of shares of Common Stock and Common Stock Equivalents outstanding immediately after giving effect to the applicable issuance of Warrant Shares issuable upon exercise of this Warrant if at the time of exercise the Company is a “reporting issuer” under the Securities Exchange Act of 1934. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3(m) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
 
Section 4.         Anti-Dilution Adjustments.
 
(a)     Adjustment to Exercise Price and Number of Warrant Shares Upon Dividend, Subdivision or Combination of Common Stock. If the Company shall, at any time or from time to time after the Issue Date, (i) pay a dividend or make any other distribution upon the Common Stock or any other capital stock of the Company payable in shares of Common Stock or in Options or Convertible Securities, or (ii) subdivide (by any stock split, recapitalization or otherwise) its outstanding shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to any such dividend, distribution or subdivision shall be proportionately reduced and the number of Warrant Shares issuable upon exercise of this Warrant Certificate shall be proportionately increased. If the Company at any time combines (by combination, reverse stock split or otherwise) its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect immediately prior to any such combination shall be proportionately increased and the number of Warrant Shares issuable upon exercise of this Warrant Certificate immediately prior to such combination shall be proportionately decreased. Any adjustment under this Section 4(a) shall become effective at the close of business on the date the dividend, subdivision or combination becomes effective.
 
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(b)       Adjustment to Exercise Price and Number of Warrant Shares Upon Reorganization or Reclassification.
 
(i)       Unless the Holder otherwise consents (in its sole discretion), the event of any (A) capital reorganization of the Company, (B) reclassification of the stock of the Company (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split-up or combination of shares), (C) Fundamental Change or (D) other similar transaction, including a Liquidity Event in which the Warrant Certificate is not exercised (each an “Adjustment Event”), in each case which entitles the holders of Common Stock to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock:
 
(1)       this Warrant Certificate shall, immediately after such Adjustment Event remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of Warrant Shares then exercisable under this Warrant Certificate, be exercisable for the kind and number of shares of stock or other securities or assets of the Company resulting from such transaction to which the Holder would have been entitled upon such Adjustment Event if the Holder had exercised this Warrant Certificate in full immediately prior to the time of such Adjustment Event and acquired the applicable number of Warrant Shares then issuable hereunder as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of this Warrant Certificate); and
 
(2)       appropriate adjustment (in form and substance reasonably satisfactory to the Holder) shall be made with respect to the Holder’s rights under this Warrant Certificate to insure that the provisions of this Section 4 shall thereafter be applicable, as nearly as possible, to this Warrant Certificate in relation to any shares of stock, securities or assets thereafter acquirable upon exercise of this Warrant Certificate.
 
The provisions of this Section 4(b) shall similarly apply to successive Adjustment Events and the Company shall not effect such Adjustment Event unless, prior to the consummation of such transaction, the successor entity has assumed the obligations of the Company under this Warrant Certificate by delivering to the Holder a written instrument substantially similar to this Warrant Certificate and reasonably satisfactory to the Holder.
 
(ii)        Notwithstanding anything to the contrary contained herein, with respect to any corporate event or other transaction contemplated by this Section 4(b), the Holder shall have the right to elect, prior to the consummation of such event or transaction, to exercise its rights under Section 2 instead of giving effect to Section 4(b)(i).
 
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(c)     Certain Events. If any event of the type contemplated by the provisions of this Section 4 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features) occurs, then the Board shall make an appropriate adjustment in the Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant Certificate so as to protect the rights of the Holder in a manner consistent with the provisions of this Section 4; provided that no such adjustment pursuant to this Section 4(c) shall increase the Exercise Price or decrease the number of Warrant Shares issuable hereunder as otherwise determined pursuant to this Section 4.
 
(d)       Certificate as to Adjustment.
 
(i)        As promptly as reasonably practicable following any adjustment of the Exercise Price or the number of Warrant Shares issuable upon exercise of this Warrant Certificate, but in any event not later than three (3) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation thereof.
 
(ii)         As promptly as reasonably practicable following the receipt by the Company of a written request by the Holder, but in any event not later than three (3) Business Days thereafter, the Company shall furnish to the Holder a certificate of an executive officer certifying the Exercise Price then in effect and the number of Warrant Shares for which this Warrant Certificate is exercisable, or the amount, if any, of other shares of stock, securities or assets then issuable upon exercise of this Warrant Certificate.
 
(e)      Notices. In the event that the Company shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon exercise of this Warrant Certificate):
 
(i)         for the purpose of entitling or enabling them to receive any dividend or other distribution, to vote at a meeting (or by written consent), to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive any other security; or
 
(ii)       approving or enabling any capital reorganization of the Company, any reclassification of the Common Stock of the Company or any Fundamental Change;
 
then, and in each such case, the Company shall send or cause to be sent to the Holder at least thirty (30) days prior to the applicable record date or the applicable expected effective date, as the case may be, for the event, a written notice specifying, as the case may be, (A) the record date for such dividend, distribution, meeting or consent or other right or action, and a description of such dividend, distribution or other right or action to be taken at such meeting or by written consent, or (B) the effective date on which such Fundamental Change is proposed to take place, and the date, if any is to be fixed, as of which the books of the Company shall close or a record shall be taken with respect to which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon exercise of this Warrant Certificate) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such Fundamental Change, and the amount per share and character of such exchange applicable to this Warrant Certificate and the Warrant Shares.
 
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Section 5.        Purchase Rights. In addition to any adjustments pursuant to Section 4, if at any time the Company grants, issues or sells (other than in an Excluded Issuance) any shares of Common Stock, Options, Convertible Securities or rights to purchase capital stock, securities or other property over which the holders of Common Stock have a preemptive purchase right (the “Purchase Rights”), then the Holder shall be entitled (but not required) to acquire, upon the same terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder would have acquired if the Holder had held the number of Warrant Shares acquirable upon complete exercise of this Warrant Certificate 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.
 
Section 6.         Registration Rights.
 
(a)       Investors Rights Agreement. The Company and the Holder agree that, as of the Issue Date:
 
(i)         The Warrant Shares and the Holder shall have certain registration rights pursuant to and as set forth in the Investors Rights Agreement, including rights to have the Warrant Shares issuable upon exercise of this Warrant Certificate included in a Registration Statement initiated pursuant to Section 2.1 (Demand Registration) or Section 2.2 (Company Registration) of the Investors Rights Agreement;
 
(ii)       The Holder shall be deemed to be a “Holder” and a “Major Investor” for the purpose of exercising all rights granted to “Holders” and “Major Investors” (as defined in the Investors Rights Agreement) under the Investors Rights Agreement;
 
(iii)       The Warrant Shares shall be “Registrable Securities” under the Investors Rights Agreement for the purpose of exercising all rights attached to the Registrable Securities under the Investors Rights Agreement, including prior to exercise of this Warrant Certificate, provided that, for the avoidance of doubt, the Holder may not require that the Warrant Shares be registered on a Trading Market unless and until this Warrant Certificate has been validly exercised with respect to the Warrant Shares to be so registered and such Warrant Shares are eligible to be so registered in accordance with applicable law; and
 
(iv)       The provisions set forth in the Investors Rights Agreement, or any similar or replacement agreement relating to the registration rights of Registrable Securities (including the Warrant Shares), may not be amended, modified or waived without the prior written consent of Holder unless such amendment, modification or waiver affects the rights associated with the Warrant Shares in the same manner as such amendment, modification, or waiver affects the rights associated with all other shares of the same series and class as the Warrant Shares.
 
(b)       Rule 144 Reporting. For the avoidance of doubt, the Holder shall be a “Holder” (as defined in the Investors Rights Agreement) for all purposes of Section 2.9 (Reports Under Exchange Act) of the Investors Rights Agreement.
 
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Section 7.       Warrant Register. The Company shall keep and properly maintain at its principal executive offices a register (the “Warrant Register”) for the registration of this Warrant Certificate and any transfers thereof. The Company may deem and treat the Person in whose name this Warrant Certificate is registered on such register as the Holder thereof for all purposes, and the Company shall not be affected by any notice to the contrary, except any assignment, division, combination or other transfer of this Warrant Certificate effected in accordance with the provisions of this Warrant Certificate.
 
Section 8.        Transfer of Warrant Certificate. Subject to Section 12 hereof, this Warrant Certificate and all rights hereunder are transferable, in whole or in part, by the Holder without charge to the Holder, upon surrender of this Warrant Certificate to the Company at its then principal executive offices with a properly completed and duly executed Assignment in the form attached hereto as Exhibit B, together with funds sufficient to pay any transfer taxes described in Section 3(f)(v) in connection with the making of such transfer. Upon such compliance, surrender and delivery and, if required, such payment, the Company shall execute and deliver a new Warrant Certificate or Warrant Certificates in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant Certificate evidencing the portion of this Warrant Certificate, if any, not so assigned and this Warrant Certificate shall promptly be cancelled.
 
Section 9.     The Holder Not Deemed a Stockholder; Limitations on Liability; Right to Receive Stockholder Notices. Except as otherwise specifically provided herein, prior to the issuance to the Holder of the Warrant Shares to which the Holder is then entitled to receive upon the due exercise of this Warrant Certificate, the Holder shall not be entitled to vote or receive dividends or be deemed the holder of shares of capital stock of the Company for any purpose, nor shall anything contained in this Warrant Certificate be construed to confer upon the Holder, as such, 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. In addition, nothing contained in this Warrant Certificate shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant Certificate 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 9, 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, including without limitation the financial information set forth in Section 3.1 of the Investors Rights Agreement.
 
Section 10.       Replacement on Loss; Division and Combination.
 
(a)      Replacement of Warrant Certificate on Loss. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant Certificate and upon delivery of an indemnity reasonably satisfactory to it (it being understood that a written indemnification agreement or affidavit of loss of the Holder shall be a sufficient indemnity) and, in case of mutilation, upon surrender of such Warrant Certificate for cancellation to the Company, the Company at its own expense shall execute and deliver to the Holder, in lieu hereof, a new Warrant Certificate of like tenor and exercisable for an equivalent number of Warrant Shares as this Warrant Certificate so lost, stolen, mutilated or destroyed; provided that, in the case of mutilation, no indemnity shall be required if this Warrant Certificate in identifiable form is surrendered to the Company for cancellation.
 
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(b)      Division and Combination of Warrant Certificate. Subject to compliance with the applicable provisions of this Warrant Certificate as to any transfer or other assignment which may be involved in such division or combination, this Warrant Certificate may be divided or, following any such division of this Warrant Certificate, subsequently combined with other Warrant Certificates, upon the surrender of this Warrant Certificate or Warrant Certificates to the Company at its then principal executive offices, together with a written notice specifying the names and denominations in which new Warrant Certificates are to be issued, signed by the respective Holders or their agents or attorneys. Subject to compliance with the applicable provisions of this Warrant Certificate as to any transfer or assignment which may be involved in such division or combination, the Company shall at its own expense execute and deliver a new Warrant Certificate or Warrant Certificates in exchange for this Warrant Certificate or Warrant Certificates so surrendered in accordance with such notice. Such new Warrant Certificate or Warrant Certificates shall be of like tenor to the surrendered Warrant Certificate or Warrant Certificates and shall be exercisable in the aggregate for an equivalent number of Warrant Shares as this Warrant Certificate or Warrant Certificates so surrendered in accordance with such notice.
 
Section 11.       No Impairment. The Company shall not, by amendment of its Certificate of Incorporation or Bylaws, through any shareholders, voting or similar agreement, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant Certificate and in the taking of all such action as may reasonably be requested by the Holder in order to protect the exercise rights of the Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant Certificate.
 
Section 12.       Compliance with the Securities Act.
 
(a)       Agreement to Comply with the Securities Act, etc.
 
(i)          Legend. The Holder, by acceptance of this Warrant Certificate, agrees to comply in all respects with the provisions of this Section 12 and the restrictive legend requirements set forth on the face of this Warrant Certificate and further agrees that such Holder shall not offer, sell or otherwise dispose of this Warrant Certificate or any Warrant Shares to be issued upon exercise hereof except under circumstances that will not result in a violation of the Securities Act. Subject to clause (ii) below, this Warrant Certificate and all Warrant Shares issued upon exercise of this Warrant Certificate (unless registered under the Securities Act) shall be stamped or imprinted with a legend in substantially the following form:
 
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“THIS WARRANT CERTIFICATE AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SHARES IS EFFECTIVE UNDER THE ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, IF THE COMPANY REQUESTS, AN OPINION SATISFACTORY TO THE COMPANY TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL.”
 
(ii)        Removal of Restrictive Legends. Neither this Warrant Certificate nor any certificates evidencing Warrant Shares or any other shares of Common Stock issuable or deliverable under or in connection with this Warrant Certificate shall contain any legend restricting the transfer thereof (including the legend set forth above in clause (i)) in any of the following circumstances: (A) while a Registration Statement covering the sale or resale of Warrant Shares is effective under the Securities Act, (B) following any sale of this Warrant Certificate, any Warrant Shares or any other shares of Common Stock issued or delivered to the Holder under or in connection here with pursuant to Rule 144, (C) if this Warrant Certificate, Warrant Shares or any other such share of Common Stock are eligible for sale under Rule 144(b)(1), or (D) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC) (collectively, the “Unrestricted Conditions”). The Company shall at its own cost and expense cause its counsel to issue a legal opinion to the Transfer Agent if required by such Transfer Agent to effect the issuance of Warrant Shares or the or any other shares of equity securities issuable or deliverable under or in connection with this Warrant Certificate, as applicable, without a restrictive legend or removal of the legend hereunder. If the Unrestricted Conditions are met at the time of issuance of this Warrant Certificate, the Warrant Shares or such other shares of equity securities, then this Warrant Certificate, Warrant Shares or other equity securities, as the case may be, shall be issued free of all legends.
 
(iii)      Replacement Warrant Certificate. The Company agrees that at such time as the Unrestricted Conditions have been satisfied it shall promptly (but in any event within three (3) Business Days) following written request from the Holder issue a replacement Warrant Certificate or replacement Warrant Shares or replacement shares in respect of such other Common Stock, as the case may be, free of all restrictive legends.
 
(iv)        Sale of Unlegended Shares. The Holder agrees that the removal of the restrictive legend from this Warrant Certificate and any certificates representing securities as set forth in Section 12(a)(ii) above is predicated upon the Company’s reliance that the Holder will sell this Warrant Certificate or any such securities pursuant to either an effective Registration Statement or otherwise pursuant to the requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if such securities are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein.
 
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(b)      Representations of the Holder. In connection with the issuance of this Warrant Certificate, the Holder specifically represents, as of the date hereof, to the Company by acceptance of this Warrant Certificate as follows:
 
(i)        The Holder is an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act. The Holder is acquiring this Warrant Certificate and the Warrant Shares to be issued upon exercise hereof for investment for its own account and not with a view towards, or for resale in connection with, the public sale or distribution of this Warrant Certificate or the Warrant Shares, except pursuant to sales registered or exempted under the Securities Act.
 
(ii)       The Holder understands and acknowledges that this Warrant Certificate and the Warrant Shares to be issued upon exercise hereof are “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In addition, the Holder represents that it is familiar with Rule 144 under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
 
(iii)      The Holder acknowledges that it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in this Warrant Certificate and the Warrant Shares. The Holder has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of this Warrant Certificate and the business, properties, prospects and financial condition of the Company.
 
Section 13.       Representations, Warranties and Covenants of the Company. The Company represents, warrants and covenants to the Holder that:
 
(i)         the Company has the legal capacity or corporate power and authority to enter into this Warrant Certificate and to carry out its obligations hereunder. The Company is duly organized and validly existing under the laws of its jurisdiction of organization, and the execution of this Warrant Certificate and the consummation of the transactions contemplated herein have been duly authorized by all necessary action. No other act or proceeding, corporate or otherwise, on its part is necessary to authorize the execution of this Warrant Certificate or the consummation of any of the transactions contemplated hereby thereby. This Warrant Certificate has been duly executed by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the terms of this Warrant Certificate;
 
(ii)       no consent, waiver, approval, authorization, exemption, registration, license or declaration is required to be made or obtained by the Company, other than those which have been made or obtained, in connection with (i) the execution or enforceability of this Warrant Certificate or (ii) the consummation of any of the transactions contemplated hereby;
 
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(iii)      all Warrant Shares issuable and deliverable pursuant to this Warrant Certificate shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the original issuance thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue);
 
(iv)      the issuance of this Warrant Certificate shall constitute full authority to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the Warrant Shares upon the exercise of the purchase rights under this Warrant Certificate;
 
(v)         the Warrant Shares, when issued and paid for in accordance with the terms of this Warrant Certificate, will be issued free and clear of all security interests, claims, liens and other encumbrances other than restrictions imposed by applicable securities laws;
 
(vi)        the Company will take all such action as may be reasonably necessary to assure that the shares constituting Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of any securities exchange or automated quotation system upon which the shares constituting Warrant Shares may be listed.
 
Section 14.       Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 14).
 
If to the Company:
PhenomeX Inc.
 
5858 Horton Street, Suite 320
 
Emeryville, CA 94608
 
Attention: Scott Chaplin
 
E-mail: scott.chaplin@phenomex.com

with a copy to:
Freshfields Bruckhaus Deringer US LLP
 
601 Lexington Avenue, 31st Floor
 
New York, New York 10022
 
Attention: Damien R. Zoubek
 
Oliver J. Board
 
E-mail: damien.zoubek@freshfields.com
 
oliver.board@freshfields.com
 
If to the Holder:
Perceptive Credit Holdings III, LP
 
c/o Perceptive Advisors LLC
 
51 Astor Place, 10th Floor
 
New York, NY 10003

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Attention: Sandeep Dixit
 
E-mail: Sandeep@perceptivelife.com
 
PCOFReporting@perceptivelife.com

with a copy to:
Chapman and Cutler LLP
 
1270 Avenue of the Americas
 
New York, NY 10020
 
Attention: Nicholas Whitney
 
whitney@chapman.com

Section 15.     Cumulative Remedies. Except to the extent expressly provided in Section 8 to the contrary, the rights and remedies provided in this Warrant Certificate are cumulative and are not exclusive of, and are in addition to and not in substitution for, any other rights or remedies available at law, in equity or otherwise.
 
Section 16.      Equitable Relief. Each of the Company and the Holder acknowledges that a breach or threatened breach by such party of any of its obligations under this Warrant Certificate would give rise to irreparable harm to the other party hereto for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, the other party hereto shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction. The Holder and the Company further acknowledge and agree that (i) the amount of loss or damages likely to be incurred by the Holder as a result of the Company’s breach of any its obligations hereunder is incapable or is difficult to precisely estimate and (ii) the parties hereto are sophisticated business parties and have been represented by sophisticated and able legal and financial counsel and negotiated this Agreement at arm’s length.
 
Section 17.       Entire Agreement. This Warrant Certificate constitutes the sole and entire agreement of the parties to this Warrant Certificate with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
 
Section 18.       Successor and Assigns. This Warrant Certificate and the rights evidenced hereby shall be binding upon and shall inure to the benefit of the parties hereto and the successors of the Company and the successors and permitted assigns of the Holder. Such successors and/or permitted assigns of the Holder shall be deemed to be a “Holder” for all purposes hereunder.
 
Section 19.       No Third-Party Beneficiaries. This Warrant Certificate is for the sole benefit of the Company and the Holder and their respective successors and, in the case of the Holder, permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Warrant Certificate.
 
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Section 20.       Headings. The headings in this Warrant Certificate are for reference only and shall not affect the interpretation of this Warrant Certificate.
 
Section 21.     Amendment and Modification; Waiver. Except as otherwise provided herein, this Warrant Certificate may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by the Company or the Holder of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Warrant Certificate shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
 
Section 22.       Severability. If any term or provision of this Warrant Certificate is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Warrant Certificate or invalidate or render unenforceable such term or provision in any other jurisdiction.
 
Section 23.      Governing Law. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York.
 
Section 24.    Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Warrant Certificate or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the city of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by certified or registered mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
 
Section 25.      Waiver of Jury Trial. Each of the Company and the Holder acknowledges and agrees that any controversy which may arise under this Warrant Certificate is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Warrant Certificate or the transactions contemplated hereby.
 
22

Section 26.       Counterparts. This Warrant Certificate may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Warrant Certificate delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Warrant Certificate.
 
Section 27.    No Strict Construction. This Warrant Certificate shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
 
[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the Company has duly executed this Warrant Certificate on the Amendment Date.
 
  PHENOMEX INC.
   
 
By:
/s/ Scott Chaplin
   
Name: Scott Chaplin
   
Title: Chief Legal Officer

Amended Warrant Signature Page


 
ISOPLEXIS CORPORATION
   
 
By:
/s/ Scott Chaplin
   
Name: Scott Chaplin
   
Title: Chief Legal Officer

Amended Warrant Signature Page


 
PERCEPTIVE CREDIT HOLDINGS III, LP
   
 
By:
Perceptive Credit Opportunities GP, LLC, its general partner
     
 
By:
/s/ Sandeep Dixit
   
Name:  Sandeep Dixit
   
Title:  Chief Credit Officer
     
 
By:
/s/ Sam Chawla
   
Name:  Sam Chawla
   
Title:  Portfolio Manager

Amended Warrant Signature Page


Exhibit A
to Warrant Certificate
 
FORM OF EXERCISE CERTIFICATE
 
(To be signed only upon exercise of Warrant Certificate)
 
To:                                 
 
The undersigned, as holder of a right to purchase shares of Common Stock of PhenomeX Inc., a Delaware corporation (the “Company”), pursuant to that certain Warrant Certificate of the Company, dated as of December 30, 2020 and bearing Warrant Certificate No. [      ] (the “Warrant Certificate”), hereby irrevocably elects to exercise the purchase right represented by such Warrant Certificate for, and to purchase thereunder, [            (        )] shares of Common Stock of the Company and herewith makes payment of [                    Dollars ($            )] therefor by the following method:
 
(Check all that apply):
 
          (check if applicable) The undersigned hereby elects to make payment of the Aggregate Exercise Price of [                 Dollars ($            )] for [(          )] shares of Common Stock using the method described in Section 3(b)(i).
 
          (check if applicable) The undersigned hereby elects to make payment of the Aggregate Exercise Price of [                 Dollars ($            )] for [(          )] shares of Common Stock using the method described in Section 3(b)(ii).
 
          (check if applicable) The undersigned hereby elects to make payment of the Aggregate Exercise Price of [                 Dollars ($            )] for [(          )] shares of Common Stock using the method described in Section 3(b)(iii).
 
Unless otherwise defined herein, capitalized terms have the meanings provided in the Warrant Certificate.
 
DATED:
     
   
 
PERCEPTIVE CREDIT HOLDINGS III, LP
   
 
By:
 
 

Name
 
Title

A-1

Exhibit B
to Warrant Certificate
 
FORM OF ASSIGNMENT
 
THE UNDERSIGNED, Perceptive Credit Holdings III, LP, is the holder (in such capacity, the “Holder”) of a warrant certificate issued by PhenomeX Inc., a Delaware corporation (the “Company”), bearing Warrant Certificate No. [     ] (the “Warrant Certificate”), entitling the Holder to purchase up to [      ] shares of the Company’s Common Stock. Unless otherwise defined, capitalized terms used herein have the meanings ascribed thereto in the Warrant Certificate.
 
FOR VALUE RECEIVED, the Holder hereby sells, assigns and transfers to [NAME OF ASSIGNEE] (the “Assignee”) the right to acquire [all Warrant Shares entitled to be purchased upon exercise of the Warrant Certificate] [           of the Warrant Shares entitled to be purchased upon exercise of the Warrant Certificate]. In furtherance of the foregoing assignment, the Holder hereby irrevocably instructs the Company to (i) memorialize such assignment on the Warrant Register as required pursuant to Section 7 of the Warrant Certificate, and (ii) pursuant to Section 8 of the Warrant Certificate, execute and deliver to the Assignee [and the Holder] a new Warrant Certificate [new Warrant Certificates] reflecting the foregoing assignment ([each] a “Substitute Warrant Certificate”).
 
The Assignee acknowledges and agrees that its Substitute Warrant Certificate and the Warrant Shares to be issued upon exercise thereof are being acquired for investment and that the Assignee will not offer, sell or otherwise dispose of its Substitute Warrant Certificate or any Warrant Shares to be issued upon exercise or conversion thereof except under circumstances which will not result in a violation of the Securities Act or any applicable state securities laws. The Assignee represents and warrants for the benefit of the Company that the Assignee is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended.
 
To the extent required pursuant to Section 12 of the Warrant Certificate, the Assignee acknowledges and agrees that a restrictive legend shall be applied to the Assignee’s Substitute Warrant Certificate and the Warrant Shares issuable upon exercise of such certificate substantially consistent with the legend set forth in Section 12(a)(i).
 
[SIGNATURE PAGE FOLLOWS]
 
B-1

 
PERCEPTIVE CREDIT HOLDINGS III, LP
   
 
By:
 
 

Name
 

Title
   
 
Accepted and agreed,
   
 
[NAME OF ASSIGNEE]
   
 
By:
 
 
Name
 
Title
 

B-2


Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
 
We consent to the incorporation by reference in Registration No. 333- 258704 on Form S-3, and Registration Statement No. 333-239987, 333-254399, 333-263243 and 333-270041 on Form S-8 of PhenomeX Inc. of our report dated March 2, 2023, relating to the financial statements of IsoPlexis Corporation incorporated by reference in this Current Report on Form 8-K dated March 21, 2023 appearing in the Annual Report on Form 10-K of IsoPlexis Corporation for the year ended December 31, 2022.
 
/s/ Deloitte & Touche LLP
 
Hartford, Connecticut
March 21, 2023



 

Exhibit 99.1
 
Berkeley Lights Completes Acquisition of IsoPlexis Forming PhenomeX, the Functional Cell Biology Company
 
03/21/2023
 
PhenomeX to begin trading under symbol (NASDAQ: CELL)
 
EMERYVILLE, Calif., March 21, 2023 /PRNewswire/ -- Berkeley Lights, Inc. (Nasdaq: BLI), a life sciences tools company, today announced that it has completed its previously announced acquisition of IsoPlexis Corporation (Nasdaq: ISO), a company empowering labs to leverage the cells and proteome changing the course of human health. The newly combined company has been renamed PhenomeX and its common stock will begin trading on Nasdaq under the ticker symbol "CELL" at market open tomorrow.
 
PhenomeX is positioned to be the leading provider of life sciences solutions that have the greatest impact advancing the era of the phenome as the next revolution in biology and medicine unfolds. Its brand reflects the Company's mission to empower scientists to leverage the full potential of each cell and drive the next era of functional cell biology that will advance human health. The new company aims to offer a compelling value proposition to customers, partners, and shareholders by:
 

Offering an expanded product portfolio at different price points with a focus on recurring revenue;

Growing its share in a larger cell biology market through expanding its diversified customer base

Enhancing its commercial scale and execution;

Delivering $70 million in cost synergies to pursue profitability and advance the path to cash flow breakeven; and

Serving as a platform for further consolidation in the high-growth, single-cell biology tools space.
 
The successful combination of Berkeley Lights and IsoPlexis lays the foundation for a financially strong life sciences tools company. In 2022, the two companies generated combined revenues of approximately $95 million, and the new company now has an installed instrument base of more than 400 units, including those placed with each of the top 15 pharmaceutical companies and approximately 85% of comprehensive cancer centers in the United States. PhenomeX will have a global commercial footprint with more than 100 talented customer-facing employees. This increased commercial footprint will vastly strengthen its ability to reach academic, biopharma and CRO companies across all geographies with an accelerated product roadmap. PhenomeX will also be significantly advantaged by an expansive intellectual property estate of more than 600 patents, giving the new company an edge unmatched by its competitors in the market.
 

"Today begins a new chapter as we bring together two industry pioneers focused on empowering researchers to make breakthrough discoveries by leveraging the full potential of functional cell biology," said Siddhartha Kadia, Ph.D., chief executive officer of PhenomeX. "As PhenomeX, we intend to continue our transformation into a growing and sustainable life sciences company and advance our path to profitability by accelerating our progress across every core pillar of our strategic plan. I look forward to working closely with our team to capture the significant opportunities we see ahead to power the next revolution in science and medicine while delivering value for our shareholders."
 
Share Distribution
 
Under the terms of the merger agreement entered into on December 21, 2022, IsoPlexis shareholders received, for each share of IsoPlexis stock, 0.612 shares of Berkeley Lights common stock (which will be automatically converted into shares of PhenomeX common stock). With the transaction complete, former Berkeley Lights and IsoPlexis shareholders own approximately 75.2 percent and 24.8 percent of the combined company, respectively.
 
Advisors
 
Cowen is acting as financial advisor to Berkeley Lights, and Freshfields Bruckhaus Deringer LLP is serving as legal counsel. Evercore is serving as financial advisor to IsoPlexis and Cravath, Swaine & Moore LLP is serving as legal counsel.
 
About PhenomeX Inc.
 
PhenomeX is empowering scientists to leverage the full potential of each cell and drive the next era of functional cell biology that will advance human health. We enable scientists to reveal the most complete insights on cell function and obtain a full view of the behavior of each cell. Our unique suite of proven high-throughput tools and services offer unparalleled resolution and speed, accelerating the insights that are key to advancing discoveries that can profoundly improve the prevention and treatment of disease.  Our award-winning platforms are used by researchers across the globe, including those at the top 15 global pharmaceutical companies and approximately 85% of leading U.S. comprehensive cancer centers.
 

Forward-Looking Statements
 
This press release contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. Such forward-looking statements are based on the Company's beliefs and assumptions and on information currently available to it on the date of this press release. In some cases, you can identify forward-looking statements by the words "aim," "anticipate," "believe," "continue," "could," "estimate," "expect," "intend," "may," "ongoing," "plan," "positioned," "potential," "predict," "project," "should," "will," "would" or the negative of these terms or other comparable terminology, although not all forward-looking statements contain these words. All statements contained in this release that are not statements of historical fact are forward-looking statements, including but not limited to statements regarding expected benefits from the merger with IsoPlexis, including anticipated cost synergies and the brand and positioning of the combined company; our ability to achieve profitability and breakeven; our ability to generate shareholder value; the capabilities and attractiveness of our platform; our ability to retain key personnel; market opportunities and anticipated growth in the markets we serve; our ability to grow market share, expand our customer base and generate recurring revenue; our ability to expand our product portfolio; and the sustainability of our business. Forward-looking statements may involve known and unknown risks, uncertainties and other factors that may cause the Company's actual results, performance or achievements to be materially different from those expressed or implied by the forward-looking statements. There are a significant number of factors that could cause our actual results to differ materially from statements made in this press release, including but not limited to [the effect of the merger with IsoPlexis on various aspects of our ongoing business operations, including employees, distributors, customers and suppliers; the possibility that expected synergies and operating efficiencies in connection with the merger may not be achieved within the expected timeframes or at all; the risk that integration of IsoPlexis' operations into those of the combined company may be more difficult, time-consuming or costly than expected; the possibility that our expectations as to cost synergies, expenses, cash usage and cash needs may prove not to be correct; the impacts of changes in general economic and business conditions, including changes in the financial markets; potential challenges in the implementation of strategic plans for products and technologies, and challenges inherent in developing, manufacturing, launching, marketing and selling existing and new products; uncertainties in contractual relationships, including interruptions or delays in the supply of components or materials for, or manufacturing of, products; and the additional risks and uncertainties discussed in each of Berkeley Lights' and IsoPlexis' filings with the SEC, including Berkeley Lights' and IsoPlexis' Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K.  Except to the extent required by law, we undertake no obligation to update such statements to reflect events that occur or circumstances that exist after the date on which they were made.